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The defendant's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal (legal scenario) is that the Defendant refused to enlist according to religious conscience, and there is “justifiable cause” under Article 88(1) of the Military Service Act.
2. Determination
A. "Justifiable reason" under Article 88 (1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the confirmation of its performance. However, the reason why the non-performance of the military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, is not attributable to the non-performance of the military service. However, even in a case where the right of the non-performance of the specific military service is guaranteed by the Constitution of Korea, and the right of the non-performance of the duty of military service is recognized as having superior constitutional value to the legislative purpose of the above legal provision, if punishment is imposed by the application of Article 88 (1) of the Military Service Act, it would result in undue infringement of his constitutional right. Thus, it is reasonable to view that there exists a justifiable reason for the non-performance of the duty of military service 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 accordingly, may be subject to restriction. In such a case, the freedom of religious conscience realization by passive omission is restricted, and it is difficult to deem that there exists an infringement on the essential substance of the freedom of religious conscience.
In other words, the freedom of religious conscience realization should be regarded as a relative freedom that can be restricted by law in accordance with Article 37(2) of the Constitution if there is a constitutional legal interest to justify the restriction.
However, the duty of national defense as referred to in Article 39 (1) of the Constitution.