The defendant's appeal is dismissed.

1. The gist of the grounds of appeal is that the right to conscientious objection is derived from the freedom of conscience guaranteed by Article 18 of the International Covenant on Civil and Political Rights (hereinafter “ICCPR”) and Article 19 of the Constitution of the Republic of Korea. As such, the Defendant’s refusal of enlistment in active service according to one’s religious conscience constitutes “justifiable cause” under Article 88(1) of the former Military Service Act (amended by Act No. 12560, May 9, 2014; hereinafter the same).

2. Determination

A. “Justifiable reason” under Article 88(1) of the former Military Service Act, which is a punishment provision for evading enlistment, is, in principle, premised on the existence of abstract military service and the confirmation of the performance of the duty itself. However, the reason that justify the nonperformance of the duty of military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, should be deemed to be limited to a reason that is not attributable to the non-

On the other hand, it is reasonable to view that there exists a justifiable reason to refuse to perform the duty of military service exceptionally in order to exclude such unconstitutional situation, even in cases where a person who refuses to perform the duty of military service is guaranteed by the Constitution of the Republic of Korea, and even in cases where the right is recognized as having superior constitutional value to the function of legislative purpose of the above provision, if punished by applying Article 88(1) of the former Military Service Act, it would result in unfairly infringing on his constitutional rights.

(1) Article 37(2) of the Constitution provides that “The freedom of conscience realization may be restricted by law” (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004). However, in a case where there is a constitutional legal interest to justify the restriction, the freedom of conscience realization is a relative freedom that can be restricted by law pursuant to Article 37(2) of the Constitution.” Article 88(1) of