The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, “Ihovah’s Witness,” refused enlistment according to a religious conscience. As the Defendant’s right to refuse military service according to a religious conscience is derived pursuant to Article 18 of the International Covenant on Civil and Political Rights and Article 19 of the Constitution of the Republic of Korea, there is “justifiable cause” to refuse enlistment under Article 88(1) of the Military Service Act for the Defendant.

Therefore, even if the defendant refused enlistment, the crime of violating the Military Service Act is not established.

However, the court below erred by misapprehending the legal principles that found Defendant guilty of the facts charged in this case, which affected the conclusion of the judgment.

2. In full view of the following circumstances and legal principles acknowledged by the evidence duly adopted and investigated by the court below, the refusal by the defendant to enlist according to his religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.

① “Justifiable cause” under Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, is, in principle, premised on the existence of an abstract military service and the recognition of the performance thereof. However, the reason why the nonperformance of the military service specified by the decision of the head of the Military Affairs Administration, such as illness, is not attributable to the person who committed the same, that is, the reason why the nonperformance of the military service cannot be justified. Ultimately, the military service is aimed at ensuring the dignity and value of all citizens, and the Defendant’s freedom of conscience is superior to the above constitutional legal interests. As a result, even if the Defendant’s act is based on a religious conscience, it does not constitute justifiable cause under Article 88(1) of the Military Service Act. Restrictions on the Defendant’s freedom of conscience pursuant to Article 37(2) of the Constitution for the sake of the constitutional benefit and protection of the law is a legitimate restriction permitted under the Constitution.