병역법위반
The judgment of the court below is reversed.
The accused shall disclose the summary of the judgment of innocence.
1. The summary of the grounds for appeal (definite or misunderstanding of legal principles) is C believers who refuses to enlist in the military according to religious conscience, and there is a justifiable reason under Article 88(1) of the Military Service Act.
2. The summary of the facts charged is that the Defendant, as a person subject to enlistment in active duty service on October 1, 2017, was the Defendant’s office located on the eightth floor of the Gangnam-gu Seoul Metropolitan building in Gangnam-gu, Seoul, and that “be admitted to the Army according to the third group of soldiers’ disease education by December 5, 2017,” the Defendant confirmed the e-mail attached to the notification of enlistment in active duty service under the name of the head of the Gyeonggi Northern Branch Military Manpower Branch Office, and did not comply with the call without justifiable grounds by
3. The lower court found the Defendant guilty on the charges on the ground that the Defendant’s refusal to enlist according to one’s religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.
4. Judgment of the court below
A. In determining whether there exists a “justifiable cause” 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 is held by the overall legal order including the Constitution, social reality, and changing the times, as well as the specific and individual circumstances facing the Defendant should be considered.
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 based on genuine conscience.