The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, as a believers of “novah’s Witness,” refused enlistment in active service according to a religious conscience. Since conscientious objection is guaranteed pursuant to Article 18 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights, the Defendant’s refusal to enlistment by the Defendant is “justifiable cause” under Article 88(1) of the Military Service Act.

Therefore, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Article 88(1) of the Military Service Act that punishs a person who evades enlistment in the army does not violate the Constitution (see Constitutional Court Order 2002Hun-Ga1, Aug. 26, 2004; Constitutional Court Order 2008Hun-Ga22, Aug. 30, 201). Moreover, the so-called conscientious objection pursuant to one’s conscience does not constitute “justifiable cause” as provided for by the exception of punishment under the aforementioned provisions of the Military Service Act, and punishing the same does not violate the freedom of conscience under Article 19 of the Constitution.

B. Article 18 of the International Covenant on Civil and Political Rights, in which Korea is a member of the Republic of Korea, does not derive the right to be exempted from the application of the above provisions of the Military Service Act to conscientious objectors according to conscience, and even if the United Nations Commission on the ICCPR proposed a recommendation, this does not have any legal binding force (see Supreme Court Decisions 2004Do2965 delivered on July 15, 2004; 2007Do8187 delivered on November 29, 2007). Accordingly, the judgment of the court below which found Defendant guilty of the charges of this case on the grounds that there is no justifiable reason under Article 88(1) of the Military Service Act in refusing enlistment by the defendant, and there is an error of law by misunderstanding any legal principles.

shall not be deemed to exist.

3. The defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition (the defendant flees or evidence).