병역법위반
The judgment of the court below is reversed.
The defendant is innocent. The summary of this judgment shall be notified publicly.
1. The summary of the grounds for appeal is that the defendant, as the believers of D 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 was a person subject to enlistment in active duty service; that was, around October 12, 2016, at the Defendant’s residence; and that was, until November 28, 2016, “be enlisted according to the class of the 9th class of the 9th class of the 9th class of the Sinsan-dong, Sinyang-si, Sinyang-si,” the Defendant did not enter the army without justifiable grounds for three days from
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. In determining whether there exists “justifiable cause” as prescribed by Article 88(1) of the Military Service Act, not only the purpose and function of the Military Service Act, the location where the performance of the duty of military service has been carried out in the overall legal order including the Constitution, the social reality and the change of the times, etc., but also the specific and individual circumstances that the Defendant is faced
Military service objection and so-called conscientious objection mean refusing to perform the duty of military service accompanied by military training or arms on the ground of conscientious decisions based on conscience established in religious, ethical, moral, philosophical or similar motives.
It is not reasonable in light of the fundamental rights guarantee system and the overall legal order, including the freedom of conscience, to uniformly compel conscientious objectors to perform the duty of military service and impose sanctions such as criminal punishment against non-performance of the duty of military service, and also violates the spirit of free democracy such as tolerance and tolerance of the minority.
Therefore, it is true.