The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal is D’s refusal to enlist in the military according to one’s conscience formed by the religious doctrine as D, and such reason is difficult to be deemed as a justifiable reason under Article 88(1) of the Military Service Act. Thus, the Defendant is established in violation of the Military Service Act.

2. Determination

A. The relevant legal doctrine on conscientious objection refuses to perform military training and bearing arms on the ground of conscientious decisions based on conscience established in religious, ethical, moral, and philosophical motive or similar motive. If conscientious objection is based on genuine conscience, such refusal constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

Here, conscience as referred to in this article is devout, firm, and true.

The belief deep means that it is a depth of a person's inner sense and it affects all his thoughts and actions.

The whole of life, which is not a part of the life, must be under the influence of its belief.

The belief that it is firm means that it is not flexible or variable.

Although it is not necessarily a fixed change, the belief has a clear substance, and it should not be easily changed as it is.

It means that the belief that it is true is not false, but is neither compromise nor strategic depending on circumstances.

Even if the conscientious objectors have a devout and firm belief, if they act differently according to circumstances in relation to such belief, such belief cannot be deemed to be true.

In a specific case pertaining to the violation of the Military Service Act, in a case where a defendant asserts conscientious objection, such conscientious objection cannot be directly and objectively proven, and thus, it should be determined by means of proving indirect or circumstantial facts relevant to conscience given the nature of things.

Supreme Court Decision 2016Do109 Decided November 1, 2018