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The defendant's appeal is dismissed.
Reasons
1. The gist of the grounds for appeal (legal scenario) was that the Defendant refused to enlist in active duty service according to religious belief. This constitutes justifiable grounds under Article 88(1) of the Military Service Act, and the punishment of conscientious objectors is in violation of the International Covenant on Civil and Political Rights, and is in violation of the generally recognized international law.
2. Determination
A. The Constitutional Court made a decision that Article 88(1) of the Military Service Act, which is a provision punishing the act of evading enlistment, does not violate the Constitution (see, e.g., Constitutional Court Order 2002Hun-Ga1, Aug. 26, 2004; Constitutional Court Order 2008Hun-Ga22, Aug. 30, 201). The Supreme Court does not constitute “justifiable cause” as provided for the exception of punishment under the above provision. Article 18 of the International Covenant on Civil and Political Rights, in which Korea is a member of the Republic of Korea, does not derive the right to exempt conscientious objectors from the application of the above provision even from the provision of Article 18 of the International Covenant on Civil and Political Rights, and presented a recommendation by the United Nations Commission on Freedom.
Even if this does not have any legal binding force, it has been decided that it does not have any legal binding force.
(See Supreme Court en banc Decision 2004Do2965 Decided July 15, 2004, and Supreme Court Decision 2007Do8187 Decided November 29, 2007, etc.). Furthermore, even if the right to conscientious objection is guaranteed in some European countries, it cannot be deemed that the customary international law regarding the guarantee of the right to conscientious objection has been formed global, and thus, conscientious objection cannot be accepted in Korea as a generally accepted international law.
[Court Decision 208Hun-Ga22, 2009Hun-Ga7, 24, 2010Hun-Ga16, 37, 2008Hun-Ba103, 2009Hun-Ba3, 2009Hun-Ba3, 2011Hun-Ba16 (merged) decided August 30, 201, etc.] (b)
Therefore, the defendant's assertion is without merit.
3. In conclusion, the defendant's appeal is without merit.