The defendant's appeal is dismissed.

1. The summary of the grounds for appeal was that the Defendant refused to enlist in the active duty service in the instant case, but such refusal is a new “D religious organization” and thus, refused according to its religious conscience.

The refusal of enlistment according to such religious conscience is the right derived from the freedom of conscience guaranteed by Article 19 of the Constitution. The imposition of punishment without preparing alternative measures such as the alternative military service system is indirectly compelling the enlistment in active duty service against the defendant's conscience decision.

In addition, the act of conscientious objection, such as the instant case, is guaranteed by Article 18 of the International Covenant on Civil and Political Rights (hereinafter “Rules on Freedom”). In light of the recent decision of the United Nations Commission on Freedom, the attitude of the European Court on Human Rights, etc., such act constitutes an generally accepted international law and has the same effect as that of domestic law in accordance with Article 6(1) of the Constitution.

In light of the above circumstances, “justifiable cause” under Article 88(1) of the Military Service Act should be interpreted as including 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 found the defendant guilty of the facts charged in this case, which erred by misapprehending the legal principles and affected the conclusion

2. Determination

A. Article 19 of the relevant legal doctrine provides that “All citizens shall enjoy the freedom of conscience.” From among the freedom of conscience under the Constitution, the freedom of conscience formation, which remains within the inner realm, may not be restricted, and thus, may be absolute protection. On the other hand, the freedom of conscience realization in the stage where the formation of conscience externally expressed and realized is a relative freedom and contrary to the legal order itself.