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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal does not constitute a case where there is a justifiable reason under Article 88(1) of the Military Service Act to refuse enlistment in accordance with a religious conscience as a believers of “C religious organization” and does not constitute a case where there is a justifiable reason under Article 88(1) of the same Act. In addition, despite the lack of materials submitted by the Defendant as to whether the above justifiable reason exists, there is insufficient reason to refuse enlistment, the judgment of the court below which acquitted
2. Determination
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 constitutional system of guaranteeing fundamental rights, including the freedom of conscience, and the overall legal order, and also violates the spirit of free democracy such as tolerance and tolerance of minority objectors.
Therefore, if a genuine conscience is conscientious objection, such objection ought to be deemed as constituting “justifiable cause” under Article 88(1) of the Military Service Act.
At this time, genuine conscience refers to devout, firm, and sincere conscience.
Since it is impossible to directly and objectively prove a human inner conscience, there is an indirect fact or fact related to conscience given the nature of an object.