2014No1939, 3096 (Consolidation) Violation of the Establishment of Homeland Reserve Forces Act

A person shall be appointed.

Both parties

Kim Jong-chul, Park Jong-chul, Kim Tae-tae (prosecution), Kim Jin-Jak (Acting on behalf of each examiner);

Prosecutions) In the case of a chief public trial (public trial)

1. Daejeon District Court Decision 2014Gohap203, 259, 543 decided June 25, 2014

ix) Judgment

2. Daejeon District Court Decision 2014 High Court Decision 1219, 2014 High Court Decision 2752 Decided October 8, 2014

(Consolidation) Judgment

April 16, 2015

All judgment of the court below are reversed.

Defendant shall be punished by a fine of 500,000 won.

Defendant who has converted 100,000 won into one day when the above fine has not been paid;

shall be confined in a workhouse.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of the grounds for appeal;

A. Defendant

1) Legal principles

The defendant, as a Jehovah's Witness, refused to participate in reserve forces training according to his religious conscience, which is based on the freedom of conscience guaranteed by the Constitution, and thus, the defendant's refusal to receive training constitutes "justifiable cause" as stipulated in Article 15 (9) 1 of the Establishment of Homeland Reserve Forces Act (amended by Act No. 12791, Oct. 15, 2014; hereinafter referred to as "former Non-Military Reserve Forces Establishment Act"), but the court below found the defendant guilty of the facts charged in this case. Since the defendant clearly expresses his intention to refuse to serve in reserve forces, the court below erred in the misapprehension of legal principles, and since the refusal after the first refusal is not different from the existing violation, the judgment of the court below, which was punished as concurrent crimes by applying this principle as a crime, is erroneous in the misapprehension of legal principles as to the determination of the number of crimes.

2) Unreasonable sentencing

The sentence of each judgment of the court below (the first judgment of the court below: the fine of 200,000 won, the second judgment: the fine of 500,000 won) is too unreasonable.

B. Public prosecutor (an unreasonable sentencing on the second judgment of the court below)

The sentence of the court below is unfair because it is too unhued.

2. Determination

A. Ex officio determination

The court of the first instance decided to consolidate each appeal case of the judgment below against the defendant, and each of the offenses in the judgment of the court below are concurrent offenses under the former part of Article 37 of the Criminal Act, and a single sentence shall be sentenced in accordance with Article 38(1) of the Criminal Act. Thus, the judgment of the court below cannot be maintained.

However, the defendant's assertion of misapprehension of the legal principle is still subject to the party's determination, despite the above reasons for reversal of the authority, and this is to be examined.

B. Judgment on the misapprehension of the legal principle of the defendant

1) Determination on justifiable grounds

A) The fundamental rights under the Constitution should be exercised within the extent that they can lead a community with others within a State community and should be achieved within the extent that does not endanger the other constitutional values and the legal order of the State. As such, the freedom of conscience realization is a relative freedom that can be restricted by law pursuant to Article 37(2) of the Constitution in the event there is a constitutional legal interest to justify such restriction. In such a case, Article 15(9)1 of the former Establishment of Military Reserve Forces Act was established to embody the fundamental national defense duty of the Republic of Korea as provided by Article 88(1) of the Military Service Act, and if the State’s security is not fulfilled due to the failure of the soldier’s duty, the dignity and value as human beings cannot be guaranteed. Accordingly, the duty of military service is ultimately to guarantee the dignity and value of all citizens, and the defendant’s freedom of deliberation cannot be deemed as superior to the above constitutional legal interests, and thus, the defendant’s freedom of conscience realization cannot be deemed as a result of restricting the defendant’s freedom of conscience under Article 2010(20 of the Constitution.

In addition, the State has a duty to confirm and guarantee the fundamental human rights of an individual (the latter part of Article 10 of the Constitution). While the freedom of conscience under Article 19 of the Constitution has a duty to alleviate the conflict of conscience by presenting other possibilities or alternatives to the extent that does not undermine the public interest or legal order, a peaceful co-existence relationship between the two Koreas is settled between the two Koreas, and even if alternative military service is permitted by understanding and tolerance for conscientious objectors in our society, even if alternative military service is allowed to those conscientious objectors, it is still not a social community member’s consensus that the equal burden is realized in the performance of military service and does not interfere with social integration, which is difficult to introduce the alternative physical service system, because the legislative decision of the Constitutional Court is remarkably unreasonable or clearly erroneous (see, e.g., Constitutional Court Decision 201Hun-Ba30, Aug. 30, 2011; Constitutional Court Decision 201Hun-Ba30, Feb. 17, 2017).

