Open Decision Ledger · Military criminal & justice law
Conscientious refusal of military service as a just cause
Supreme Court, Nov. 29, 2018, 2014Do9867 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 병역법위반
Official text on the National Law Information Center
Question
Does a refusal to perform the military duty on the ground of a true conscience constitute a ‘just cause’ under Article 88(1) of the former Military Service Act, and how must the conscience be proved in a specific case?
Holding
It does. A person who does not perform the military duty entailing the carrying of arms or military training because of a conscience formed within shall not be subjected to criminal punishment or other sanctions, and a refusal resting on a true conscience falls within the ‘just cause’ of Article 88(1) of the former Military Service Act as a ground excluding the applicability of the elements of the offence. Because conscience within a person cannot be proved directly and objectively, it must be judged by proving indirect or circumstantial facts connected with the conscience by their nature.
Points at issue, verbatim
진정한 양심에 따른 병역거부가 구 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극)
Unofficial English translation
Whether refusal of military service on grounds of a genuine conscience falls under a 'justifiable ground' in Article 88, paragraph (1) of the former Military Service Act (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대구지방법원 본원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the main courthouse of Daegu District Court.
Form of the test
Elements stated Stated in the decision
진정한 양심에 따른 병역거부라면, 이는 구 병역법 제88조 제1항의 ‘정당한 사유’에 해당한다.
Unofficial English translation
If refusal of military service is based on a genuine conscience, it falls under a 'justifiable ground' in Article 88, paragraph (1) of the former Military Service Act.
Factors
- 이른바 양심적 병역거부의 의미
- 진정한 양심에 따른 병역거부가 구 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극)
- 구체적인 병역법 위반 사건에서 피고인이 양심적 병역거부를 주장하는 경우, 양심의 증명 방법
Unofficial English translation
• The meaning of so-called conscientious objection to military service
• Whether refusal of military service on grounds of a genuine conscience falls under a 'justifiable ground' in Article 88, paragraph (1) of the former Military Service Act (affirmative)
• The method of proving conscience where, in a concrete case of violation of the Military Service Act, the defendant asserts conscientious objection to military service
Relation to precedent
Changes earlier decisions Stated in the decision
대법원이 위 전원합의체 판결로 진정한 양심에 따른 병역거부가 구 병역법 제88조 제1항의 ‘정당한 사유’라는 구성요건해당성 조각사유에 해당한다고 견해를 변경한 이상
Unofficial English translation
inasmuch as the Supreme Court, by the en banc judgment above, changed its view to the effect that refusal of military service on grounds of a genuine conscience falls under a ground that precludes satisfaction of the constituent elements, namely a 'justifiable ground' in Article 88, paragraph (1) of the former Military Service Act
Decisions referred to
대법원 2004. 7. 15. 선고 2004도2965 전원합의체 판결(공2004하, 1396), 대법원 2018. 11. 1. 선고 2016도10912 전원합의체 판결(공2018하, 2401)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How much indirect or circumstantial proof is enough to establish that a refusal of military duty rested on a true conscience?
A later Supreme Court decision setting out which circumstances show a true conscience would require this entry to be read again, as would an amendment to Article 88(1) of the Military Service Act or to the penalty it provides.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 6 (relation to precedent), axis 8 (open question and revisit condition).
Axis 6 (Relation to precedent): Primary “Changes earlier decisions” vs Independent “Follows earlier decisions”
Primary marks the decision as a change of precedent, while independent treats it as following 2016Do10912. The two readings differ on whether the rule departs from or restates the existing precedent line.
대법원 2018. 11. 1. 선고 2016도10912 전원합의체 판결 참조Axis 8 (Open question and revisit condition): Primary “How much indirect or circumstantial proof is enough to establish that a refusal of military duty rested on a true conscience?” vs Independent “Do the indirect and circumstantial facts concerning this defendant establish that his refusal to enlist arose from genuine conscience?”
Primary asks in general how much indirect or circumstantial proof is enough. Independent asks whether the indirect facts about this defendant establish genuine conscience.
진정한 양심에 따른 병역거부가 구 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu District Court, in its judgment of 10 July 2014 (2013No3955), kept the first-instance judgment convicting the defendant. It held that the defendant, a Jehovah's Witness, refused active duty on the ground of that religion's doctrine, and that this was not a ‘just cause’ within Article 88(1) of the former Military Service Act.
Supreme Court standard: The Supreme Court noted that the judgment below had followed the earlier view of the Supreme Court, but since that view had been changed by the en banc decision, the judgment below misapprehended the law on the ‘just cause’ of Article 88(1) and failed to hold the hearing required, which affected the judgment. It reversed the judgment and remanded the case to the joint division of the Daegu District Court, Principal Court, on the unanimous opinion of the participating Justices.
Distinguishing conditions
- A refusal of military duty that does not rest on a true conscience formed within the person, since the rule covers only such a refusal.
- A case in which no indirect or circumstantial fact connected by its nature with the conscience has been proved.
- A case governed by the Military Service Act as amended by Act No. 12560 of 9 May 2014, since the decision applied the former Act.
Record verification notes
Set against the file the date of the conduct charged and the version of the Military Service Act then in force, because the Court applied Article 88(1) of the former Act. Then gather what shows the defendant's belief and the consistency of the conduct with it, since the conscience must be judged through indirect or circumstantial facts. As to Article 308 of the Criminal Procedure Act, this decision makes no finding on a prosecution re-appeal or on increasing a sentence.
From the official text
Points at issue
이른바 양심적 병역거부의 의미 / 진정한 양심에 따른 병역거부가 구 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극) / 구체적인 병역법 위반 사건에서 피고인이 양심적 병역거부를 주장하는 경우, 양심의 증명 방법
Unofficial English translation
The meaning of so-called conscientious objection to military service / Whether refusal of military service on grounds of a genuine conscience falls under a 'justifiable ground' in Article 88, paragraph (1) of the former Military Service Act (affirmative) / The method of proving conscience where, in a concrete case of violation of the Military Service Act, the defendant asserts conscientious objection to military service
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 대구지방법원 본원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the main courthouse of Daegu District Court.
Provisions referred to
헌법 제19조, 제37조 제2항, 제39조, 구 병역법(2014. 5. 9. 법률 제12560호로 개정되기 전의 것) 제88조 제1항, 형사소송법 제308조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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