A. misunderstanding of facts and misapprehension of legal principles, the Defendant refused to enlist in active duty service according to one’s conscience formed based on a religious belief as a believers, which is guaranteed pursuant to Articles 19 (Right of conscience), 20 (1) (Right of religion), and 18 (Right to Freedom of conscience and Freedom of religion) of the International Covenant on Civil and Political Rights. Thus, the Defendant’s conscientious objection constitutes justifiable cause under Article 88(1) of the Military Service Act.

Nevertheless, the court below found the Defendant guilty of the facts charged of this case. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

B. The punishment of the lower court (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and legal principles, the exercise of fundamental rights under the Constitution should be carried out to the extent that it enables people to live a community with others within a national community and does not endanger other constitutional values and the legal order of the State is a fundamental limitation on the exercise of all fundamental rights, including the freedom of conscience and religion.

The freedom of conscience and religion 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 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, the duty of military service ultimately aims to ensure the dignity and value of all citizens as human beings, and the freedom of conscience and religion of conscientious objectors.