B) Meanwhile, Article 18 of the International Covenant on Civil and Political Rights has the right to enjoy the freedom of thought, conscience, and religion. This right includes the freedom to express one’s religion or belief, either solely or jointly with another person, either public or private, by worship, ceremony, event, or missionary work. ② No one may be forced to infringe on his freedom to express one’s religion or belief. ③ The freedom to express one’s religion or belief may be limited only to cases where it is prescribed by law and necessary to protect public safety, order, public health, morality, or other fundamental rights and freedom of another. However, the above provision is only binding on the freedom of conscience under Article 19 of the Constitution and the scope of protection of fundamental rights guaranteed by Article 20, and thus, it may not be deemed that the National Assembly has a duty to exempt the Defendant from taking measures necessary for religious objection pursuant to Article 18(1) of the Constitution, including the foregoing provision.

C) Therefore, it cannot be deemed that the Defendant’s refusal to train homeland reserve forces based on a religious conscience constitutes a case where there exists a justifiable reason under Article 15(9)1 of the former Establishment of homeland reserve forces Act. Therefore, the Defendant’s assertion of this part of the misapprehension of the legal doctrine is without merit.

2) Determination of the principle of prohibition of double punishment and the assertion of the number of crimes

A) Article 13(1) of the Constitution provides for "the principle of prohibition of double punishment". This is to ensure fundamental rights and, in particular, freedom of body of the people by preventing the State from repeatedly exercising its penal authority on the same criminal act. This is to ensure that a judgment once becomes final and conclusive, is declared in the Constitution as the binding principle of the right to impose double punishment.

B) However, the crime subject to punishment under the legal provision of this case is not "act of refusing training during the entire period of reserve forces service" but "act of failing to comply with the pertinent preliminary training that received a muster notice without justifiable grounds." Thus, even if the determination of conviction against a person refusing training of the reserve forces becomes final and conclusive, if the person refusing training of the reserve forces was to refuse the training of the reserve forces that received a muster notice and again refuse the training of the reserve forces, it should be deemed that criminal punishment for such refusal would be reasonable (see Constitutional Court Order 2007HunGa12, 2009HunBa103 (C) decided August 30, 201). The crime of violating the law of establishing the reserve forces established due to failure to comply with the muster notice is a substantive competition relation established for each crime (see Supreme Court Decision 2007Do7463, Dec. 14, 2007).

C) Therefore, even if the defendant was found guilty because he failed to comply with the notice of call-up prior to the instant case, so long as he committed the instant crime by failing to comply with the new notice of call-up for training again, punishing him shall not be deemed to violate the principle of prohibition of double punishment or to be erroneous in the determination of the number of crimes. Therefore, this part of the defendant's assertion of misapprehension of the legal principles is

3. Conclusion

Therefore, the defendant's assertion of legal principles is without merit, but since there is a ground for ex officio reversal, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the prosecutor's assertion of unfair sentencing on the defendant and the second judgment, and it is decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this Court is identical to the entries in each column of the judgment below, and thus, all of them are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Articles 15(9)1 and 6(1) of the Establishment of Local Reserve Forces Act, and each fine shall be selected.

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

Although the Defendant had been punished for the same kind of crime, he again committed the instant crime, and in the future, he seems to refuse to comply with the call training of homeland reserve forces for the same reason, and in light of the importance of the duty of military service in consideration of the situation of the Republic of Korea’s security and the equity with the person performing the duty of military service, etc., the nature of the instant crime cannot be deemed to be less severe.

However, the Defendant has no record of criminal punishment except for the crime of non-compliance with the call-up training of homeland reserve forces as in the instant case, and the Defendant’s duty to serve as a defense industry company for three years and ten months, and believed a female and female witness after being discharged from his duty to serve as a defense industry company, resulting in the instant criminal conduct in accordance with a religious belief. As such, there are circumstances to take into account the motive and circumstances, and other factors to be considered in relation to the Defendant’s age, character and conduct, living environment, the means and consequence of each of the instant crimes, and the circumstances after committing the instant crimes, etc., shall be determined as ordered by taking into account all the sentencing conditions specified in the instant records

Judge Lee Young-young

Judges Lee Jon-young

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