본문 바로가기 주메뉴로 바로가기
All
TITLE Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018【Violation of the Military Service Act】 [full Text]
Summary
[1] Legal nature of “justifiable cause” as defined by Article 88(1) of the Military Service Act (held: grounds for exclusion of constituent elements) and matters for consideration when determining the existence of justifiable grounds
Whether the so-called conscientious objection to military service constitutes “justifiable cause” as defined by Article 88(1) of the Military Service Act (affirmative with restriction)
Whether the matter of acknowledging conscientious objection as justifiable grounds under the foregoing Article is in a logically consequential relationship with the existence or absence of alternative military service for conscientious objectors (negative)
Meaning of “genuine conscience” as referred to in conscientious objection, and method of proof as to whether “genuine conscience” constitutes justifiable grounds
Allocation of the burden of proof as to the nonexistence of justifiable grounds (held: prosecutor)
[2] In a case where the Defendant, a Jehovah’s Witness, was indicted on the charge of violating the Military Service Act when he did not enlist due to a religious reason even after the lapse of three days from the enlistment date upon receiving a notice of enlistment in active service under the name of the head of a regional military manpower office, the case holding that: (a) in light of overall circumstances, the Defendant’s act of refusal to enlist was based on his genuine conscience, thus leaving room to deem as constituting “justifiable cause” under Article 88(1) of the Military Service Act; (b) nevertheless, the lower court, without examining whether such conscientious objection fell under “justifiable cause” of the foregoing Article, convicted the Defendant by reasoning that the same does not constitute justifiable grounds; and (c) in so doing, it erred by misapprehending the legal doctrine
Prev Supreme Court Decision 2015Du59686 Decided November 9, 2018 【Revocation of Corrective Order, etc.】
Next Supreme Court en banc Decision 2018Do7172 Decided October 30, 2018 【Violation of the National Sports Promotion Act (Opening of Gambling Parlors, Etc.); Operation of Gambling Establishment; Violation of the National Sports Promotion Act (Gambling, Etc.); Regular Gambling; Inciting Violation of the Credit Information Use and Protection Act; False Testimony】
219 Seocho-ro,Seocho-gu,Seoul 06590,Republic of Korea 02-3480-1100