병역법위반
The judgment of the court below is reversed.
The defendant is not guilty. The summary of the above judgment shall be publicly notified.
Summary of Grounds for Appeal
The Defendant, as the so-called “B religious organization,” refused to enlist in active duty service on the ground of a firm and sincere conscience formed 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.
Judgment
A. The summary of the facts charged in the instant case is the believers of a religious organization B.
When a defendant receives a written notice of enlistment as a person in active duty service, he shall enlist within three days from the date of enlistment.
Nevertheless, on October 28, 2017, the Defendant received a notice of enlistment as the Army Training Center on December 26, 2017 by e-mail (C) around October 28, 2017, and failed to enlist without justifiable grounds by October 30, 2017, even though the above notice was confirmed on October 30, 2017.
B. 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.
C. 1) The relevant legal doctrine (see, e.g., Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018) guarantees the freedom of conscience under the Constitution and Article 19 of the Constitution that guarantees the freedom of conscience by stipulating that “all citizens have the freedom of conscience.”
The freedom of conscience is a moral, mental, and intellectual existence, which is assumed by the Constitution as the highest value, and is a basic condition to maintain human dignity, and is a premise for the establishment of a democratic system. Therefore, it is necessary to guarantee high level in comparison with other fundamental rights.
Supreme Court Decision 2008Da38288 Decided April 22, 2010