The defendant shall be innocent.

1. The Defendant is a person subject to enlistment in active duty service and is a new post of “B religious organization.”

The Defendant, around July 4, 2012, was given a notice of enlistment in active duty service under the name of the head of the Seoul Regional Military Affairs Administration on August 14, 2012, to the purport that “be enlisted in the office of the Defendant of Dobong-gu Seoul Metropolitan Government apartment D,” and “be enlisted in the 306 Supplementary Team of the Army, which is located in the Yongsan-dong of the Government-si, Jungdong on August 14, 2012” but did not enlist in the military even three days from August 14, 2012, which is the date of enlistment

2. Article 88(1) of the Military Service Act provides for punishing a person who fails to comply with enlistment or call without justifiable grounds.

Here, justifiable grounds here constitute justifiable grounds for refusal of military service based on genuine conscience for reasons that constitute constituent elements, and the fact that there is no justifiable reason is a constituent element for crime (see Supreme Court Decision 2016Do10912, Nov. 1, 2018). According to the records, the Defendant lives with that religious belief after he became a Class B religious organization on August 12, 2006, and was given a written notice of enlistment in active duty service on July 4, 2012, and was refusing enlistment on the grounds of a religious belief. The Defendant, instead, knowing that he was sentenced to punishment of one year and six months for refusal of enlistment, can be recognized as having maintained his intent to refuse enlistment on the grounds of a religious belief while taking the risk of criminal punishment, even if he was aware that he was sentenced to punishment for refusal of enlistment.

Examining the above facts in light of the legal principles as seen earlier, it appears that Defendant’s refusal to enlist was based on genuine conscience and constitutes justifiable cause under Article 88(1) of the Military Service Act. The evidence duly adopted and examined in this case is insufficient to deem that Defendant’s refusal to enlist did not have justifiable grounds.

Therefore, the facts charged of this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and pursuant to the proviso of Article 58 (2) of the Criminal Act.