The prosecutor's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, as a believers of a D religious organization, refused enlistment in active duty service in accordance with the order of conscience formed by such religious doctrine. Such grounds are difficult to be deemed as justifiable grounds for refusing to perform the duty of military service. Thus, the Defendant constitutes a violation of the Military Service Act against the Defendant.

2. Determination

A. conscientious objection and so-called conscientious objection pursuant to relevant legal doctrine and conscience refer to refusing to perform military service involving arms or training on the grounds of conscientious decision based on a religious, ethical, moral, philosophical, or other similar motive formed.

Article 88(1) of the Military Service Act provides that a person shall be punished by imprisonment with prison labor for not more than three years for refusal of enlistment in active service.

In the Constitution, there is no emphasis on the national security, the new duty of national defense, and the duty of national defense given to the people.

If there is no existence of the nation, the foundation of guaranteeing fundamental rights will collapse.

The duty of military service specified in the duty of national defense shall be faithfully performed, and the military administration shall also be fairly and strictly executed.

Inasmuch as the Constitution guarantees the freedom of conscience, such value should not be neglected.

Therefore, the issue of permitting conscientious objection is the conflict and coordination between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the duty of national defense under Article 39 of the Constitution.

However, the restriction on the freedom of conscience realization by passive omission may be an excessive restriction on the freedom of conscience or a threat to essential contents.

conscientious objection constitutes the realization of conscience by such passive omission.

conscientious objectors do not deny the duty of national defense under the Constitution itself.

On the other hand, the duty of military service shall be stipulated in the law that embodys the duty of national defense.