The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal that the defendant, as B, refused to enlist in the military on the grounds of religious conscience does not constitute justifiable grounds under Article 88(1) of the Military Service Act.

Nevertheless, the judgment of the court below which acquitted the charged facts of this case is erroneous in the misapprehension of legal principles.

2. Determination

A. The so-called conscientious objection and so-called conscientious objection according to relevant legal doctrine and conscience refer to refusing to perform the duty of military service accompanied by gathering guns or military training on the grounds of conscientious decision formed in religious, ethical, philosophical, or other similar motives.

Article 88(1) of the Military Service Act provides that a person shall be punished by imprisonment with prison labor for not more than three years for refusal of enlistment in active service.

In the Constitution, there is no emphasis on the national security, the new duty of national defense, and the duty of national defense given to the people.

If there is no existence of the nation, the foundation of guaranteeing fundamental rights will collapse.

The duty of military service specified in the duty of national defense shall be faithfully performed, and the military administration shall also be fairly and strictly executed.

Inasmuch as the Constitution guarantees the freedom of conscience, such value should not be neglected.

Therefore, the issue of whether conscientious objection is permitted is the conflict adjustment between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the duty of national defense under Article 39 of the Constitution.

However, the restriction on the freedom of conscience realization by passive omission may be an excessive restriction on the freedom of conscience or a threat to essential contents.

conscientious objection constitutes the realization of conscience by such passive omission.

conscientious objectors do not deny the duty of national defense under the Constitution itself.

On the other hand, any act accompanying military training or military training determined by the law that materializes the duty of national defense shall be conducted by performing the duty of military service.