병역법위반
The defendant's appeal is dismissed.
1. The gist of the grounds for appeal is that the Defendant, as a believers of “novah’s Witness”, refused to enlist in active duty service according to a religious conscience. Such right to refuse to serve in active duty service is derived from the freedom of conscience protected pursuant to Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights (hereinafter “Rules”) to which the Republic of Korea has acceded, and thus, the Defendant’s refusal to serve in active duty service constitutes “justifiable cause” as an exception to punishment for those who refuse to serve in active duty service under Article 88(1)
Nevertheless, the court below found the Defendant guilty of the facts charged of this case, which erred by misapprehending the legal principles, thereby affecting the conclusion of the judgment.
2. As to the so-called conscience objection, the Constitutional Court decided that Article 88(1) of the Military Service Act, which is a provision punishing evasion of enlistment, does not violate the Constitution (see Constitutional Court Order 2008HunGa2, Aug. 30, 201). The Supreme Court ruled that conscientious objection according to conscience does not constitute “justifiable cause” as provided for exceptions to punishment under the above provision, and that the right to be exempted from the application of the above provision is not derived from the provision of Article 18 of the International Covenant on Civil and Political Rights to which Korea is a member, and that even if the United Nations Commission on the Freedom of Civil Rights proposed recommendations, this does not have any legal binding force (see Supreme Court Decision 204Do2965, Jul. 15, 2004; Supreme Court Decision 2007Do815, Nov. 29, 2007; Supreme Court Decision 2008Do815, Nov. 29, 2007).