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 is that the defendant, as the believers of D religious organizations, refused to enlist in the army according to his religious conscience, and there are justifiable reasons 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. On October 27, 2016, the summary of the facts charged, the Defendant was not enlisted until the 24th of the same month on the religious ground that he was a D religious organization, even though he received a notice of enlistment in active duty service under the name of the director of the regional military manpower office in Gwangju-nam Military Manpower Administration on November 21, 2016.

As a result, the defendant did not enlist within three days from the date of enlistment without any justifiable reason even though he received a notice of enlistment in active service.

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.

The Constitution guarantees the freedom of conscience.