The defendant's appeal is dismissed.

1. The gist of the grounds of appeal is that the right to conscientious objection is derived from the freedom of conscience guaranteed by Article 18 of the International Covenant on Civil and Political Rights (hereinafter “Rules”) and Article 19 of the Constitution, and thus, constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, is, in principle, premised on the existence of an abstract military service and the confirmation of the performance of the duty itself. However, the reason that justify the nonperformance of the duty of military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, should be deemed to be limited to a reason that is not attributable to the non

On the other hand, it is reasonable to view that there exists a justifiable reason to refuse to perform the duty of military service exceptionally in order to exclude such unconstitutional situation in case where the person who refuses to perform the duty of military service is guaranteed by the Constitution of the Republic of Korea, and furthermore, even if the right is recognized as having superior constitutional value to fulfill 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.

(1) Article 37(2) of the Constitution provides that “The freedom of conscience realization is a relative freedom that can be restricted by law in a case where there is a constitutional legal interest to justify the restriction.” Article 88(1) of the Military Service Act provides that “The freedom of conscience realization is for guaranteeing the dignity and value of all citizens as a human being, and it is difficult to view that the freedom of conscience of conscientious objectors is superior to the above constitutional value.”