Defendant

This financial resources (prosecutions) and public trial

Defendant shall be punished by a fine of KRW 500,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

Punishment of the crime

The Defendant, as a member of the reserve forces belonging to the △△ Branch of the Dong-dong Seoul Special Metropolitan City, ○○ Branch, is the Defendant:

1. 2017. 8. 28. 18:10경 양산 (주소 생략)에 있는 자신의 주거지에서, 2017. 9. 14. 양산시 예비군 훈련장에서 ‘17년 이월보충훈련 6시간(15년 전반기작계훈련 7차 보충훈련)’을 받으라는 육군 제□□□□부대 ◇대대장 명의의 예비군 훈련소집 통지서를 직접 전달받았음에도 불구하고 정당한 사유 없이 위 훈련을 받지 아니하였다.

2. 전항의 일시 장소에서, 2017. 9. 15. 양산시 예비군 훈련장에서 ‘17년 이월보충훈련 6시간(16년 전반기작계훈련 5차 보충훈련)’을 받으라는 육군 제□□□□부대 ◇대대장 명의의 예비군 훈련소집 통지서를 직접 전달받았음에도 불구하고 정당한 사유 없이 위 훈련을 받지 아니하였다.

Summary of Evidence

1. Partial statement of the defendant;

1. Each accusation;

Application of Statutes

1. Article applicable to criminal facts;

Articles 15(9)1 and 6(1) of the Reserve Forces Act (the selection of fines, the determination of the Defendant’s assertion, as stated below)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

【Judgment on Defendant’s argument】

1. As to the assertion that “justifiable cause” exists

A. The Defendant asserts to the effect that there exists “justifiable cause” as stipulated under Article 15(9)1 of the Reserve Forces Act, since he/she was “nickness witness” and did not participate in the exercise according to the freedom of conscience.

B. The freedom of conscience, such as “marry objection,” may be restricted for national security, maintenance of order, or public welfare pursuant to Article 37(2) of the Constitution, as well as for other fundamental rights. Thus, the freedom of conscience of conscientious objectors, such as the Defendant, cannot be treated as a superior value to the constitutional value of national security, etc. ultimately protected by Article 15(9)1 of the Reserve Forces Act, which is the applicable law of this case (see Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004, etc.).

C. In light of the aforementioned legal principles, the Defendant’s refusal of training on the basis of his/her religious belief can be understood from the perspective of freedom of conscience, but at the same time, it is sufficient to damage or be likely to damage the constitutional value of national security, etc. as seen earlier, and ultimately, cannot be deemed as constituting “justifiable cause” as stipulated in Article 15(9)1 of the Reserve Forces Act.

2. As to the assertion that double punishment or double punishment constitutes double punishment

A. Furthermore, the Defendant asserts to the effect that the punishment of the Defendant constitutes double punishment or double punishment in the instant case, inasmuch as he/she had already been punished several times due to a refusal to participate in the same kind of reserve forces training.

B. On the other hand, the crime of non-compliance with the training of the reserve forces is established as one crime for each non-compliance with the training of the reserve forces. Even if the defendant has already been finally and conclusively determined by the act of non-compliance with the training of the reserve forces, the evidence reveals that each crime of this case is subject to non-compliance with the training of the reserve forces separate from the act of non-compliance with the training of the reserve forces, so the punishment of each crime of this case does not constitute double punishment or double punishment.

Judges Shin Shin-dae