The prosecutor's appeal is dismissed.

1. Although the defendant, a believers of D religious organization, refused military service on the grounds of religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act, the judgment of the court below which acquitted the defendant of the facts charged in this case is erroneous in the misapprehension of legal principles.

2. The summary of the facts charged in the instant case is that “The Defendant did not enlist within three days from the date of enlistment without justifiable grounds despite the receipt of a notice of enlistment in the military service under the name of the director of the Seoul Regional Military Manpower Office to enlistment in the Army Training Center on July 20, 2015 at the Defendant’s house located in the branch of the Guro-gu Seoul Metropolitan Office B building C on August 31, 2015.”

No punishment, such as criminal punishment, shall be imposed on a person who fails to perform military duty accompanying military training and military training on the ground of conscience formed at his/her own inside.

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 to be conscientious objection, such objection constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

(See Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018). Examining the following circumstances acknowledged by the record in light of the legal doctrine as seen earlier, inasmuch as conscience that a defendant is unable to perform his duty of military service is devout, firm, and sincere and genuine conscience, it is reasonable to deem that the defendant’s refusal to enlist in active duty service has justifiable grounds under Article 88(1) of the Military Service Act.

Therefore, we affirm the judgment of the court below that found the Defendant not guilty of the facts charged of this case in the same purport, and this is therefore justified.