Open Decision Ledger · Military criminal & justice law
Conscientious refusal of military service as just cause
Supreme Court, Jan. 31, 2019, 2017Do20851 (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
Is a refusal of military service formed on a genuine conscience a 'just cause' within Article 88(1) of the Military Service Act, and what does genuine conscience mean and how is it proved?
Holding
It does. Conscientious refusal means refusing to perform a military obligation involving the bearing of arms or military training, on the strength of a decision of conscience formed from religious, ethical, moral, philosophical or similar motives, and such a refusal, where it rests on a genuine conscience, is a 'just cause' under Article 88(1) of the Military Service Act. Genuine conscience must be deep, firm and sincere; because the inner conscience cannot be proved directly and objectively, it is judged by proving indirect or circumstantial facts connected with it.
Points at issue, verbatim
진정한 양심에 따른 병역거부가 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극) 및 이때 ‘진정한 양심’의 의미와 증명 방법
Unofficial English translation
Whether conscientious objection to military service based on a genuine conscience falls under the 'justifiable ground' in Article 88 (1) of the Military Service Act (affirmative), and the meaning and method of proof of such 'genuine conscience' at that time
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 부산지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Busan District Court.
Form of the test
Elements stated Stated in the decision
진정한 양심은 그 신념이 깊고, 확고하며, 진실하여야 한다.
Unofficial English translation
A genuine conscience must have a belief that is deep, firm, and true.
Factors
- 병역법 제88조 제1항 본문에서 정한 ‘정당한 사유’가 있는지 판단할 때 고려하여야 할 사항
- 이른바 양심적 병역거부의 의미
- 진정한 양심에 따른 병역거부가 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극) 및 이때 ‘진정한 양심’의 의미와 증명 방법
Unofficial English translation
• Matters to be considered when determining whether there is a 'justifiable ground' prescribed in the main text of Article 88 (1) of the Military Service Act
• The meaning of so-called conscientious objection to military service
• Whether conscientious objection to military service based on a genuine conscience falls under the 'justifiable ground' in Article 88 (1) of the Military Service Act (affirmative), and the meaning and method of proof of such 'genuine conscience' at that time
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2018. 11. 1. 선고 2016도10912 전원합의체 판결(공2018하, 2401)
Unofficial English translation
Supreme Court en banc judgment 2016Do10912 decided November 1, 2018 (Gong 2018 Ha, 2401)
Decisions referred to
대법원 2018. 11. 1. 선고 2016도10912 전원합의체 판결(공2018하, 2401), 대법원 2018. 11. 29. 선고 2016도11841 판결(공2019상, 229)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Which indirect or circumstantial facts are enough to show that a belief is deep, firm and sincere, and how are they weighed against the concrete and individual circumstances of the defendant?
A retrand judgment of the Busan District Court that shows which facts it accepted as proof of genuine conscience would require this entry to be read again. So would a decision of the Supreme Court on conscientious refusal that postdates 31 January 2019, or an amendment to Article 88(1) of the Military Service Act.
Cross-family AI independent reading & axis check
7 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 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Which indirect or circumstantial facts are enough to show that a belief is deep, firm and sincere, and how are they weighed against the concrete and individual circumstances of the defendant?” vs Independent “Do the indirect and circumstantial facts establish that this defendant's refusal rested on a deep, firm, and sincere conviction?”
The primary asks which indirect facts are generally sufficient and how they are weighed, while the independent asks whether those facts establish this particular defendant's sincerity.
진정한 양심에 따른 병역거부가 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극) 및 이때 ‘진정한 양심’의 의미와 증명 방법Raw 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 Busan District Court, in its judgment of 24 November 2017 (2017No3007), held that refusing active duty because of the doctrine of Jehovah's Witnesses was not a 'just cause' under Article 88(1) of the Military Service Act. It therefore reversed the first-instance judgment, which had found the charge proved not guilty, and entered a conviction.
Supreme Court standard: Measured against the reasoning of the en banc decision, the judgment below misapprehended the law on 'just cause' under Article 88(1) of the Military Service Act and failed to conduct the necessary examination, an error affecting the judgment. The Supreme Court accepted the ground of appeal on that point, reversed the judgment and remanded the case to the Busan District Court for retrial, by the unanimous opinion of the Justices.
Distinguishing conditions
- A refusal not resting on a conscience that is deep, firm and sincere, since the Court required all three qualities of genuine conscience.
- A case in which no indirect or circumstantial fact connected with the conscience has been proved, since inner conscience cannot be proved directly and objectively.
- A refusal of a military obligation that does not involve the bearing of arms or military training, since the rule addresses exactly that refusal.
Record verification notes
Set the defendant's own circumstances against the list the Court named: the purpose and function of the Military Service Act, the place of the military obligation in the whole legal order under the Constitution, changes in social reality and the times, and the concrete and individual circumstances of that defendant. Then collect the indirect and circumstantial facts that bear on whether the belief is deep, firm and sincere, and check which version of the Military Service Act was in force on the date of refusal.
From the official text
Points at issue
병역법 제88조 제1항 본문에서 정한 ‘정당한 사유’가 있는지 판단할 때 고려하여야 할 사항 / 이른바 양심적 병역거부의 의미 / 진정한 양심에 따른 병역거부가 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극) 및 이때 ‘진정한 양심’의 의미와 증명 방법
Unofficial English translation
Matters to be considered when determining whether there is a 'justifiable ground' prescribed in the main text of Article 88 (1) of the Military Service Act / The meaning of so-called conscientious objection to military service / Whether conscientious objection to military service based on a genuine conscience falls under the 'justifiable ground' in Article 88 (1) of the Military Service Act (affirmative), and the meaning and method of proof of such 'genuine conscience' at that time
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 부산지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Busan District Court.
Provisions referred to
헌법 제19조, 제37조 제2항, 제39조, 병역법 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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