Open Decision Ledger · Military criminal & justice law
Genuine conscience and individualised proof in refusal of military service
Supreme Court, July 23, 2020, 2018Do14415 (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
In a prosecution for refusing active-duty enlistment under Article 88(1) of the Military Service Act, is a refusal founded on religious belief a justifiable reason, how is it decided whether the refusal rests on the accused's genuine conscience, and who must prove that no justifiable reason existed?
Holding
A refusal of military service founded on genuine conscience must be treated as a justifiable reason within Article 88(1) of the Military Service Act. Whether the conscience behind a particular refusal is deep, firm and sincere, however, must be examined and decided on the facts of each case, through the indirect and circumstantial facts that bear on it, and not by accepting the accused's statement that he belongs to a particular religion. The absence of a justifiable reason is an element of the offence and the prosecution must prove it, and the accused must submit supporting material concrete enough for the prosecution to be able to do so.
Points at issue, verbatim
진정한 양심에 따른 병역거부가 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극)
Unofficial English translation
Whether conscientious objection to military service based on a genuine conscience falls under 'justifiable grounds' in Article 88(1) of the Military Service Act (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 창원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Changwon District Court.
Form of the test
Elements stated Read from the decision
예컨대 종교적 신념에 따른 양심적 병역거부 주장에 대해서는 종교의 구체적 교리가 어떠한지, 그 교리가 양심적 병역거부를 명하고 있는지, 실제로 신도들이 양심을 이유로 병역을 거부하고 있는지, 그 종교가 피고인을 정식 신도로 인정하고 있는지, 피고인이 교리 일반을 숙지하고 철저히 따르고 있는지, 피고인이 주장하는 양심적 병역거부가 오로지 또는 주로 그 교리에 따른 것인지,
Unofficial English translation
For example, as to an assertion of conscientious objection to military service based on religious belief, what the specific doctrines of the religion are, whether those doctrines command conscientious objection to military service, whether believers in fact refuse military service on grounds of conscience, whether the religion recognizes the defendant as an official believer, whether the defendant has familiarized himself with and strictly follows the doctrines in general, whether the conscientious objection to military service asserted by the defendant arises solely or mainly from those doctrines,
Factors
- 피고인으로부터 병역거부에 이르게 된 그의 양심이 깊고 확고하며 진실한 것이라는 사실의 존재를 수긍할 만한 구체적인 소명자료를 제출받아 이를 자세히 심리할 필요가 있다는 이유로
- 구체적으로 피고인의 병역거부가 그의 진정한 양심에 의한 것인지 등에 대해서는 객관적 자료를 토대로 한 충분한 심리 없이
- 피고인이 특정 종교를 신봉하고 있다는 취지의 주장을 그대로 받아들여
- 정당한 사유가 없다는 사실에 대한 증명책임 소재(=검사) 및 증명 방법
- 심리미진 등의 잘못이 있다고 한 사례
Unofficial English translation
• on the ground that it was necessary to receive from the defendant concrete evidentiary materials sufficient to convince one of the existence of the fact that the conscience leading him to refuse military service was deep, firm, and sincere and to examine them in detail
• without sufficient deliberations based on objective materials as to whether the defendant's refusal of military service was due to his genuine conscience, etc.
• by accepting as it stood the assertion to the effect that the defendant adhered to a particular religion
• The party bearing the burden of proof (= the prosecutor) as to the fact that there are no justifiable grounds and the method of proof
• a case in which the judgment of the court below is erroneous for failure to exhaust deliberations, etc.
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
[1] 대법원 2018. 11. 1. 선고 2016도10912 전원합의체 판결(공2018하, 2401), 대법원 2020. 7. 9. 선고 2019도17322 판결(공2020하, 1622)
Burden of proof
The prosecution Stated in the decision
정당한 사유가 없다는 사실은 범죄구성요건이므로 검사가 증명하여야 한다.
Unofficial English translation
The absence of justifiable grounds is a constituent element of the crime, and the prosecutor must prove it.
Open question and revisit condition
What must an accused person whose refusal does not rest on religious belief submit, in the absence of a religion's doctrine and community, before the court must examine whether his conscience was deep, firm and sincere?
A later Supreme Court decision that revises how the credibility of supporting material may be attacked, or that reviews the treatment of non-religious conscientious objection, would require this entry to be read again. The same is true if an amendment to the Military Service Act alters the alternative service system or the scope of Article 88(1).
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 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Circumstances weighed”
The primary states the specific requirements for examining conscience and the burden structure, while the independent reading describes the approach as an overall consideration of circumstances. The holding combines both, so each reading stresses a different aspect.
피고인으로부터 병역거부에 이르게 된 그의 양심이 깊고 확고하며 진실한 것이라는 사실의 존재를 수긍할 만한 구체적인 소명자료를 제출받아 이를 자세히 심리할 필요가 있다는 이유로Axis 8 (Open question and revisit condition): Primary “What must an accused person whose refusal does not rest on religious belief submit, in the absence of a religion's doctrine and community, before the court must examine whether his conscience was deep, firm and sincere?” vs Independent “Will the evidence examined on remand establish that this defendant's refusal arose from a deep, firm, and sincere conscience?”
