The judgment of the court below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. The so-called conscientious objection and so-called conscientious objection mean refusing to perform the duty of military service accompanying military training or arms on the grounds of conscientious decisions based on religious ethical philosophical or similar motives 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, the State’s security, the new duty of national defense, and the duty of national defense granted to the citizens is not always emphasized (see Supreme Court Decision 2004Do2965 delivered on July 15, 2004, etc.). This is because, without the existence of the State, the basis for guaranteeing fundamental rights lies therein.

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.

The Constitution guarantees the freedom of conscience.

The above value should not be neglected.

Therefore, the issue of whether conscientious objection is permitted is the conflict mediation 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.

The restriction on the freedom of conscience realization by passive omission can 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.

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

On the other hand, a law that embodys the duty of national defense provides for the duty of military service, and refuses to perform the duty of military service on the ground that it cannot be conducted as a means of performing military training or training.

In addition to the current state of conscientious objection, conscientious objection is permitted in light of our economic power and national defense power, high national security awareness, etc.