The judgment of the court below is reversed.

The accused shall publicly announce the summary of the judgment of innocence.

1. The gist of the grounds for appeal is that the Defendant, as the believers of a religious organization, refused to enlist in active duty according to religious conscience. As such, the Defendant’s refusal to enlist in active duty is “justifiable cause” under Article 88(1) of the Military Service Act

Nevertheless, the court below found the Defendant guilty of the facts charged of this case, and there is an error of law by misunderstanding legal principles.

2. Determination

A. The Defendant, as a believers of religious organizations B, is a person subject to enlistment in active duty service.

On October 24, 2015, the Defendant received a notice of enlistment in active duty service under the name of the director of the Seoul regional military manpower office in the name of the Defendant’s office located in Seocho-gu Seoul Metropolitan Government, that “to be enlisted in the five group of the five group of the five group of the five group of the five group of the five group of the five group of the army of Gyeonggi-do, Macheon-gun, Macheon-ro, Macheon-ro, Macheon-do on December 8, 2015, but failed to enlist until December 11

B. The lower court found the Defendant guilty of the instant facts charged on the ground that the refusal of enlistment on the grounds of religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.

C. The so-called conscientious objection according to the relevant legal doctrine 1 as to the trial of the political party refers to refusing to perform the duty of military service involving participation in military training or arms on the ground of conscientious decision formed in religious, ethical, philosophical or other similar motives.

It is not reasonable in light of the fundamental rights guarantee system and the overall legal order, including the freedom of conscience, to uniformly compel conscientious objectors to perform the duty of military service and impose sanctions such as criminal punishment against non-performance of the duty of military service, and also violates the spirit of free democracy such as tolerance and tolerance of the minority.

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

Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018