(영문) 대법원 2019.1.31. 선고 2017도18610 판결

1. A. Article 88(1) of the Military Service Act provides, “If a person who has received a notice of enlistment in active service or a notice of call-up (including a notice of enlistment through recruitment) fails to enlist in the army or fails to comply with a call-up without justifiable grounds after the date of enlistment or call-up, he shall be punished by imprisonment with prison labor for not more than three years.” Article 88(1) of the same Act provides, “three days for active service enlistment.” In determining whether justifiable grounds prescribed by the foregoing provision exist, the purpose and function of the Military Service Act, the location of the performance of the military duty in the overall legal order

Not only changes, but also the specific and individual circumstances of the Defendant’s military service should be considered. Even in cases where circumstances are not considered in the course of imposing the duty of military service and rendering specific military service disposition, if the specific and individual circumstances of the person liable for military service, who did not enlist, prevent such person from coping with the performance of the duty of military service, it should be deemed that such specific and individual circumstances constitute “justifiable cause” under Article 88(1) of the Military Service Act. The same applies even if such circumstances are not simply temporary

A conscience protected under Article 19 of the Constitution refers to the act of refusing to perform the duty of military service involving arms or military training on the grounds of a conscientious decision made on the grounds of the dynamic, ethical, moral, philosophical, or other similar motives that the value of existence as a human being would be destroyed if one does not act without doing so in determining right and wrong. The so-called conscientious objection refers to the act of refusing to perform the duty of military service involving arms or military training on the grounds of conscientious decision made in the pedagogical, ethical, moral, philosophical, or similar motives. Whether to allow such conscientious objection is problematic between fundamental rights, such as the freedom of conscience under Article 19 of the Constitution

conscientious objection constitutes a realization of conscience by passive omission. Coercive performance of an obligation by imposing a duty to act contrary to conscience and imposing criminal punishment against nonperformance is ultimately different from forcing conscientious objectors to voluntarily destroy one’s value of existence as a human being by renounceing an inner conscience and performing a duty imposed by the State, or by performing a duty with maintaining inner conscience. A conscientious objectors do not deny the duty of national defense under the Constitution itself. In that conscientious objectors are unable to perform the duty of military service accompanied by arms or military training and performing the duty of military service accompanied by arms or military training on their own, which voluntarily destroys the value of existence as a human being. Meanwhile, in light of our economic power, national defense power, citizens’ high security awareness, etc., permitting such conscientious objection does not appear to be considerably difficult to achieve national security and national defense. Accordingly, forcing genuine conscientious objectors to perform military service accompanied by arms or military training and punishing such nonperformance constitutes excessive restriction on the freedom of conscience or to punish such nonperformance.

In short, uniformly compelling conscientious objectors to perform the duty of military service and imposing 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, namely, tolerance and tolerance for the minority. Therefore, if conscientious objectors are conscientious objectors according to genuine conscience, such refusal constitutes “justifiable cause” under Article 88(1) of the Military Service Act (see Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018).

B. A genuine conscience ought to be devout, firm, and sincere. Since a person’s inner conscience cannot directly and objectively prove it, it should be determined by means of proving indirect or circumstantial facts relevant to conscience in light of the nature of an object (see the foregoing en banc Decision).

2. The lower court determined that the Defendant’s refusal to enlist in active service on the grounds of the religious doctrine as B does not constitute “justifiable cause” under Article 88(1) of the Military Service Act, and maintained the judgment of the first instance court which found the Defendant guilty of the instant facts charged. However, in light of the foregoing legal doctrine, the lower court erred by misapprehending the legal doctrine on “justifiable cause” under Article 88(1) of the Military Service Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.