The defendant's appeal is dismissed.

1. The summary of the grounds for appeal is based on the “right to refuse military service according to conscience” recognized pursuant to Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights, and thus, it constitutes “justifiable cause” as to non-compliance with the call-up of enlistment under Article 88(1) of the Military Service Act. However, the lower court erred by misapprehending the facts charged or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. With respect to conscientious objection under the conscience, the lower court determined that Article 88(1) of the Military Service Act, which is a provision punishing conscientious objectors, does not infringe on the freedom of conscience, and it is difficult to deem that Korea is immediately aware of the right to conscientious objection or legal binding force on conscientious objection pursuant to the International Covenant on Civil and Political Rights that was a member of April 10, 190. There is no international human rights treaty that explicitly recognizes the right to conscientious objection. Even if the right to conscientious objection is guaranteed in some European countries such as Europe, it cannot be deemed that the international customary law on guaranteeing the right to conscientious objection was formed, and thus, conscientious objection cannot be accepted in Korea as a generally recognized international law. Thus, even if a conscientious objector is punished pursuant to the instant legal provision, it cannot be deemed as a violation of Article 6(1) of the Constitution that declares the principle of respect for international law (see, e.g., Constitutional Court Order 2008Hun-Ga2, Aug. 30, 2011); and the Supreme Court also held that conscientious objection constitutes an exception under Article 8(1).