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The defendant's appeal is dismissed.
Reasons
1. The gist of the grounds for appeal is that the Defendant, as a new witness, refused to enlist in active service according to his religious conscience, and such conscientious objection is guaranteed pursuant to Article 18 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights. Therefore, the lower court found the Defendant guilty of the instant facts charged despite the existence of “justifiable cause” under Article 88(1) of the Military Service Act that the Defendant refused enlistment, thereby adversely affecting the conclusion of the judgment.
2. Determination
A. “Justifiable cause” under Article 88(1) of the Military Service Act is, in principle, based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, and the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the non-performance of the duty, such as a disease, should
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.
B. Meanwhile, the freedom of conscience realization by passive omission among the freedom of religious conscience is a relative freedom that can be restricted by law pursuant to Article 37(2) of the Constitution in a case where there exists a constitutional legal interest to justify the restriction.
However, the duty of military service recognized by the national defense clause in our Constitution and the duty of military service clause is the foundation for the existence of the nation's community.