The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the defendant, as a witness with Jehovahovah’s believers, refused enlistment according to his religious conscience. This constitutes “justifiable cause” under Article 88(1) of the Military Service Act, and the defendant has no possibility to expect the performance of military service. Therefore, the judgment of the court below convicting the defendant of the facts charged in this case

2. Determination

A. Whether a person constitutes “justifiable cause” under Article 88(1) of the Military Service Act or Article 39(1) of the Constitution is one of the citizens’ duty of national defense under Article 39(1) to ensure the dignity and value of all citizens as human beings. Ultimately, the freedom of conscience realization may be restricted by law pursuant to Article 37(2) of the Constitution when it conflicts with such duty of military service. Such restriction is a legitimate restriction permitted under the Constitution (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004; Constitutional Court en banc Decision 2002Hun-Ga1, Aug. 26, 2004; Supreme Court Decision 2007Do3795, Jul. 12, 2007); and Article 88(1) of the Military Service Act without exempting conscientious objectors from the duty of military service or giving them an opportunity to perform alternative military service.

Inasmuch as “civil and political rights” is not construed as contrary to the International Covenant on Civil and Political Rights (see, e.g., Supreme Court Decision 2007Do7941, Dec. 27, 2007) (see, e.g., Supreme Court Decision 2007Do7941, Dec. 27, 2007).

B. In order to determine whether the defendant is expected to have the possibility of performing the duty of military service and is likely to have an act contrary to his conscience decision, the defendant has a social average person instead of the actor under specific circumstances at the time of the act.