(영문) 대법원 2021.2.4.선고 2020도3439 판결

1. The key issue of this case is whether the refusal of a reserve force training on grounds of religious belief constitutes “justifiable cause” under Article 15(9)1 of the Reserve Forces Act.

A. The main text of Article 88(1) of the Military Service Act provides, “If a person who received a notice of enlistment in active service or a notice of call-up (including a notice of enlistment through recruitment) fails to enlist or respond to a call-up even after the date of enlistment or call-up without justifiable grounds, he shall be punished by imprisonment with prison labor for not more than three years.” In determining whether there exist justifiable grounds as prescribed by the foregoing provision, “in active service” under subparagraph 1 of the same Article shall take into account not only the purpose and function of the Military Service Act, the location and function of the performance of the duty of military service in the overall legal order including the Constitution, social reality, and change of the times, etc., but also the specific and individual circumstances faced by the defendant. Even if there are circumstances not considered in the process of imposing the duty of military service and taking specific military disposition, if specific and individual circumstances of the person who was not enlisted prevent him from coping with the performance of military service, such circumstance may constitute “justifiable cause” under Article 88(1) of the Military Service Act. The same applies even if such circumstance is not simply temporary or does not occur to other people.

A conscience protected under Article 19 of the Constitution refers to an act of refusing to perform the duty of military service involving arms or military training on the grounds of a conscientious decision made on the grounds of religious, ethical, moral, moral, philosophical, or other conscience formed in the same motive as that of a religious, moral, and philosophical intent that one’s value as a human being would be destroyed if one does not act without doing so when determining right and wrong. Whether to allow such conscientious objection is a matter of conflict and coordination 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.

conscientious objection constitutes a realization of conscience by passive omission. Coercive performance of an obligation by imposing a duty to act contrary to conscience and imposing criminal punishment against nonperformance is ultimately different from forcing conscientious objectors to voluntarily destroy one’s value of existence as a human being by renounceing an inner conscience and performing a duty imposed by the State, or by performing a duty with maintaining inner conscience. A conscientious objectors do not deny the duty of national defense under the Constitution itself. In that conscientious objectors are unable to perform the duty of military service involving arms or military training and performance of the duty of military service involving arms or military training and bearing arms voluntarily destroys one’s value of existence as a human being. Meanwhile, in light of our economic power and national defense power, citizens’ high security awareness, etc., permitting such conscientious objection does not appear to be considerably difficult to achieve national security and national defense. Accordingly, forcing genuine conscientious objectors to perform military service involving arms or bearing arms or bearing arms and punishing such nonperformance would be excessively restrictive to the freedom of conscience or threaten the inherent substance of conscience.

In short, uniformly compelling conscientious objectors to perform the duty of military service and imposing sanctions, such as criminal punishment against nonperformance, are unreasonable in light of the constitutional guarantee system and overall legal order, including the freedom of conscience, and is also contrary to the spirit of free democracy, namely, tolerance and tolerance for the minority. Therefore, if conscientious objectors are conscientious objectors according to genuine conscience, such refusal constitutes “justifiable cause” under Article 88(1) of the Military Service Act (see Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018).

A genuine conscience shall be devout, firm, and sincere. Since a person’s inner conscience cannot directly and objectively prove such conscience, determination ought to be made by way of proving indirect facts or circumstantial facts relevant to conscience in light of the nature of an object (see Supreme Court en banc Decision 2016Do10912, supra).

B. Article 15(9)1 of the Reserve Forces Act, like Article 88(1) of the Military Service Act, is prepared to specify the citizen’s duty of national defense, and the reserve forces training also perform the duty of military service that involves collective training or military training, and therefore, it is reasonable to interpret “justifiable cause” as prescribed by Article 15(9)1 of the Reserve Forces Act in accordance with the aforementioned en banc decision regarding “justifiable cause” as prescribed by Article 88(1) of the Military Service Act. Therefore, even in the case of refusal of the reserve forces training based on genuine conscience, it shall be deemed as constituting “justifiable cause” as prescribed by Article 15(9)1 of the Reserve Forces Act.

2. In light of the following circumstances, the first instance court found the Defendant’s refusal to train the reserve forces based on a devout, firm, and sincere conscience based on religious belief to constitute “justifiable cause” under Article 15(9)1 of the Reserve Forces Act, and found the Defendant not guilty of the facts charged in the instant case. The lower court determined that the first instance judgment was justifiable, and maintained it as it is.

A. The Defendant’s parents are women’s believers and believers, and the Defendant began religious life according to his parents, but around the time of high school, the Defendant suspended religious life by salving the moral standards required as a female witness.

B. On June 7, 2011, the period during which the Defendant suspended religious life, served as a soldier on active duty, and served as a soldier on March 16, 201, and completed the reserve force training normally from the date of expulsion to the date of 2016.

C. Around May 2016, the Defendant began with the Maternal Department and became a new witness of Hohovah on July 29, 2017, who was regularly subject to the Maternal Department. There is no evidence to acknowledge that the Defendant had shown violent inclinations contrary to that religious belief after commencing his/her religious life again.

D. The Defendant stated in an investigative agency that he would refuse training according to the lavedation that he “lopped neighbors, such as the Baner himself.”

E. From around 2017, the Defendant continues to refuse the training of the reserve forces and had it attend a criminal trial after having been investigated by an investigative agency several times for a long time. The disadvantage that the Defendant would be subject to by refusing the training of the reserve forces is significantly greater than that that of the Defendant’s attending the training. Nevertheless, the Defendant is refusing the training of the reserve forces on account of religious belief, taking account of risk of criminal punishment

3. Examining the aforementioned legal principles and records, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on “justifiable cause” under Article 15(9)1 of the Reserve Forces Act, contrary to what is alleged in the grounds of appeal.

4. The prosecutor's appeal is dismissed on the ground that it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.