The defendant's appeal is dismissed.

Summary of Grounds for Appeal

The Defendant refused enlistment in the military in accordance with a religious conscience guaranteed by the Constitution and the International Covenant as a witness of Hohovah, which constitutes “justifiable cause” under Article 88(1) of the Military Service Act, and thus, the lower court convicted the Defendant. In so determining, the lower court erred by misapprehending the legal doctrine.

Judgment

“Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, based on the existence of an abstract duty of military service and the confirmation of the performance of the duty itself, and it shall be deemed that there is a reason not attributable to the person with nonperformance, such as illness, that is, a reason that justify the nonperformance of the duty specified.

However, even in cases where a person who has refused to perform a specific duty is guaranteed by the Constitution of Korea and the right has superior constitutional value to the function of the legislative purpose of the above provision, if punished by applying the above provision, it would result in undue infringement on his/her constitutional rights. Thus, it is reasonable to deem that there exists "justifiable cause" to refuse to perform the duty exceptionally to exclude such unconstitutional situation.

However, among the freedom of conscience stipulated in Article 19 of the Constitution, the freedom of conscience formation, which remains in the inner trial, cannot be restricted to what is, and thus, subject to absolute protection. On the other hand, the freedom of conscience realization in the stage where such formed conscience externally expressed and realized is a relative freedom, and it may be restricted by law in cases where it violates the legal order itself or conflicts with other constitutional values. The duty of military service, which is one of the citizens’ national defense duty under Article 39(1) of the Constitution, ultimately requires the most basic foundation for the existence of a community of the nation.