The defendant shall be innocent.

The defendant in the facts charged of this case shall respond to the call within three days from the call for enlistment in active duty service, and upon receipt of the call notice.

Nevertheless, the Defendant, on October 30, 2017, did not respond to the call without justifiable grounds until December 14, 2017, when he/she directly received a muster notice under the name of the director of the Daejeon District Military Manpower Office in order to convene the 22 company located in the Gyeong-gu, Chungcheongnam-gu, Dong-gu, Chungcheongnam-gu, Incheon-gu, the Defendant’s residence, as of December 11, 2017.

Maz.

1. The fact that there is no “justifiable cause” under Article 88(1) of the Military Service Act is a constituent element of crime, and the prosecutor must prove it.

However, proving the absence of genuine conscience is similar to proving the absence of a fact that is not specified in a period and space.

Inasmuch as proving the absence of such unclear fact is impossible by social norms, but it is more easy to assert and prove the existence thereof, such circumstance should be considered when determining whether the prosecutor fulfilled the burden of proof.

Therefore, the Defendant asserting conscientious objection is able to prove the absence of genuine conscience by presenting prima facie evidence that he is imminent and specific that his value of existence as a human being will be destroyed if he does not act according to his conscience, and that his conscience is devout, firm, and sincere. The prosecutor can prove the absence of genuine conscience by impeachmenting the credibility of the materials presented.

(See Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018). In full view of the following circumstances acknowledged by the record, it is difficult to deem that the evidence submitted by a prosecutor alone was proven without reasonable doubt that the Defendant rejected military service without justifiable grounds.

D Religious organizations;