병역법위반
The defendant's appeal is dismissed.
1. The summary of the grounds for appeal is that the defendant, as the believers of a religious organization, refused to enlist in the military according to his religious conscience. Such refusal to enlist in the military according to one's conscience constitutes an exercise of specific rights derived from Article 18 (1) of the International Covenant on Civil and Political Rights (International Covenant on Civil and Political Rights) incorporated as part of the legal system of the Republic of Korea pursuant to Articles 19 and 6 (1) of the Constitution, and thus, the defendant's refusal to enlist in the military service constitutes "justifiable cause" under Article 88 (1) of the Military Service Act. However, the judgment of the court below which found the defendant guilty of the facts charged in this case and thereby affected the conclusion of the judgment.
2. The phrase “justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed to be based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, but the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the nonperformancer, such as illness,
However, even in cases where a person who has refused to perform a specific obligation is guaranteed by the Constitution of Korea and the right is deemed to have superior constitutional value that functions as a legislative purpose of the above provision, if punishment is imposed by applying the above provision, it would result in an undue infringement on his/her constitutional rights. Therefore, it is reasonable to deem that there exists “justifiable cause” to refuse to perform the obligation to exclude such unconstitutional situation.
In our Constitution, the duty of military service recognized by the national defense clause and the national defense duty clause are the most fundamental requirement for the existence of the nation's community, and ultimately, it is aimed at guaranteeing the dignity and value of the people as human beings.