병역법위반
The judgment of the court below is reversed.
The defendant is not guilty, and the summary of the judgment of innocence is publicly notified.
1. The summary of the facts charged in the instant case is a person subject to enlistment in active service, and the Defendant did not enlist in the military by the date three days have elapsed from the date of enlistment without justifiable grounds, even though he received a written notice of enlistment in active duty service under the name of the director of the regional military manpower office to be enlisted in the Army Training Center located in the city of Busan on May 10, 2016 from B to June 7, 2016.
2. The lower court found the Defendant guilty of the instant charges on the ground that even if the Defendant refused enlistment based on a religious belief, that alone does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.
3. The summary of the grounds for appeal (definite or misunderstanding of legal principles) is so-called “D” and the Defendant refused to enlist in active duty service on the ground of a firm and sincere conscience established by a religious belief. Therefore, it is reasonable to deem that the Defendant has “justifiable cause” to refuse enlistment under Article 88(1) of the Military Service Act.
Nevertheless, the court below convicted the Defendant of the facts charged on a different premise. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.
4. Judgment of the court below
A. Relevant legal doctrine (see, e.g., Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018)) 1) The freedom of conscience under the Constitution and Article 19 of the Constitution on the limitation thereof guarantees the freedom of conscience by stipulating “all citizens shall enjoy the freedom of conscience.” The freedom of conscience is a basic condition for maintaining human dignity as a moral, mental, and intellectual existence, which is assumed by the Constitution as the highest value, and is a premise for a resolution for existence of a democratic system (see, e.g., Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010). The freedom of conscience is in accordance with the freedom to form conscience and conscience.