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TITLE 【Syllabus of Latest Opinion】Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018【Violation of the Military Service Act】* First draft [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 and method of proof of “genuine conscience” as referred in conscientious objection constituting justifiable grounds, and allocation of burden of proof as to the non-existence 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 himself in military service due to a religious reason even after the lapse of three days from the enlistment date upon receiving notice of enlistment in active service under the name of the head of the regional office of the Military Manpower Administration, the case holding that: (a) in light of the 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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Next 【Syllabus of Latest Opinion】Supreme Court en banc Decision 2018Do7172 Decided October 30, 2018 【Violation of the National Sports Promotion Act (Opening of a Gambling Place, Etc.); Operation of a 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】
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