The judgment of the court below is reversed.

The defendant is innocent. The summary of this judgment shall be notified publicly.

1. The summary of the grounds for appeal (in fact-finding or misunderstanding of legal principles) is that the Defendant, as a D believers, refused to enlist according to that religious conscience and has a justifiable reason under Article 88(1) of the Military Service Act.

Nevertheless, the court below erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of the judgment.

2. The summary of the facts charged is that the Defendant was a person subject to enlistment in active duty service; that was, around May 16, 2017, at the Defendant’s residence; and that was, until June 19, 2017, to the Army Training Center, the Defendant did not enter the army for three days from the date of enlistment without justifiable grounds, even though he received a written enlistment notice.

3. Determination

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

B. The so-called conscientious objection according to the relevant legal doctrine 1 as to the trial of the political party refers to refusing to perform the duty of military service involving participation in military training or arms on the ground of conscientious decision formed in religious, ethical, philosophical or other similar motives.

Article 88(1) of the 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.

In the Constitution, there is no emphasis on the national security, the new duty of national defense, and the duty of national defense given to the people.

If there is no existence of the nation, the foundation of guaranteeing fundamental rights will collapse.

The duty of military service specified in the duty of national defense shall be faithfully performed, and the military administration shall also be fairly and strictly executed.

Inasmuch as the Constitution guarantees the freedom of conscience, such value should not be neglected.

Therefore, whether conscientious objection is permitted is the norm of fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the Constitution.