The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. As Eindo, the Defendant, as Eindo, refused to enlist in the army according to conscience.

Considering the fact that the alternative military service system has not been introduced and the Criminal Act provisions must comply with the principle of proportionality, punishing a refusal of military service on the grounds of conscience is contrary to Article 19 of the Constitution guaranteeing the freedom of conscience and Article 18 of the International Covenant on Civil and Political Rights (hereinafter “Rules”). Therefore, it is reasonable to interpret that the defendant’s refusal of enlistment does not constitute a crime where there exists “justifiable cause” under Article 88(1) of the Military Service Act.

On a different premise, the lower court erred by misapprehending the legal doctrine that found the Defendant guilty of the facts charged, thereby adversely affecting the conclusion of the judgment.

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

2. Determination

A. In principle, “justifiable cause” under Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment in a judgment of misapprehension of legal principles, is premised on the existence of abstract military service and the recognition of its performance itself. However, it should be deemed that there is a cause that can justify the non-performance of military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, that is, a cause not attributable to the non-

However, even in cases where a person who has refused to perform a specific duty of military service is guaranteed by the Constitution of the Republic of Korea, and furthermore, even in cases where the right has superior constitutional value to the function of the legislative purpose of the above provision, if punished by applying Article 88(1) of the Military Service Act, it would result in an undue infringement on his constitutional rights, so in such a case, the duty of military service shall be performed exceptionally to avoid such unconstitutional situation.