2018 Highest 52 Violation of the Military Service Act

A (97-1)

June 11, 2019

The defendant shall be innocent.

The summary of this decision shall be published.

Punishment of the crime

The defendant is a person subject to enlistment in active service.

On October 11, 2017, the Defendant received a written notice of enlistment in active duty service to the effect that he will enlist from the Defendant’s office located in the original city to ○○○ Group located in November 28, 2017 through his father B, from the Defendant’s office located in the original city, but did not enlist without justifiable grounds.

Judgment of this Court

1. Relevant legal principles

A conscientious objection that fails to perform the duty of military service accompanied by military training and bearing arms on the ground of a genuine conscience decision based on a religious, ethical, moral, philosophical, or other similar motive formed on his own inside and outside constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

Here, conscience as referred to in this context refers to a devout, firm, and sincere belief. The devout belief means that it has a deep depth of a person and that it affects all his thoughts and actions. The entire life ought to be under the influence of that belief. The firm belief means that it does not necessarily mean that it is a dynamic or variable. Although it does not necessarily mean that it does not necessarily have a fixed and variable, that the belief has an obvious substance, and that it does not change easily as it means that it does not change. The belief means that there is no falsity that the belief is true, and that it is neither compromise nor strategic depending on circumstances. Even if a conscientious objector has a devout and firm belief, if he acts differently depending on circumstances in relation to that belief, such belief is difficult to view it as true.

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

2. Determination

Examining the above legal principles, based on the evidence submitted by the Defendant and records (i.e., the formation process of the Defendant’s religious belief, Defendant’s religious activities, Defendant’s reason for refusal of military service, and Defendant’s position related to alternative military service) and the foregoing legal principles were observed, since the Defendant’s conscience as a female witness falls under conscientious objection based on a devout, firm, and sincere conscience that the Defendant is unable to perform military service according to a religious doctrine constitutes conscientious objection according to a genuine conscience, the refusal of enlistment constitutes “justifiable cause” under Article 88(1) of the Military Service Act, and the evidence submitted by the Prosecutor alone cannot be deemed as proven to the extent that there is no justifiable reason.

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is publicly announced pursuant to Article 58(2)

Judges Kim Tae-tae