The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is “B religious organization” and the Defendant refused enlistment according to conscience formed based on religious belief.

Such conscientious objection is the right derived from the freedom of conscience under Article 19 of the Constitution and the freedom of conscience guaranteed by Article 18 of the International Covenant on Civil and Political Rights, which is of the nature as a constitutional norm, as an international rule to which Korea has acceded.

Therefore, the defendant's refusal to enlist in active duty service constitutes a "justifiable cause" under Article 88 (1) of the Military Service Act, which provides for exceptions to punishment of those who evade enlistment.

Nevertheless, the lower court erred by misapprehending the legal doctrine, thereby finding the Defendant guilty.

2. The “justifiable cause” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of abstract military service duty and the existence of the performance of the duty itself. However, it is limited to a cause that can justify the nonperformance of the duty of military service specified by the decision of the head of the Military Affairs Administration, etc., that is, a cause that cannot be attributable to the person who committed the duty

However, the right of a person who refused to perform the specific duty of military service is guaranteed by the Constitution of the Republic of Korea, and the right has superior constitutional value to the function of the legislative purpose of the above provision of the law.

Even in cases where it is recognized, if punishment is imposed by applying Article 88(1) of the Military Service Act, it would result in an undue infringement on his constitutional rights. In this case, 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.

On the other hand, the freedom of conscience realization by passive omission among the freedom of religious conscience has a constitutional legal interest to justify the restriction, pursuant to Article 37 (2) of the Constitution.