The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal (the factual errors and the misapprehension of legal principles) did not constitute “justifiable cause” under Article 88(1) of the Military Service Act, but the lower court acquitted the Defendant of the facts charged in this case on the ground that the Defendant’s refusal of military service as the believers of a D religious organization does not constitute “justifiable cause” under Article

2. Determination on the grounds for appeal

A. In determining whether there exists a “justifiable cause” under Article 88(1) of the Military Service Act, the purpose and function of the Military Service Act, the position in which the performance of the duty of military service is held by the overall legal order including the Constitution, social reality, and changing the times, as well as the specific and individual circumstances facing the Defendant should be considered.

Military service objection and so-called conscientious objection mean refusing to perform the duty of military service accompanied by arms or military training on the grounds of conscientious decisions made in religious, ethical, moral, philosophical or similar motives.

It is not reasonable in light of the constitutional system of guaranteeing fundamental rights, including the freedom of conscience, and the overall legal order, and also violates the spirit of free democracy such as tolerance and tolerance of minority objectors.

Therefore, if a genuine conscience is conscientious objection, such objection ought to be deemed as constituting “justifiable cause” under Article 88(1) of the Military Service Act.

At this time, genuine conscience refers to devout, firm, and sincere conscience.

Inasmuch as it is impossible to directly and objectively prove a human inner conscience, whether a conscientious objection is based on a genuine conscience can be determined by means of proving indirect facts or circumstantial facts relevant to conscience given the nature of an object.

(See Supreme Court Decision 2017Do10930 Decided February 14, 2019). B.

Judgment

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