A. Defendant: Legal principles (i) The Defendant refused to undergo the training of homeland reserve forces according to the religious conscience as a female witness, which is an act in accordance with the freedom of conscience guaranteed under Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights incorporated as part of the domestic law; thus, each of the instant reserve forces’ refusal to undergo the training constitutes a case where “justifiable cause” under Article 15(9)1 of the Establishment of Homeland Reserve Forces Act exists. (ii) The judgment became final and conclusive upon conviction of the Defendant on several occasions due to the fact that the Defendant had already refused the training of the reserve forces according to religious conscience before the instant case, and the facts that have already become final and conclusive are identical to the instant refusal to undergo the training of the reserve forces, and thus, separately punishing the refusal to undergo the training of the reserve forces in question is in violation of the principle of prohibition

Prosecutor: 2. Determination of this Court

A. As to the assertion of misapprehension of the legal doctrine, the legal principle of judicial precedents, which seems effective until now, is next to the argument that constitutes “justifiable cause” under the Establishment of Homeland Reserve Forces Act.

In a case where a legitimate legal interest exists to restrict the freedom of conscience realization, the law can be limited pursuant to Article 37(2) of the Constitution, and the duty of military service ultimately ensures the dignity and value of all citizens as a human being, and there is no national consensus on the fact that the freedom of conscience of a person liable for military service is more superior to such constitutional legal interest. Thus, even if the freedom of conscience of a defendant is restricted pursuant to Article 37(2) of the Constitution for the sake of such constitutional legal interest, it is within the scope of legitimate restriction

Supreme Court Decision 2012Do5863 Decided July 12, 2012 and Supreme Court Decision on July 15, 2004