The defendant's appeal is dismissed.

1. The summary of the grounds for appeal is the right derived from the freedom of conscience and the freedom of religion guaranteed under the Constitution and international law, and the “justifiable cause” under Article 88(1) of the Military Service Act refers to the right derived from the freedom of conscience and the freedom of religion guaranteed under Article 18 of the International Covenant on Civil and Political Rights (hereinafter “Convention”) and Article 88(1) of the same Act.

Therefore, although the defendant's refusal to enlist in the military constitutes "justifiable cause" under Article 88 (1) of the Military Service Act and does not constitute a crime, the court below erred by misapprehending the legal principles on "justifiable cause" under the above legal provisions and thereby affecting the conclusion of the judgment.

2. Determination

A. “Justifiable cause” 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 recognition of the performance of the duty itself, and the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the non-performance of the duty, such as a disease, should

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

However, the duty of military service, which is one of the citizens' defense duty under Article 39 (1) of the Constitution, is the nation.