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 a DNA, refused to enlist in the military according to his religious conscience and has justifiable grounds 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. On August 23, 2016, the Defendant issued a notice of enlistment for active duty service in the name of the director of the Chungcheong Military Manpower Office to enlistment in the area of the person to be enlisted in the active duty service, in the Defendant’s residence located in ASEAN-si B, and in the 37 group located in Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si by e-mail to October 11, 2016, but did not enlist without justifiable grounds for three days after the date of enlistment.
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 enforce the performance of military service and punish conscientious objectors against their non-performance.