The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, as the believers of a religious organization, refused to enlist in the military according to that religious conscience, and the act of conscientious objection is derived from the freedom of conscience and the freedom of religion guaranteed under the Constitution and international law, and the “justifiable cause” under Article 88(1) of the Military Service Act includes conscientious objection based on religious belief.

Therefore, although the defendant's refusal to enlist in the military constitutes "justifiable cause" under Article 88 (1) of the Military Service Act and does not constitute a crime, the court below erred in the misapprehension of legal principles that found the defendant guilty of the facts charged in this case, which affected the conclusion

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act is, in principle, based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, and the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the non-performance of the duty, such as a disease, should

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

However, the duty of military service, which is one of the national defense duty under Article 39 (1) of the Constitution, is the foundation for the existence of the nation's community.