병역법위반
The defendant's appeal is dismissed.
1. The grounds for appeal (misunderstanding of facts) are the believers’s believers, and the Defendant refused to enlist in active duty service according to a religious conscience. Since such right to refuse military service is guaranteed pursuant to Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights, the Defendant’s refusal to enlist in active duty service constitutes “justifiable cause” under Article 88(1) of the Military Service Act.
2. The fact that the exercise of fundamental rights under the Constitution ought to be carried out to the extent that it enables people to live a community with others within a State community and does not endanger other constitutional values and the legal order of the State is the basic limitation of the exercise of all fundamental rights, including the freedom of conscience.
The freedom of conscience is a relative freedom that can be restricted by law in accordance with Article 37, Paragraph 2 of the Constitution if there is a constitutional legal interest to justify the restriction.
In addition, Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, has been prepared to specify the duty of national defense, which is the most fundamental duty of the people, and if such duty of military service is not fulfilled properly and the national security is not guaranteed, it cannot be guaranteed the dignity and value as human beings.
Therefore, military service is ultimately aimed at ensuring the dignity and value of all citizens as human beings, and the freedom of conscience of conscientious objectors cannot be said to be superior to the above constitutional legal interests.
Therefore, even if the freedom of conscience of a defendant is restricted pursuant to Article 37(2) of the Constitution for the above constitutional legal interests, it would be a legitimate restriction permitted under the Constitution (see Supreme Court Decision 2004Do2965 delivered on July 15, 2004). Article 18 of the “International Covenant on Civil and Political Rights” to which Korea is a member of the Republic of Korea is interpreted as the freedom of religion and conscience under the Constitution of the Republic of Korea.