The prosecutor's appeal is dismissed.

1. It is not proven that the first instance court failed to faithfully examine whether the Defendant’s refusal of military service, such as the summary of the grounds for appeal, originated from a deep religious belief of the Defendant, and thereby objective facts have not been proven.

Nevertheless, the judgment of the first instance that acquitted the defendant on the ground that the defendant refused military service according to his genuine conscience and that there is a justifiable reason as stipulated in Article 88(1) of the Military Service Act in the refusal of military service.

2. The summary of the facts charged in the instant case is that the Defendant, around October 27, 2016, received a notice of enlistment in the name of the director of the Incheon regional military manpower office from the date of enlistment to the date of enlistment within three days from the date of enlistment without justifiable grounds, even though he/she received a notice of enlistment in the name of the director of the Incheon regional military manpower office around November 29, 2016.

3. On the grounds stated in its reasoning, the court of first instance rendered a not guilty verdict on the instant charges on the ground that the refusal of enlistment by a defendant according to a religious conscience constitutes justifiable grounds under Article 88(1) of the Military Service Act.

4. Judgment of the court below

A. The so-called conscientious objection and so-called conscientious objection according to relevant legal doctrine and conscience refer to refusing to perform the duty of military service accompanied by gathering guns or military training on the grounds of conscientious decision formed in religious, ethical, 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.

The Constitution of the Republic of Korea provides conscience.