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TITLE Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018¡¼Violation of the Military Service Act¡½ [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
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