The defendant's appeal is dismissed.

1. The summary of the grounds for appeal is that the Defendant refused enlistment according to his religious conscience, which is the right to guarantee the freedom of conscience under Article 18 of the United Nations Covenant on the Freedom of Freedom and Article 19 of the Constitution, and thus, constitutes “justifiable cause” under Article 88(1) of the Military Service Act, but the lower court found the Defendant guilty of the facts charged in this case. In so doing, the lower court erred by 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 illness,

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 religious conscience, the freedom of conscience realization by passive omission may conflict with other legal interests in the process of realizing that conscience, and if so, it may inevitably entail restriction. In such a case, the freedom of religious conscience realization by passive omission is restricted, and it does not immediately mean that there is an infringement on the essential substance of the freedom of religious conscience.

The exercise of fundamental rights under the Constitution is a common life with others within the national community.