Defendant

Defendant

Kim Jong-young (prosecutions) and Park Jong-young (Trial)

Suwon District Court Decision 2016Ma296 Decided March 31, 2016

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

The Defendant refused enlistment in the military according to his religious conscience as “myhovah’s Witness.” Since Article 18 of the International Covenant on Civil and Political Rights and Article 19 of the Constitution of the Republic of Korea derived the right to refuse military service according to religious conscience, the Defendant is deemed to have “justifiable cause” and thus, the Defendant’s refusal to enlistment under Article 88(1) of the Military Service Act does not constitute a violation of the Military Service Act even if the Defendant refused enlistment. However, the lower court erred by misapprehending the legal doctrine that found the Defendant guilty of the facts charged in the instant case and thereby adversely affecting the conclusion

2. Determination

In full view of the following circumstances and legal principles acknowledged by the evidence duly adopted and investigated by the court below, the refusal of enlistment by the defendant according to a religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.

① “Justifiable reason” under Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, is, in principle, premised on the existence of an abstract military service and the recognition of its performance. However, it refers to the reason why the nonperformance of the military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, is not attributable to a person who has failed to perform the military service, that is, the duty of military service is ultimately to ensure the dignity and value of all citizens, and thus, the freedom of conscience of a defendant cannot be deemed as superior to the above constitutional legal interests. As a result, even if the defendant’s act is based on a religious conscience, it cannot be deemed as constituting justifiable reason under Article 88(1) of the Military Service Act. Restrictions on the defendant’s freedom of conscience pursuant to Article 37(2) of the Constitution for the above constitutional legal interests are justifiable limits permitted under the Constitution (see, e.g., Supreme Court Decisions 2004Do2965, Oct. 15, 2009>

② Inasmuch as there is a broad legislative discretion on whether to impose punishment on a person refusing enlistment in active service and whether to recognize alternative military service, even if there is only a provision imposing punishment without providing any special exception that can substitute enlistment in active service on a person refusing enlistment in active service on the grounds of conscience and religious freedom, it shall not be deemed that such provision violates the principle of excessive prohibition or proportionality, or violates the principle of prohibition of discrimination by religion (see, e.g., Supreme Court Decisions 2004Do2965, Jul. 15, 2004; 2008HunGa22, Aug. 30, 2011).

③ The issue of whether to introduce the alternative military service system is ultimately the issue of determining whether “it does not interfere with the achievement of the important public interest of national security even if alternative military service is permitted.” As such, the introduction of the alternative military service system is an area to be examined in conjunction with the public interest of national security such as active duty service and reserve. It is difficult to examine the unique security situation of Korea where both Korea and Korea are replaced, the loss of military manpower that may arise in the introduction of the alternative military service system, difficulty in examining whether the refusal of alternative military service is due to genuine conscience, and social public opinion, if alternative military service is introduced under critical criticism, it may hinder social integration, thereby seriously impairing national capacity, and the preceding conditions presented in the decision of the previous Constitutional Court (such as the removal of elements of evasion of military service through the peaceful co-existence relationship between South and North Korea, the improvement of military service conditions, etc., and even if alternative military service is permitted to conscientious objectors and thus, it cannot be easily determined that the introduction of the above alternative military service system does not violate the social welfare principle and equity.

④ Article 18 of the International Covenant on Civil and Political Rights (hereinafter “International Covenant”) to which Korea is a member of the Republic of Korea provides the same contents as the freedom of conscience under Article 19 of the Constitution and the scope of protection of fundamental rights guaranteed in the interpretation of the freedom of religion under Article 20 of the Constitution. In light of Article 6(1) of the Constitution, it is difficult to deem that the right to be exempt from the application of Article 88(1) of the Military Service Act exceptionally from the said provision is derived, and it is difficult to interpret that conscientious objectors are punished as a violation of Article 88(1) of the Military Service Act without exemption from military service or an opportunity for alternative military service and thus contravenes international

Therefore, the decision of the court below that found the defendant guilty of the facts charged in this case in accordance with the purport of the Constitutional Court decision and the Supreme Court decision is just, and there is no error of law by misunderstanding legal principles as alleged by the defendant. Thus, the defendant'

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition (However, in light of the process of the lawsuit in this case and the defendant's legal attitude, etc., it is judged that there is no possibility that the defendant might flee, and it will be subject to execution of punishment after the final judgment becomes final and conclusive, and therefore it is not separately detained.

Judges Lee Sung-dae (Presiding Judge)