In a situation where the alternative uniforms are not introduced, the “justifiable cause” under Article 88(1) of the Military Service Act is included in the “justifiable cause” as prescribed by Article 88(1) of the same Act in a harmonious interpretation of the constitutional norm. Therefore, on a different premise, the lower court erred by misapprehending the legal doctrine that there is no justifiable reason to refuse enlistment of Defendant 1, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Article 88(1) of the Military Service Act that punishs a person who evades enlistment in the army as a standard does not violate the Constitution (see Constitutional Court Order 2002Hun-Ga1, August 26, 2004; Constitutional Court Order 2008Hun-Ga22, August 30, 201). Moreover, the so-called conscientious objection based on one’s conscience does not constitute “justifiable cause” as provided for by the exception of punishment under the above provisions of the Military Service Act, and punishing the same does not violate the freedom of conscience under Article 19 of the Constitution.

B. The right to be exempted from the application of the above provision of the Military Service Act to conscientious objectors pursuant to the provision of Article 18 of the ICCPR to which Korea is a member of the Republic of Korea is not derived, and even if the United Nations Committee on the ICCPR proposed a recommendation, this does not have any legal binding force (see Supreme Court Decisions 2004Do2965 delivered on July 15, 2004; 2007Do8187 delivered on November 29, 2007).