The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, as a female witness and a new witness, refused to enlist in active duty service according to his 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.

Nevertheless, the lower court erred by misapprehending the legal doctrine and adversely affecting the conclusion of the judgment.

2. The phrase “justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed to be based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, but the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the nonperformancer, such as illness.

However, even in cases where a person who has refused to perform a specific duty is guaranteed by the Constitution of Korea and furthermore, has superior constitutional value to the function of the legislative purpose of the above provision, if punishment is imposed by applying the above provision, it would result in an undue infringement on his/her constitutional rights. Therefore, it is reasonable to deem that there exists “justifiable cause” to refuse to perform the duty, in order to exclude such unconstitutional situation.

However, among the freedom of conscience stipulated in Article 19 of the Constitution, the freedom of conscience formation held in the inner trial cannot be restricted to what is, and thus, subject to absolute protection. On the other hand, the freedom of conscience realization in the stage of externally expressing and realizing that formed conscience is a relative freedom and may be restricted by law in cases where it violates legal order itself or conflicts with other constitutional values.