The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is “B” and the Defendant refused to enlist in active duty service according to conscience formed based on religious belief.

Since such conscientious objection is a right guaranteed by Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights, it constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

In addition, the defendant had no intention to evade military service because he had an intention to perform alternative service that is not against one's conscience.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in the misapprehension of facts and legal principles.

2. Determination

A. As to the assertion of mistake of facts, Article 88(1) of the Military Service Act provides that a crime of military service under Article 88(1) of the same Act, which is abstractly established, shall punish a person without military service, who fails to enlist within a given period after receiving a written notice of enlistment in active duty or a written notice of call to the head of the Military Manpower Administration or the Chief of Staff of each service branch. In this case, the intention of the case is determined specifically and specifically, and the intention of not performing the duty of military service, which is contained in the written notice of enlistment in active duty or call-up, is not required to refuse the duty of military service, and thus, it is not necessary to refuse the abstract duty of military

On the other hand, no intentional act may be deemed to exist (see Supreme Court Decision 98Do3138, Jun. 25, 199). According to evidence, such as the Defendant’s oral statement at the trial court, there is an intention to refuse to comply with the Defendant’s notice of enlistment in the active duty service.

In light of the above legal principles, the defendant was willing to perform alternative service that is not contrary to conscience.

Even if the defendant had the intent to commit a violation of the Military Service Act

It is reasonable to view it.

In the same purport, the charges of this case are convicted.