병역법위반
The judgment of the court below is reversed.
The defendant shall be innocent.
1. The summary of the grounds for appeal is that the defendant, as the believers of religious organizations, refused to enlist in the army according to his religious conscience, and there are justifiable reasons under Article 88(1) of the Military Service Act.
Nevertheless, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
2. The summary of the facts charged is that the defendant, who received a notice of call-up for enlistment as a person subject to active duty service, shall respond to the call within three days.
Nevertheless, the Defendant, at around October 15, 2015, received the notice of enlistment in active duty service under the name of the director of the regional military manpower office in Chuncheon-si, Gangwon-do and received the said notice from the Defendant’s office located in Yan-gun B to November 3, 2015 from 14:00 to November 3, 2015, but did not, without justifiable grounds, enlist within three days from the date of enlistment on the ground that it conflicts with the Defendant’s religious belief as a new religious organization. < Amended by Presidential Decree No. 26748, Nov. 7, 2015>
3. Determination
A. The lower court found the Defendant guilty of the instant facts charged on the ground that the refusal of enlistment on active duty based on a religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.
B. The so-called conscientious objection according to the relevant legal doctrine 1 as to the trial of the political party refers to refusing to perform the duty of military service involving participation in military training or arms on the ground of conscientious decision formed in religious, ethical, philosophical or other similar motives.
Article 88 (1) of the Military Service Act shall be punished by imprisonment with prison labor for not more than three years for an act rejecting enlistment in active service.
In the Constitution, there is no emphasis on the national security, the new duty of national defense, and the duty of national defense given to the people.
If there is no existence of the nation, the foundation of guaranteeing fundamental rights will collapse.
Military service is specified as a duty of national defense.