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 grounds for appeal is that the Defendant, as the believers of religious organizations, refused to enlist in the army according to religious conscience, and there is a justifiable reason under Article 88(1) of the Military Service Act.
2. The gist of the facts charged is a person to be enlisted in active service.
In August 15, 2017, the Defendant’s office located in the Defendant’s office located in the racing-si B, and the Defendant’s mother, through the Defendant’s mother, “2011.” in the indictment written on August 15, 2017 is erroneous.
9. On November 1, 197, the Daegu High Military Manpower Office received a notice of enlistment in active duty service in the name of the director of the regional military manpower office in the Daegu High Military Manpower Training Center located in the Chungcheongnam-si, Chungcheongnam-si.
Nevertheless, the Defendant, as he “C religious organization,” did not enlist in the military without justifiable grounds by the date on which three days elapsed from the date of enlistment, such as asserting that the military duty goes against the Defendant’s personal conscience.
3. Determination
A. The so-called conscientious objection according to the legal doctrine on conscientious objection and the so-called conscientious objection mean refusing to perform the duty of military service accompanied by participation in military training or arms on the grounds of conscientious decision formed in religious, ethical, moral, and philosophical or other similar motives.
Article 88(1) of the Military Service Act provides that a person shall be punished by imprisonment with prison labor for not more than three years for refusal of 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.
The duty of military service specified in the duty of national defense shall be faithfully performed, and the military administration shall also be fairly and strictly executed.
Inasmuch as the Constitution guarantees the freedom of conscience, such value should not be neglected.
Therefore, whether to allow conscientious objection is a matter of conflict between fundamental rights such as freedom of conscience under Article 19 of the Constitution and the duty of national defense under Article 39 of the Constitution.