The judgment of the court below is reversed.

The defendant is not guilty. The summary of the judgment against the defendant shall be published.

1. The gist of the grounds for appeal is that the defendant, as a believers of D religious organizations, refuses to enlist in the army according to his religious conscience, and there is a justifiable reason under Article 88(1) of the Military Service Act.

Nevertheless, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. The summary of the facts charged is that the Defendant, at around 15:50 on September 22, 2016, received a notice of enlistment in active duty service from the Defendant’s house located in Bosung-gun B to the 31st group of company located in Gwangju Northern-gu, Gwangju, on October 18, 2016, and did not enlist until October 21, 2016, for which three days have passed from the date of enlistment without justifiable grounds, while he received a notice of enlistment in active duty service by registered mail.

3. Determination

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

B. 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.

Article 88(1) of the Military Service Act provides that a person shall be punished by imprisonment with prison labor for not more than three years for refusal of enlistment in active service.

In the Constitution, there is no emphasis on the national security, the new duty of national defense, and the duty of national defense given to the people.

If there is no existence of the nation, the foundation of guaranteeing fundamental rights will collapse.

The duty of military service specified in the duty of national defense shall be faithfully performed, and the military administration shall also be fairly and strictly executed.

Inasmuch as the Constitution guarantees the freedom of conscience, such value should not be neglected.

Therefore, whether conscientious objection is permitted is the freedom of conscience under Article 19 of the Constitution.