The primary asks what a non-religious objector must submit before the court must examine the sincerity of conscience, which is a general standard. The independent reading asks whether the evidence on remand will establish this defendant's conscience, which concerns the outcome in this case.
진정한 양심에 따른 병역거부가 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 Changwon District Court, sitting on appeal, in its judgment of 23 August 2018 (2018No1475), reversed the first-instance guilty verdict and acquitted the defendant. It reasoned that compelling military service only through conduct involving the bearing of arms, without a non-military alternative service system, breached the prohibition of excessive restraint and burdened the freedom of conscience, that introducing alternative service would not meaningfully weaken national defence, and that the defendant's refusal of active-duty enlistment therefore had a justifiable reason.
Supreme Court standard: The Supreme Court held that the general proposition, settled by Supreme Court Decision 2016Do10912 (En banc), had to be applied to the facts of the case individually. It faulted the court below for stopping at that general proposition and, without sufficient examination on objective material, simply accepting the defendant's statement that he adhered to a particular religion. That left the necessary hearing incomplete and misstated the law on justifiable reason, and the judgment was reversed and remanded to the Changwon District Court on the unanimous opinion of the participating Justices.
Distinguishing conditions
- A defendant who does not assert conscientious objection at all, so that there is no conscience to test and no supporting material to call for.
- A refusal of military service resting on grounds other than a religious, ethical, moral, philosophical or similar conviction, which the decision's definition of conscientious objection does not cover.
- A refusal of a military obligation that does not involve bearing arms or military training, since the definition of conscientious objection is framed around those acts.
Record verification notes
Set the file against the main judgment factors the Court exemplified before relying on this decision. Look for the concrete supporting material the defendant submitted, and for what the trial court examined on the doctrine of the religion, the defendant's standing as a member, his period of faith and religious activity, his motives and any conversion, and his life as a whole. Then see whether the prosecution attacked the credibility of that material, since the Court framed the prosecution's proof as a rebuttal of it.
From the official text
Points at issue
[1] 이른바 양심적 병역거부의 의미 / 진정한 양심에 따른 병역거부가 병역법 제88조 제1항의 ‘정당한 사유’에 해당하는지 여부(적극) / 구체적인 병역법 위반 사건에서 피고인이 주장하는 양심적 병역거부가 ‘진정한 양심’에 따른 것인지 판단하는 방법 / 정당한 사유가 없다는 사실에 대한 증명책임 소재(=검사) 및 증명 방법 [2] 현역입영 대상자인 피고인이 지방병무청장 명의의 현역입영통지서를 전달받고도 종교적 신념을 이유로 입영일부터 3일이 경과한 날까지 입영을 거부하여 병역법 위반으로 기소된 사안에서, 피고인으로부터 병역거부에 이르게 된 그의 양심이 깊고 확고하며 진실한 것이라는 사실의 존재를 수긍할 만한 구체적인 소명자료를 제출받아 이를 자세히 심리할 필요가 있다는 이유로, 이와 달리 종교적 신념에 따른 양심적 병역거부가 병역법 제88조 제1항의 정당한 사유에 속한다는 점을 일반론으로서 밝히는 정도에 그쳤을 뿐, 구체적으로 피고인의 병역거부가 그의 진정한 양심에 의한 것인지 등에 대해서는 객관적 자료를 토대로 한 충분한 심리 없이 피고인이 특정 종교를 신봉하고 있다는 취지의 주장을 그대로 받아들여 무죄를 선고한 원심판결에 심리미진 등의 잘못이 있다고 한 사례
Unofficial English translation
[1] The meaning of so-called conscientious objection to military service / Whether conscientious objection to military service based on a genuine conscience falls under 'justifiable grounds' in Article 88(1) of the Military Service Act (affirmative) / How to determine whether the conscientious objection to military service asserted by the defendant in a specific case of violation of the Military Service Act is based on a 'genuine conscience' / The party bearing the burden of proof (= the prosecutor) as to the fact that there are no justifiable grounds and the method of proof [2] A case in which, where the defendant, a person subject to active-duty enlistment, received a notice of active-duty enlistment in the name of the Commissioner of the Regional Military Manpower Administration and yet refused to enlist on grounds of religious belief from the enlistment date until three days had elapsed and was prosecuted for violating the Military Service Act, the judgment of the court below, on the ground that it was necessary to receive from the defendant concrete evidentiary materials sufficient to convince one of the existence of the fact that the conscience leading him to refuse military service was deep, firm, and sincere and to examine them in detail, went no further than stating as a general proposition that conscientious objection to military service based on religious belief falls within the justifiable grounds in Article 88(1) of the Military Service Act, and declared the defendant not guilty by accepting as it stood the assertion to the effect that the defendant adhered to a particular religion, without sufficient deliberations based on objective materials as to whether the defendant's refusal of military service was due to his genuine conscience, etc., and thus the judgment of the court below is erroneous for failure to exhaust deliberations, etc.
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 창원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Changwon District Court.
Provisions referred to
[1] 헌법 제19조, 제39조, 병역법 제88조 제1항, 형사소송법 제308조 [2] 병역법 제88조 제1항 제1호
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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