The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the defendant refused to enlist in the military according to conscience as the believers of a D religious organization. In light of the fact that the alternative military service system has not been introduced and the Criminal Code has to comply with the proportionality, punishing conscientious objectors 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”). Thus, it is reasonable to interpret that the defendant’s refusal to enlist in the military 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.

2. “Justifiable reason” under Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment in the military service, is, in principle, premised on the existence of abstract military service and the confirmation of the performance of the duty itself. However, it should be deemed that there is a reason to justify the nonperformance of the duty of military service specified by the decision of the Commissioner of the Military Manpower Administration, i.e., illness, etc.

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 such right is recognized as having superior constitutional value to the function of legislative purpose of the above provision of the Military Service Act, if punished by applying Article 88(1) of the same Act, it would result in an undue infringement on his constitutional rights, so in such a case, it is reasonable to view that there exists a justifiable reason to refuse to perform the duty of military service on an exceptional basis to exclude

However, Article 88 (1) of the Military Service Act provides the most basic national defense duty.