The defendant shall be innocent.

1. The Defendant is a person subject to enlistment in active service.

A person subject to enlistment in active duty service shall be enlisted within three days from the date of enlistment, except in extenuating circumstances.

Nevertheless, the Defendant, on September 22, 2017, received the enlistment notice directly from the Defendant’s dwelling in the Daegu Suwon-gu B apartment C to the Army Training Center on October 23, 2017, stating that “I will enlist in the Army Training Center on October 23, 2017,” but did not enter the military even three days after the date of enlistment without justifiable grounds.

2. As the Defendant alleged as the believers of D religious organizations refused to enlist in active service according to religious conscience, there is a "justifiable reason" under the main sentence of Article 88(1) of the Military Service Act.

3. Determination

A. uniformly compelling conscientious objectors to perform the duty of military service and imposing sanctions, such as criminal punishment against nonperformance, is 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, i.e., tolerance and tolerance of the minority.

Therefore, if a genuine conscience is conscientious objection, such objection constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

A defendant who asserts conscientious objection can prove the absence of a genuine conscience by presenting prima facie evidence that he is imminent, specific, that his value of existence as a human being is destroyed if he does not act accordingly, and that his conscience is devout, firm, and sincere. A prosecutor can prove the absence of a genuine conscience by impeachmenting the credibility of materials presented.

At least, it is possible for a prosecutor to prove that there is no justifiable reason to prove that the conscientious objector has no justifiable reason.

(See Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018). B.