The prosecutor's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant refuses military service on the grounds of religious conscience, but such refusal does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.

Therefore, the judgment of the court below which acquitted the charged facts of this case is erroneous in misconception of facts or misapprehension of legal principles.

2. Determination

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

conscientious objection is a refusal to perform the duty of military service accompanying military training and arms on the ground of a conscientious decision based on a religious ethical, moral, philosophical, or a similar motive. As such, conscientious objectors should not be subject to sanctions, such as criminal punishment, against those who fail to perform the duty of military service accompanying military training and arms on the ground of conscience formed at their inner

It is not reasonable in light of the constitutional guarantee system and overall legal order, including the freedom of conscience, to uniformly enforce the performance of military service to conscientious objectors and impose sanctions such as criminal punishment against their non-performance. In addition, it also violates the spirit of free democracy, i.e., tolerance and tolerance of the minority.

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

It is an important issue to deliberate and decide on conscientious objection that can be recognized as justifiable grounds.

Here, conscience as referred to in this article is devout, firm, and true.

The belief deep means that it is a depth of a person's inner sense and it affects all his thoughts and actions.

The whole of life, which is not a part of the life, must be under the influence of its belief.

The belief that it is firm means that it is not flexible or variable.

It must be a fixed change.