The accused shall notify publicly the summary of the judgment of innocence.

Defendant, as the believers of D Religious Organizations, refused enlistment according to conscience and there exists a justifiable reason under Article 88(1) of the Military Service Act. Nevertheless, the lower court erred by misapprehending the legal doctrine that found Defendant guilty of the facts charged in this case, thereby adversely affecting the conclusion of the judgment.

2. The facts charged in this case

Even though the Defendant received a written notice of enlistment in active duty service from the Eunpyeong-gu Seoul Metropolitan Government Group B building C to November 27, 2016 on September 28, 2016, the Defendant failed to enlist in active duty service on the religious ground that it is a person subject to enlistment in active duty service and is a believers of D Religious Organizations, without justifiable grounds, within three days from the date of enlistment.

3. The judgment of the court below

The lower court found the Defendant guilty of the facts charged in this case on the ground that the Defendant’s refusal to enlist according to his religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act. The judgment of the lower court on April 4.

A. Relevant legal principles

In determining whether a “justifiable cause” exists under Article 88(1) of the Military Service Act, the purpose and function of the Military Service Act, the position in which the performance of the duty of military service has been carried out in the overall legal order including the Constitution, social reality and changing the times, as well as the specific and individual circumstances faced by the defendant

The so-called conscientious objection and the so-called conscientious objection pursuant to one’s conscience refers to an act of refusing the performance of the duty of military service accompanied by gathering or training military arms on the grounds of a conscientious decision based on a religious, ethical, moral, philosophical, or other similar motive formed. The uniform coercion of the performance of the duty of military service to conscientious objectors and imposing sanctions, such as criminal punishment against nonperformance is unreasonable in light of the fundamental rights guarantee system and overall legal order, including the freedom of conscience, and also contravenes the spirit of free democracy, i.e., tolerance and tolerance for the minority. Therefore, in the event of conscientious objection based on a genuine conscience, such conscientious objection ought to be deemed as constituting “justifiable cause” under Article 88(1) of the Military Service Act. In such a case, a genuine conscience refers to a devout, firm, and sincere conscience. As such, the determination of whether conscientious objectors is a genuine conscientious objection by means of proving indirect or circumstantial facts relevant to conscience given the nature of things can be made (see Supreme Court en banc Decision 2016Do1012, Nov. 1, 2018).

B. Determination

In light of the following circumstances, the lower court and the first instance court’s duly admitted and investigated evidence, the Defendant’s conscientious objection is based on a conscientious decision formed on the basis of religious, inner values and ethical judgment, and appears to fall under justifiable grounds under Article 88(1) of the Military Service Act, and the evidence submitted by the prosecutor alone is insufficient to deem that there is no justifiable reason for the Defendant to refuse enlistment. Nevertheless, the lower court erred by misapprehending the legal doctrine that found the Defendant guilty of the facts charged in the instant case. The Defendant’s assertion has merit.

1) The doctrine of ‘D religious organization’ orders the exclusion of all violent acts according to Chapter 2, Chapter 4, etc., and the refusal of military and military actions, such as military arms, and the 'D religious organization’ actually contributes military service on the ground of religious conscience. Before the above Supreme Court en banc Decision, most of the believers, among the 'D religious organization to which the Defendant belongs, were sentenced to military service on the ground of conscientious objection, were sentenced to punishment by the court.

2) The Defendant, under the influence of the parents, who are the believers of a D religious organization, was naturally 'D religious organization' and became a new 'D religious organization' from the time of their birth, and became a 'D religious organization' due to the d religious organization on May 11, 2013.

3) The Defendant seems to have been engaged in religious activities, such as attending regularly assemblies as its members among the F societies of D religious organizations, attending a large and small-scale event related to D religious organizations, etc.

4) The Defendant did not have any history of criminal punishment, and there is no evidence to deem that the Defendant had shown violent inclinations (it cannot be deemed that the Defendant had violent inclinations solely on the ground that the Defendant had engaged in Internet games, which include violent contents, but are merely temporary entertainment).

5) The Defendant had experience of viewing video works that contain obscene contents against the doctrine of ‘D religious organization’. However, the Defendant stated to the effect that he was able to view obscene contents as being short of others’, and the Defendant’s statement to the effect that obscenity was made, and on the sole basis of the foregoing circumstances, the Defendant’s statement of intent against the enlistment in the real estate cannot be deemed as false.

6) Prior to the final decision of the Constitutional Court that “the military service clause that does not stipulate the alternative military service system for conscientious objectors infringe on the freedom of conscience,” the Defendant already refused to enlist in the military upon the criminal punishment of imprisonment with prison labor for a period of one year and six months on the ground of one’s religious belief.” Before the Supreme Court en banc Decision 88(1) of the purport that “the conscientious objection based on a genuine conscience constitutes justifiable cause under Article 88(1) of the Military Service Act.”

5. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the following is ruled again.

[Grounds for multi-use Judgment]

The facts charged of this case are as stated in Paragraph (2) above. The facts charged of this case constitute a case where there is no proof of facts charged as stated in Paragraph (4) above, and thus, it constitutes a case where there is no proof of facts

The judgment shall be pronounced not guilty and the summary of this judgment shall be announced in accordance with the main sentence of Article 58 (2) of the Criminal Act.

For judge Lee Jin-hoon

Judges fixed-term