The defendant shall be innocent.

The Defendant is the believers of the religious organization B in the instant indictment.

On December 21, 2017, around 13:52, the Defendant directly received a notice of enlistment in active duty service in the name of the director of the Daejeon Chungcheongnam-gu Military Manpower Office, Daejeon-gu, Daejeon-si, that he will enlist in the office of the Defendant located in Seocheon-gu C apartment D, Seoyang-gu, Seoyang-si, Seoyang-si, and from January 22, 2018, and did not enlist within three days from the date of enlistment without justifiable grounds.

Maz.

1. The fact that there is no “justifiable cause” under Article 88(1) of the Military Service Act is a constituent element of crime, and the prosecutor must prove it.

However, proving the absence of genuine conscience is similar to proving the absence of a fact that is not specified in a period and space.

Inasmuch as proving the absence of such unclear fact is impossible by social norms, but it is more easy to assert and prove the existence thereof, such circumstance should be considered when determining whether the prosecutor fulfilled the burden of proof.

Therefore, the Defendant asserting conscientious objection is able to prove the absence of genuine conscience by presenting prima facie evidence that he is imminent and specific that his value of existence as a human being will be destroyed if he does not act according to his conscience, and that his conscience is devout, firm, and sincere. The prosecutor can prove the absence of genuine conscience by impeachmenting the credibility of the materials presented.

(See Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018). In full view of the following circumstances acknowledged by the record, it is difficult to deem that the evidence submitted by a prosecutor alone was proven without reasonable doubt that the Defendant rejected military service without justifiable grounds.

The ruling of the Supreme Court that conscientious objection constitutes justifiable grounds under Article 88(1) of the Military Service Act is rendered by the believers of religious organizations B.