(영문) 대구지방법원 2019.5.23. 선고 2019노59 판결

Defendant’s refusal to enlist in the military according to one’s religious conscience constitutes a case where there is a justifiable reason as prescribed by Article 88(1) of the Military Service Act. The Defendant intended to engage in private alternative service that is irrelevant to military and is not contrary to one’s conscience, and there is no intention to evade military service.

Nevertheless, the court below erred by misapprehending the legal principles in finding guilty of the facts charged of this case.

2. Determination

A. Summary of the facts charged in this case

The defendant is a person subject to enlistment in active duty service and is a faith of "B".

Around November 10, 2016, the Defendant received a notice of enlistment from the Defendant’s mother D to the Army Training Center located in the Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-do on December 5, 2016, from the Defendant’s house located in the Gyeongdong-gun, the Defendant did not enlist without justifiable grounds until three days pass from that date. Accordingly, the Defendant avoided enlistment.

B. The judgment of the court below

The lower court found that conscientious objection does not constitute justifiable grounds as prescribed by Article 88(1) of the Military Service Act, and found the Defendant guilty of the facts charged in the instant case and sentenced the Defendant to one year and six months.

C. Judgment of the court below

1) Relevant legal principles

Military service objection or so-called conscientious objection refers to an act of refusing to perform the duty of military service accompanied by arms or military training on the grounds of conscientious decisions formed in religious, ethical, moral, philosophical or similar motives.

Article 88(1) of the Military Service Act provides that a person who refuses enlistment in active service shall be punished by imprisonment with prison labor for not more than three years. This is because national security under the Constitution, the duty of defense against land, and the duty of national defense given to citizens is no longer emphasized. This is because there is no existence of the State, the foundation of guaranteeing fundamental rights lies therein. The duty of military service specified in the duty of national defense ought to be faithfully performed and the military administration ought to be fairly and strictly executed. The same value should not be neglected on the ground that the Constitution guarantees the freedom of conscience. Accordingly, the issue of permitting conscientious objection is the conflict and coordination between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the norm 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 the inherent substance of the freedom of conscience. conscientious objectors constitute the realization of conscience by such passive omission. A conscientious objectors are not denied the duty of national defense per se under the Constitution. On the other hand, conscientious objectors are merely refusing to perform the duty of national defense on the grounds that under the law embodying the duty of national defense as well as an act accompanying military training or arms determined by the method of performing that duty of military service cannot be conducted.

In light of the current status of conscientious objection as well as Korea’s economic power and national defense power, as well as the high level of national security awareness, permitting conscientious objection does not seem to significantly impede national security and national defense. Therefore, forcing genuine conscientious objectors to perform military service accompanied by arms and training and bearing arms and punishing such conscientious objectors for nonperformance may excessively restrict the freedom of conscience or threaten essential elements.

In short, sanctions, such as criminal punishment, should not be imposed on a person who fails to perform the duty of military service accompanied by arms and military training on the ground of one’s inner conscience. uniformly compelling conscientious objectors to perform the duty of military service and imposing criminal punishment, etc. against nonperformance is unreasonable in light of the constitutional guarantee system including the freedom of conscience and the overall legal order, as well as contravenes the spirit of free democracy such as tolerance and tolerance for the minority. Therefore, if conscientious objectors are conscientious objectors based on genuine conscience, such refusal constitutes justifiable cause under Article 88(1) of the Military Service Act.

The issue is an important issue to examine and determine conscientious objection that can be recognized as a justifiable reason. Here, conscience refers to a deep, firm, and sincere belief. Being devout means that such belief has a deep depth and has an impact on a person’s thoughts and actions. All other things than a part of life ought to be under the influence of that belief. The establishment of a firm belief refers to that it is neither flexible nor variable. Although it is not necessarily a fixed answer, that belief means that it has an obvious substance and does not change easily. The belief means that there is no falsehood that is true, and that it is neither compromise nor strategic depending on circumstances. Even if a conscientious objector has a devout and firm belief, if he acts differently in accordance with circumstances related to that belief, such belief is difficult to view that it is true.

In a specific case involving the violation of the Military Service Act, inasmuch as a defendant asserts conscientious objection, inasmuch as it cannot directly and objectively prove conscience within human beings, determination ought to be made by means of proving indirect or circumstantial facts relevant to conscience given the nature of things (see Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018).

2) Determination

In light of the above legal principles, considering the following circumstances revealed through the records of this case, the Defendant’s refusal to enlist in active service as “B” is based on devout, firm, and sincere conscience and constitutes justifiable cause as prescribed by Article 88(1) of the Military Service Act. Nevertheless, the lower court determined that the Defendant’s conscientious objection does not constitute justifiable cause. In so doing, it erred by misapprehending the legal doctrine on the interpretation of “justifiable objection” and “justifiable cause as prescribed by Article 88(1) of the Military Service Act, thereby adversely affecting the conclusion of the judgment. Accordingly, the Defendant’s assertion is with merit.

① The Defendant, under the influence of her grandparents, officially recorded “B” sexual intercourse, and began to live on June 4, 201 as “B” sexual intercourse with his religious belief.

② On November 10, 2016, the Defendant received enlistment notice from the Military Manpower Administration, and made efforts to see that he had a sexual intercourse for a long time from the time of birth, believed that he would not be able to lead a life depending on the sexual background. In the gender director 2:4, the Defendant did not remove a war with a thickness, i.e., failed to allow a war to do so and to conduct a war practice. In addition, even if the head of the water is the head of the water in 5:44, the Defendant am dice to a third party, and dice for that purpose. The Defendant submitted to the Military Manpower Administration a letter of notification to the effect that “I cannot perform military service due to a low conscience” is called as a lease, and that it is not possible to perform military service due to a low conscience, and that it belongs to H.

③ Since receiving the first notice of enlistment around November 10, 2016, the Defendant refused to enlist in the military for religious reasons until now, and even if having been sentenced to imprisonment for one year and six months at the lower court, the Defendant had consistently expressed his intent to refuse military service on the grounds of religious belief in the trial before the Supreme Court en banc Decision was rendered by the said Supreme Court en banc Decision.

(4) There is no evidence supporting that there was a circumstance that the defendant showed violent inclinations contrary to his/her religious belief in the course of his/her growth.

⑤ The Defendant introduced a pure private alternative service system that does not go against religious belief, suggesting his will to perform military service through that system.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the following is ruled again.

【Grounds for the Judgment of the Supreme Court】

The summary of the facts charged in this case is the same as that of the above 2-A(A). This constitutes a case where there is no proof of a crime as seen in the above 2-C(c) and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment is announced in accordance with the main sentence of Article 5