병역법위반
The defendant's appeal is dismissed.
1. The gist of the grounds for appeal is that the Defendant, as a new witness, refused to enlist in active duty service according to a religious conscience, and such right to conscientious objection is guaranteed pursuant to Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights. Thus, the Defendant’s refusal to enlist in active duty service constitutes “justifiable cause” under Article 88(1) of the Military Service Act.
Nevertheless, the court below erred by misapprehending the legal principles which found guilty of the facts charged of this case, thereby affecting the conclusion of the judgment.
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(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 the national security is not achieved because such duty of military service is not fulfilled properly, the dignity and value as human beings cannot be guaranteed.
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, for the above constitutional legal interests, the freedom of conscience of a defendant is restricted in accordance with Article 37(2) of the Constitution.
This is a legitimate restriction permitted under the Constitution.
Supreme Court en banc Decision 2004Do2965 Decided July 15, 2004