양심적 병역거부에 대한 형사처벌의 문제 검토 대상판결: 2018. 11. 1. 선고 2016도10912 전원합의체 판결〔병역법위반〕

Abstract

The Supreme Court en banc Decision 2016Do10912 changing the previous case and acquitted him of the charges, considering that conscientious objection constitutes a legitimate reason for his crimes, including draft dodging under the Military Service Act. However, the logic and conclusion of the majority opinion of the decision seems to have been put together to make a proactive decision based on the changing times and social needs. This is because the current legal system, in which there is no alternative service system in place, cannot be found innocent and is a matter to be solved through the preparation of alternative service systems. And the Supreme Court’s ruling and logic seem to be somewhat unreasonable in concluding that it is innocent even when reviewed in the order of the criminal system theory. Considering the purpose and purpose of the Military Service Act, conscientious objection does not constitute a justification for carving out elements of draft dodging, such as enlistment in the military service law, and domestic and international regulations are not allowed to be justified for acts according to the principle of clarity, and there is no room for illegality to be carved, and the scope of responsibility to be excessively reduced in the areas of responsibility, it is difficult to consider the standard person’s editorial. In this regard, the majority opinion and the Supreme Court’s interpretation of the law are regrettable. In order to acquit the conclusion, it would have been more logical and persuasive to take the theory of the standard of actors rather than the average theory and deal with it as a matter of responsibility. Despite this regret, however, the development of the idea that interest in minorities increases depending on the changing times and that their ideas should not be treated differently from the majority is a positive change, and finding the logic of innocence through the introduction of new laws or alternatives, and finding the logic of innocence in the interim process may be an alternative to judging it as an exemption structure of excessive defense.