2017No2040 Violation of the Military Service Act

A

Defendant

Beforeman (Public prosecution) and a senior public trial (public trial)

Gwangju District Court Decision 2017Kadan46 decided May 12, 2017

June 20, 2019

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

The Defendant, as a believers, refused to enlist in the military according to his religious conscience and there exists a justifiable reason 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. Summary of the facts charged

A person who has received a notice of enlistment in active duty service shall enlist within three days from the date of enlistment, except in extenuating circumstances.

The Defendant, at around 13:36 on November 9, 2016, was served with a notice of enlistment in active service, to enter the Army Training Center located in Chungcheongnam-si, Chungcheongnam-si on December 12, 2016, but was served with a registered mail on December 12, 2016, failed to enlist within three days from the date of enlistment without justifiable grounds.

3. Determination

A. The judgment of the court below

The lower court found the Defendant guilty of the instant charges on the ground that the refusal of enlistment on active duty based on religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.

B. Judgment of the court below

1) Relevant legal principles

Military service objection or so-called conscientious objection refers to an act of refusing to perform the duty of military service involving military training or arms on the grounds of conscientious decisions formed in religious, ethical, moral, philosophical, or other similar motives.

Article 88(1) of the Military Service Act provides that a person who refuses enlistment in active service shall be punished by imprisonment with prison labor for not more than three years. This is because national security under the Constitution, the duty of defense against land, and the duty of national defense given to citizens is not any emphasis. This is because there is no existence of the State, the foundation of guaranteeing fundamental rights lies therein. The duty of military service specified in the duty of national defense ought to be faithfully performed and the military administration ought to be fairly and strictly executed. The same value should not be neglected on the grounds that the Constitution guarantees the freedom of conscience. Accordingly, the issue of permitting conscientious objection is the conflict and coordination between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the norm of national defense under Article 39 of the Constitution.

However, the restriction on the freedom of conscience realization by passive omission may be an excessive restriction on the freedom of conscience or a threat to the inherent substance of the freedom of conscience. conscientious objectors constitute the realization of conscience by such passive omission. A conscientious objectors are not denied the duty of national defense per se under the Constitution. On the other hand, conscientious objectors are merely refusing to perform the duty of national defense on the grounds that under the law embodying the duty of national defense as well as an act accompanying military training or arms determined by the method of performing that duty of military service cannot be conducted.

In light of the current state of conscientious objection, Korea’s economic power and national defense, as well as citizens’ high awareness of security, etc., permitting conscientious objection does not seem to have great difficulty in ensuring national security and national defense. Therefore, forcing genuine conscientious objectors to perform the duty of military service accompanying military training and bearing arms or punishing such nonperformance constitutes an excessive restriction on the freedom of conscience or a threat to essential substance. In short, imposing sanctions, such as criminal punishment, against those who refuse to perform military service accompanying military training and bearing arms on one’s inner-formed conscience, should not be imposed. In short, uniformly compelling conscientious objectors to perform the duty of military service and imposing sanctions, such as criminal punishment, are unreasonable in light of the constitutional basic rights system including the freedom of conscience, and the overall legal order. Therefore, if conscientious objectors are conscientious objectors based on genuine conscience, such conscientious objectors constitute “justifiable cause” as prescribed by Article 88(1) of the Military Service Act, and thus, such conscientious objectors ought to be determined devout or devout with a firm belief that such conscientious objectors will not have any influence on that person’s belief.

2) Specific determination

Examining the following circumstances found by the evidence duly admitted and examined by the court below and the court below in light of the legal principles as seen earlier, since conscience as C, for which the defendant is unable to perform his duty of military service according to a religious doctrine, is devout, firm, true and genuine conscience, it is reasonable to view that the defendant’s refusal to enlist in active service has justifiable grounds under Article 88(1) of the Military Service Act. Nevertheless, the court below erred by misapprehending the legal principles and the defendant’s assertion pointing this out is with merit.

A) From the time of the Defendant’s birth, the Defendant entered a written sexual intercourse with C’s parents’ consent, and was regularly accepted on August 14, 2010, and came C with C’s religious belief and had been living according to that religious belief. (B) After the Defendant’s invasion, the Defendant is currently attending an assembly as a member of E on a regular basis, and continues to engage in religious activities by means of transfer and service activities.

C) Upon receipt of the enlistment notice, the Defendant submitted to the Military Manpower Administration a written notification sent to the Military Manpower Administration that he will not enlist in the military according to one’s conscience, and a written confirmation of the fact of Ccerology, which is called C.). The Defendant’s living record is written as follows: (d) the Defendant’s living record is written as follows: (i) the Defendant’s sexual character is only friendly with respect to the Defendant’s sexual character, and the Defendant’s sexual character was able to do his best on the given day as a student with strong and reliable character; and (ii) the Defendant did not have any violent tendency contrary to his religious belief during the growth process.

E) The Defendant stated that the use of a weapon for life under the influence of the sexual intercourse, such as “I would not know about the war by cutting off the war (Chapter 4 of Chapter 2),” “I would know about the intention of conscientious objection on the ground of religious belief and conscience” (section 22 of Chapter 29), and “I would like to implement the pure civil alternative military service system when I implemented.” The Defendant stated that I would like to refuse enlistment in active duty service against his own religious belief or freedom of conscience, and that I would like to consistently accept the risk of criminal punishment in the trial even if I had been sentenced for 1 year and six months of imprisonment.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act and the following is ruled again.

【Discretionary Judgment】

The summary of the facts charged in this case is as stated in Paragraph (2) above. This constitutes a case where there is no proof of crime as seen in Paragraph 3-b above, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this decision is announced in accordance with the main sentence of Article 58(2) of the Criminal Act. It is so decided

The presiding judge, Park Jong-chul

Judges Yellow Superintendent

For judges' awards: