The meaning of the so-called conscientious objection / Whether conscientious objection based on a genuine conscience constitutes “justifiable cause” under Article 88(1) of the former Military Service Act (affirmative)

Articles 19, 37(2), and 39 of the Constitution of the Republic of Korea; Article 88(1) of the former Military Service Act (Amended by Act No. 12560, May 9, 2014); Article 308 of the Criminal Procedure Act

Supreme Court en banc Decision 2004Do2965 Decided July 15, 2004 (Gong2004Ha, 1396) Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018 (Gong2018Ha, 2401)

Defendant

Defendant

Attorney O Jin-jin

Daegu District Court Decision 2013No3955 Decided July 10, 2014

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. The so-called conscientious objection and so-called conscientious objection mean refusing to perform the duty of military service accompanied by 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 former Military Service Act (amended by Act No. 12560, May 9, 2014; hereinafter “former Military Service Act”) provides that a person shall be punished by imprisonment with prison labor for not more than three years for refusal of enlistment in active service. This is because the State’s security guaranteed under the Constitution, the national defense duty, and the national defense duty granted to citizens is not any emphasis (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004). Unless the State’s existence exists, the duty of national defense serves as a foundation for guaranteeing fundamental rights. The duty of national defense must faithfully perform the duty of military service, and the military administration should also perform the duty of military administration in a fair and strict manner. Accordingly, the Constitution guaranteeing the freedom of conscience should not neglect the foregoing value. Accordingly, whether to grant conscientious objection should be a matter of conflict and coordination between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the duty 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. conscientious objectors are not denied the duty of national defense itself 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 status of conscientious objection as well as our economic power, national defense power, and citizens’ high security awareness, etc., permitting conscientious objection cannot be deemed as significantly difficult to achieve national security and national defense. Therefore, forcing genuine conscientious objectors to perform the duty of military service accompanied by arms and training and punishing such conscientious objectors for nonperformance may excessively restrict the freedom of conscience or threaten essential elements.

In short, sanctions, such as criminal punishment, should not be imposed on a person who fails to perform the duty of military service accompanied by arms and training on the ground of one’s inner conscience. uniformly compelling conscientious objectors to perform the duty of military service and imposing criminal punishment, etc. against nonperformance is not only unreasonable in light of the fundamental rights guarantee system under the Constitution, including the freedom of conscience, and the overall legal order, but also violates the spirit of free democracy, i.e., tolerance and tolerance for the minority. Therefore, if conscientious objectors are conscientious objection based on genuine conscience, such refusal constitutes “justifiable cause” under Article 88(1) of the former Military Service Act.

In a case involving a specific violation of the Military Service Act, where a defendant asserts conscientious objection, it cannot directly and objectively prove conscience that is human aspect, and thus, it should be determined by means of proving indirect or circumstantial facts relevant to conscience in light of the nature of things (see Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018).

2. The lower court upheld the first instance judgment convicting the Defendant of the charges of this case on the ground that the refusal of enlistment in active duty service on the ground of the religious doctrine as a witness by the Defendant’s believers does not constitute “justifiable cause” as prescribed by Article 88(1) of the former Military Service Act. Such determination by the lower court is based on the previous opinion of the Supreme Court. However, inasmuch as the Supreme Court en banc Decision changed the view that conscientious objection based on a genuine conscience constitutes a ground for excluding the element of “justifiable cause” as prescribed by Article 88(1) of the former Military Service Act by the en banc Decision, the lower judgment contrary thereto erred by misapprehending the legal doctrine on “justifiable cause” as prescribed by the foregoing provision, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)