Whether conscientious objection based on a genuine conscience constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service Act (affirmative); and in such case, the meaning and method of proving “justifiable conscience” / In cases of refusal to train the reserve forces based on a genuine conscience, whether such refusal constitutes “justifiable cause” as prescribed by Article 15(9)1 of the Reserve Forces Act (affirmative); and the person bearing the burden of proof as to the existence of no justifiable reason (=public prosecutor) and method of proving the existence of

In determining whether there exists “justifiable cause” as prescribed by Article 88(1) of the Military Service Act, the purpose and function of the Military Service Act, the position in which the performance of the duty of military service has been carried out in the overall legal order including the Constitution, social reality and changing the times, etc., as well as the specific and individual circumstances

The so-called conscientious objection and the so-called conscientious objection based on conscience refers to an act of refusing the performance of military service accompanied by gathering arms or military training on the grounds of a conscientious decision based on a religious, ethical, moral, and philosophical motive or similar motive. 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 fundamental rights guarantee system and the overall legal order, including the freedom of conscience, as well as contravenes the spirit of free democracy, i.e., tolerance and tolerance for the minority. Therefore, if conscientious objection is based on genuine conscience, such refusal ought to be deemed as constituting “justifiable cause” as prescribed by Article 88(1)

At this time, a genuine conscience refers to a devout, firm, and sincere belief. A person’s inner conscience cannot directly and objectively prove such conscience. As such, whether a person is conscientious objection according to a genuine conscience can be determined by means of proving indirect facts or circumstantial evidence relevant to conscience in light of the nature of an object.

On the other hand, Article 15(9)1 of the Reserve Forces Act, like Article 88(1) of the Military Service Act, was prepared to specify the duty of national defense, and the reserve forces training also constitutes performance of the duty of military service accompanied by total arms or military training, and it is reasonable to interpret “justifiable cause” as prescribed by Article 15(9)1 of the Reserve Forces Act in accordance with the legal doctrine of Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018, regarding “justifiable cause” as prescribed by Article 88(1) of the Military Service Act, as well as Article 15(9)1 of the Reserve Forces Act. Therefore, even in the case of refusal of the training of the reserve forces based on genuine conscience, it shall be deemed that the refusal of the training of the reserve forces based on genuine conscience constitutes “justifiable cause

The fact that there is no justifiable reason is a constituent element of a crime. However, the proof of the absence of a genuine conscience is similar to the proof of the absence of a fact that has not been embodied in an unspecified period and space. The proof of the absence of such uncertain fact is impossible under social norms, whereas it is more easy to assert and prove the existence thereof. Therefore, such circumstance should be taken into consideration when determining whether a prosecutor fulfilled the burden of proof. Therefore, the defendant who asserts the refusal of a reserve force training for conscientious reasons is infeasible and specific conscience that the refusal of a reserve force training would lose value of existence as a human being if he/she did not act accordingly, and that such conscience would devout, firm, and sincere, and the prosecutor may prove the absence of a genuine conscience by impeachmenting the credibility of the materials presented. In this case, materials presented by the trainee of the reserve force at least to the extent that it is possible for the prosecutor to prove that there is no justifiable reason.

Articles 19, 37(2), and 39 of the Constitution of the Republic of Korea; Article 88(1) of the Military Service Act; Articles 6(1) and 15(9)1 of the Reserve Forces Act; Article 308 of the Criminal Procedure Act

Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018 (Gong2018Ha, 2401)

Defendant

Defendant

Attorney Lee Chang-hwa et al.

Ulsan District Court Decision 2017No1415, 1641 decided February 21, 2018

The judgment below is reversed, and the case is remanded to the Ulsan District Court.

The grounds of appeal are examined.

1. A. Determination as to whether there exists “justifiable cause” as prescribed by Article 88(1) of the Military Service Act ought to take into account not only the purpose and function of the Military Service Act, the location where the performance of the duty of military service has been carried out in the overall legal order including the Constitution, social reality, and changing the times, but also the specific and individual circumstances

The so-called conscientious objection and the so-called conscientious objection according to conscience refers to an act of refusing the performance of military service accompanied by gathering arms or military training on the grounds of a conscientious decision based on a religious, ethical, moral, and philosophical motive or similar motive. uniformly compelling conscientious objectors to perform the military service and imposing sanctions, such as criminal punishment against nonperformance is unreasonable in light of the constitutional fundamental rights guarantee system and overall legal order, including the freedom of conscience, as well as contravenes the spirit of free democracy, i.e., tolerance and tolerance for the minority. Accordingly, if conscientious objection is based on genuine conscience, such refusal ought to be deemed as constituting “justifiable cause” as prescribed by Article 88(1) of the Military Service

At this time, a genuine conscience refers to a devout, firm, and sincere belief. A person’s inner conscience cannot directly and objectively prove such conscience. As such, the determination of whether a person is conscientious objection according to a genuine conscience can be made by proving indirect or circumstantial facts relevant to conscience in light of the nature of an object (see Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018).

B. Meanwhile, Article 15(9)1 of the Reserve Forces Act, like Article 88(1) of the Military Service Act, is prepared to specify the duty of national defense, and the reserve forces training also constitutes performance of the duty of military service accompanied by collective training or military training, and it is reasonable to interpret the “justifiable cause” under Article 15(9)1 of the Reserve Forces Act in accordance with the above en banc Decision as to “justifiable cause” under Article 88(1) of the Military Service Act. Therefore, even in cases of refusal of the reserve forces training based on genuine conscience, it shall be deemed that the refusal of the reserve forces training based on genuine conscience constitutes “justifiable cause” under Article 15(9)1 of the Reserve Forces Act.

C. The fact that there is no justifiable reason is a constituent element of a crime. However, proving the absence of a genuine conscience is similar to proving the absence of a fact that has not been embodied in an unspecified period and space. It is impossible under social norms to prove the absence of such uncertain fact, whereas it is more easy to assert and prove the existence thereof. Therefore, such circumstance should be taken into consideration when determining whether a prosecutor fulfilled the burden of proof. Therefore, a defendant who asserts the refusal of a reserve force training for conscience reasons of conscience presents a prima facie proof that his refusal of a reserve force training would lose the value of existence as a human being if he did not act accordingly, and that his conscience would be devout, firm, and sincere, and that a prosecutor may prove the absence of a genuine conscience by impeachmenting the credibility of the materials presented. At least, the materials to be presented by the trainee of the reserve forces should be sufficient to the extent that it is possible for a prosecutor to prove that there is no justifiable reason based on the materials presented (see the above en banc Decision).

2. The lower court determined that the refusal of the reserve forces training on the grounds of the religious doctrine as a female witness does not constitute “justifiable cause” as prescribed by Article 15(9)1 of the Reserve Forces Act, and upheld the first instance judgment convicting the Defendant of the charges in this case. However, in light of the purport of the above en banc Decision, the lower court erred by misapprehending the legal doctrine on “justifiable cause” as prescribed by the Reserve Forces Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Therefore, without examining the remaining grounds of appeal by the defendant, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Noh Jeong-hee (Presiding Justice)