The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, as B, refused to enlist in the military according to his religious conscience as B, and this is the right to guarantee the freedom of conscience under Article 18 of the Constitution and Article 19 of the Constitution, and constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

Nevertheless, the court below found Defendant guilty of the facts charged of this case. The court below erred by misunderstanding facts or by misapprehending legal principles, which affected the conclusion of the judgment.

2. The phrase “justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed to be based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, but the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the nonperformancer, such as a disease

However, even in cases where a person who has refused to perform a specific duty is guaranteed by the Constitution of Korea and furthermore, has superior constitutional value to the function of the legislative purpose of the above provision, if punishment is imposed by applying the above 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, in order 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 if so, it may inevitably entail restriction. In such a case, the freedom of religious conscience realization by passive omission is restricted, and it does not immediately mean that there is an infringement on the essential substance of the freedom of religious conscience.

The exercise of fundamental rights under the Constitution is within the national community.