Conscientious Objectors Based on 'Personal Beliefs' Acquitted in First Instance for Violation of Military Service Act

On the afternoon of the 26th, when the alternative service system for conscientious objectors based on religious beliefs or nonviolence and pacifism was first implemented, an entrance ceremony for 63 conscientious objectors was held at the Alternative Service Training Center inside Daejeon Prison. The entrants are lined up to complete paperwork.
2020.10.26 Photo by Joint Press Corps

[Asia Economy Reporter Ryu Tae-min] Oh Su-hwan (30), who was recognized as the first alternative service candidate in South Korea for conscientious objection to military service rather than religious reasons, was acquitted in the first trial on charges of violating the Military Service Act.

According to the legal community on the 31st, Judge Nam Shin-hyang of the 17th Criminal Division at the Seoul Central District Court acquitted Oh, who was indicted without detention on charges of violating the Military Service Act, on the 21st. The court stated, "For defendants prosecuted and tried under the pre-amendment Military Service Act, justifiable reasons as defined in Article 88, Paragraph 1 of the Military Service Act are recognized," and explained that due to unconstitutional elements in the pre-amendment law, exceptional retroactive application of the amended law is permitted.

The Constitutional Court issued a constitutional discordance decision in June 2018, after Oh's refusal to enlist, stating that the Military Service Act, which did not provide an alternative service system for conscientious objectors based on freedom of conscience, infringed on conscience and was unconstitutional. Consequently, the Alternative Service Act concerning the incorporation and service of alternative service personnel was enacted in 2019.

Oh applied for review to the Alternative Service Incorporation Review Committee in July last year and received approval for incorporation in January this year. This was the first case where an application was accepted based on personal beliefs rather than as a member of a specific religion.

However, the prosecution viewed Oh's refusal to enlist after receiving the enlistment notice in February 2018, before the alternative service incorporation decision or the constitutional discordance ruling, as a violation of the Military Service Act and brought him to trial in September last year.

The court acquitted him, citing a Supreme Court precedent that "while retroactive application of laws generally contradicts the principle of the rule of law and is not recognized, retroactive application is permitted in special circumstances such as when the pre-amendment law contains unconstitutional elements and the law is amended to resolve them." The prosecution appealed the verdict.

This content was produced with the assistance of AI translation services.