A. The Defendant, as a believers of a religious organization B, refused to enlist in active duty service according to one’s 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. As such, the Defendant’s refusal to enlist in active duty service constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

B. Article 88(1) of the Military Service Act provides that only imprisonment for not more than three years shall be statutory penalty. This is an infringement on the essential part of the freedom of conscience, which is unconstitutional.

2. Determination

A. The court below rejected the Defendant’s assertion in detail under the title “judgment on the Defendant’s assertion”, which is identical to the grounds for appeal under Article 88(1) of the Military Service Act, on the ground that the Defendant’s assertion constitutes “justifiable cause” as provided by Article 88(1) of the same Act. The judgment of the court below is justified, and there is no error of law by misunderstanding the legal principles, which affected the conclusion of the judgment.

B. From among the freedom of religious conscience determination as to the assertion that Article 88(1) of the Military Service Act is unconstitutional, the freedom of conscience realization by passive omission may conflict with other legal interests in the process of realizing that conscience. In such a case, there may be inevitable restrictions. In such a case, the freedom of religious conscience realization by passive omission is restricted, and it is difficult to deem that there is an infringement on the essential substance of the freedom of religious conscience immediately on the grounds that the freedom of religious conscience realization by passive omission is restricted.

In other words, it is the principle of exercising all fundamental rights, including freedom of religious conscience, that fundamental rights should be exercised within the scope that enables people to live a community with others within the nation and should be done within the scope that does not endanger other constitutional values and national legal order.