(영문) 창원지방법원 2021.4.1. 선고 2020노1026 판결

Although the defendant did not refuse military service according to his devout, firm, and sincere conscience, the court below judged that the defendant's refusal of military service constitutes "justifiable cause" under Article 88 (1) of the Military Service Act and judged the defendant not guilty of the facts charged, and there is an error of law by misunderstanding the facts and affecting

2. Determination

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to have such convictions as to the extent that there is no reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent that such convictions may lead to such convictions, the determination ought to be made in the interests of the defendant even if there is doubt of guilts, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal (see, e.g., Supreme Court Decisions 2007Do774, Nov. 29, 2007; 2010Do14487, Apr. 28, 201).

In a case involving the violation of the Military Service Act, the fact that there is no justifiable reason is a constituent element of a crime, and thus, a prosecutor must prove the absence of a true conscience. However, proving the absence of a true conscience is similar to proving the absence of a fact that has not been embodied in an unspecified period and space. The proof of the absence of such ambiguous fact is impossible under social norms, whereas it is more easy to assert and prove the existence. Therefore, such circumstance ought to be considered when determining whether a prosecutor fulfills the burden of proof. Meanwhile, given that a person’s inner conscience cannot be directly and objectively proven, it should be determined by means of proving indirect facts or circumstantial facts relevant to conscience in light of the nature of an object (see Supreme Court en banc Decision 2016Do10912, Nov. 1, 20

The court below acquitted the defendant on the charges on the ground that the defendant's conscience, which was unable to perform military service based on a religious doctrine, is devout, firm, and sincere, and thus, "justifiable cause" as stipulated in Article 88 (1) of the Military Service Act is acknowledged. The court below acquitted the defendant on the charges, on the ground that there is no evidence to acknowledge that the defendant was likely to do harm to the defendant's account in the name of pro-Japanese and volunteer activities, and that the defendant actively participated in school education on school violence prevention. The defendant was accused of violating the Military Service Act in 2011 by the Military Manpower Administration for a long time, and consistently expressed his intention to refuse enlistment for religious belief. The defendant's conscience that the defendant cannot perform military service based on a religious doctrine is devout, firm, and sincere, and that there is no sufficient evidence to acknowledge that there was a high possibility of attack and violence by using his account in the name of pro-Japanese, but the prosecutor's argument that there was no evidence submitted by the prosecutor as a result of a thorough examination of facts in the trial procedure.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.