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부산지방법원 2020.01.08 2016고단8295
병역법위반
Text

The defendant is innocent. The summary of this judgment shall be notified publicly.

Reasons

1. The summary of the facts charged is that the Defendant, as a person subject to enlistment in active duty service, received a written enlistment notice from the Defendant’s office located in Busan High-gu, Busan High-gu, on September 26, 2016, and “to be enlisted in the Army Training Center located in the Yellow-gu, Busan High-gu, Busan High-si, on November 28, 2016.” On October 5, 2016 and October 12, 2016, he received the written enlistment notice from the director of the Busan District Military Manpower Office, and received the written enlistment notice from the State Love e-mail “C” and the commercial e-mail “D,” and did not, without justifiable grounds, undergo the enlistment within three days from the date of enlistment, on the grounds that it violates his religious

2. Determination

A. The so-called conscientious objection according to the legal doctrine on conscientious objection and the so-called conscientious objection mean refusing to perform the duty of military service accompanied by participation in military training or arms on the ground of conscientious decision formed in religious, ethical, moral, and 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, the issue of whether conscientious objection is permitted is the conflict adjustment between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the duty of national defense under Article 39 of the Constitution.

However, the restriction on the freedom of conscience realization by passive omission may be an excessive restriction on the freedom of conscience or a threat to essential contents.

conscientious objection is an objection to military service.