The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, as a witness of Jehovahovah, refused enlistment according to a religious conscience guaranteed by the Constitution and the International Covenant, and this constitutes “justifiable cause” under Article 88(1) of the Military Service Act, and thus, the lower court convicted the Defendant, thereby misapprehending the legal doctrine.

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 a disease.

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

However, among the freedom of conscience stipulated in Article 19 of the Constitution, the freedom of conscience formation, which remains 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 where such formed conscience externally expressed and realized is a relative freedom, and may be restricted by law in cases where it violates the legal order itself or conflicts with other constitutional values. However, the duty of military service, which is one of the citizens’ national defense duty under Article 39(1) of the Constitution, ultimately requires the most basic foundation for the existence of the nation’s community.