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인천지방법원 2019.06.20 2018노715

The prosecutor's appeal is dismissed.


1. The gist of the grounds for appeal is that the Defendant, as the believers of a religious organization B, refuses enlistment in active service according to religious conscience. Such grounds cannot be deemed as “justifiable grounds” under Article 88(1) of the Military Service Act.

Nevertheless, the lower court erred by misapprehending the legal doctrine and thereby adversely affecting the conclusion of the judgment, which affected the conclusion of the judgment.

2. Determination on the grounds for appeal

A. Article 88(1) of the Military Service Act provides that “If a person who received a notice of active duty enlistment fails to enlist within three days from the date of enlistment without justifiable grounds, he/she shall be punished by imprisonment for not more than three years.”

See Dod, uniformly forcing conscientious objectors to perform military service and imposing sanctions such as criminal punishment against their nonperformance violates the spirit of free democracy, such as the guarantee of fundamental rights, including the freedom of conscience, and 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.

Fidelity fact that there is no justifiable reason is a constituent element of crime, and the prosecutor must prove it.

However, proving the absence of a genuine conscience is similar to proving the absence of a fact that is not specified in a period and space.

Therefore, the Defendant who asserts conscientious objection presents a prima facie evidence that his conscientious objection would not cause a loss of the value of existence as a human being if he did not act accordingly, and that such conscience would be devout, firm, and sincere, and the prosecutor can prove the absence of genuine conscience by impeachmenting the credibility of the materials presented.