The Defendant refused to enlist in the military according to his religious conscience as B, and such conscientious objection is guaranteed pursuant to Article 18 of the International Covenant on the Freedom of conscience and Civil and Political Rights under the Constitution, and thus constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service Act. Nevertheless, the lower court found that conscientious objection does not constitute “justifiable cause” and found the Defendant guilty of the facts charged in the instant case by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Determination

Article 88(1) of the Military Service Act is established to embody the duty of national defense of the most fundamental citizen, and it is clear that if the State’s security is not ensured because the duty of military service is not fulfilled properly, the dignity and value of human beings cannot be ensured. Therefore, the duty of military service is ultimately aimed at guaranteeing the dignity and value of all citizens as a human being, and the freedom of conscience of conscientious objectors cannot be deemed as superior value to the above constitutional legal interests. Ultimately, even if the freedom of conscience of the defendant is restricted pursuant to Article 37(2) of the Constitution for such legal interests, it is a justifiable restriction permitted under the Constitution (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004).

Meanwhile, from the provisions of Article 18 of the International Covenant on Civil and Political Rights to which Korea is a party, the right to be exempted from the application of the above provision is not derived, and even if the United Nations Commission on Freedom of Freedom proposed recommendations on conscientious objectors, this does not have any legal binding force. As to whether to introduce the alternative military service system, a broad discretion should be given to the legislators of the member country. As for the current issue of whether to introduce the alternative military service system, it cannot be deemed that the legislators’ determination that it is difficult to introduce the alternative military service is considerably unreasonable or clearly erroneous, and it does not be construed that it goes against the rules by punishing conscientious objectors as a violation of Article 88(1) of the Military Service Act without exemption from military service or opportunity for alternative military service (see, e.g., Supreme Court Decision 2007Do7941, Dec. 27, 2007).

Therefore, the defendant's refusal to enlist according to his religious conscience does not constitute "justifiable cause" under Article 88 (1) of the Military Service Act. Thus, the judgment below which found the defendant guilty of the facts charged in this case does not err in the misapprehension of legal principles.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jin-tae

Judges Jinsu-syun