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

1. The Defendant is the B new charges.

On October 14, 2011, the Defendant received a notice of enlistment in active duty service under the name of the director of the regional military manpower office in Gyeongnam-gun, Hanam-gun to enlistment in the 306 supplementary service located in the Dong-dong of the Government of Gyeonggi-do on November 15, 201, but failed to enlist without justifiable grounds by not later than three days after the date of enlistment.

2. Determination

A. The Defendant and his defense counsel asserted as “B” and the Defendant refused to enlist in active duty service according to religious conscience, and thus, there is “justifiable cause” under the main text of Article 88(1) of the Military Service Act.

B. The uniform enforcement of the performance of the duty of military service to conscientious objectors and sanctions such as criminal punishment against nonperformance are unreasonable in light of the constitutional guarantee system and overall legal order, including the freedom of conscience, and is also contrary to the spirit of free democracy, i.e., tolerance and tolerance of minority objectors.

Therefore, if a genuine conscience is conscientious objection, such objection constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

A defendant who asserts conscientious objection may prove the absence of a genuine conscience by presenting prima facie evidence that he is imminent, specific, that his value of existence as a human being is destroyed if he does not act accordingly, and that his conscience is devout, firm, and sincere. A prosecutor may prove the absence of a genuine conscience by impeachmenting the credibility of materials presented.

At least, it is possible for a prosecutor to prove that there is no justifiable reason to prove that the conscientious objector has no justifiable reason.

(see Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018)

C. Based on the aforementioned legal doctrine, it can be seen from the evidence adopted and examined by this Court.