The judgment of the court below is reversed.

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

1. The gist of the grounds for appeal is G believers who refuses to enlist in the military according to that religious conscience and has a justifiable reason under Article 88(1) of the Military Service Act;

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

2. Determination

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.

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 constitutes the realization of conscience by such passive omission.

conscientious objectors do not deny the duty of national defense under the Constitution itself.

On the other hand, it is accompanied by total military training or military training determined by the law that materializes the duty of national defense by performing the duty of military service.