The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal (legal scenario) that the Defendant’s refusal to perform his military service on the grounds of religious conscience does not constitute justifiable grounds under Article 88(1) of the Military Service Act.

However, the judgment below which acquitted the charged facts of this case is erroneous in the misapprehension of legal principles.

2. The summary of the facts charged was that the Defendant, around June 24, 2015, received a notice of enlistment in active duty service from the Defendant’s house located in Geumcheon-gu Seoul Metropolitan Government B apartment and C to the Army Training Center located in Seosan-si, Seosan-si on July 6, 2015, but failed to enlist in the army without justifiable grounds until July 9, 2015, after three days from the date of enlistment.

3. Determination

A. The so-called conscientious objection according to the legal doctrine on conscientious objection and the so-called conscientious objection mean refusing to perform the duty of military service accompanied by participation in military training or arms on the grounds of conscientious decision formed in religious, ethical, moral, and philosophical or other similar motives.

Article 88(1) of the Military Service Act provides that a person shall be punished by imprisonment with prison labor for not more than three years for refusal of enlistment in active service.

In the Constitution, there is no emphasis on the national security, the new duty of national defense, and the duty of national defense given to the people.

If there is no existence of the nation, the foundation of guaranteeing fundamental rights will collapse.

The duty of military service specified in the duty of national defense shall be faithfully performed, and the military administration shall also be fairly and strictly executed.

Inasmuch as the Constitution guarantees the freedom of conscience, such value should not be neglected.

Therefore, the issue of whether conscientious objection is permitted is the conflict adjustment between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the duty of national defense under Article 39 of the Constitution.

However, the restriction on the freedom of conscience realization by passive omission is an excessive restriction on the freedom of conscience or essential contents.