(영문) 광주지방법원 2013.4.10.선고 2013노61 판결

The defendant, as the believers of a religious organization, refused to enlist in the military according to a religious conscience guaranteed by the Constitution and the International Covenant, which constitutes "justifiable cause" under Article 88 (1) of the Military Service Act, and the judgment of the court below is erroneous in the misapprehension of legal principles.

2. Determination

"Justifiable reason" under Article 88 (1) of the Military Service Act shall be, in principle, based on the existence of an abstract duty of military service and the confirmation of the performance of the duty itself, but it shall be deemed that there is a reason that can justify the non-performance of the duty specified, i.e., a reason that is not attributable to

However, even in cases where a person who has refused to perform a specific obligation 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, if punishment is imposed by applying the above provision, it would result in undue infringement of his/her constitutional rights. In this case, it is reasonable to see that there exists a justifiable reason to refuse to perform the obligation to him/her exceptionally in order to exclude such unconstitutional situation.

However, among the freedom of conscience as stipulated in Article 19 of the Constitution, the freedom of conscience formation held 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 of externally expressing and realizing that formed conscience may be restricted by law in a case where it violates legal order itself or conflicts with other constitutional values as a relative freedom. As such, the freedom of military service, one of the citizens’ duty of national defense as stipulated in Article 39(1) of the Constitution, which is the most fundamental demand for existence of a community, is ultimately aimed at guaranteeing the dignity and value of all citizens as a human being. Thus, if the freedom of conscience realization conflicts with that of military service, the freedom of conscience realization may be restricted pursuant to Article 37(2) of the Constitution.

It can be limited by law, which is the legitimate restriction permitted by the Constitution.

(See Supreme Court Decision 2007Do3795 Decided July 12, 2007, etc.)

In addition, Article 18 of the International Covenant on Civil and Political Rights to which Korea is a member of the Republic of Korea only provides the same contents as above to the protection of fundamental rights guaranteed by the freedom of conscience under Article 19 of the Constitution and the freedom of religion under Article 20. In light of Article 6(1) of the Constitution, even if the above provision is considered, the right of a defendant to be exempt from the application of Article 88(1) of the Military Service Act exceptionally cannot be seen as derived, and the United Nations Commission on the ICCPR concluded that punishing a conscientious objector violates Article 18 of the above Covenant that guarantees the right to conscientious objection, the above interpretation has no legal binding force to the extent that the court’s statutory interpretation right guaranteed by Article 101(1) of the Constitution and the Constitutional Court’s power to decide on the unconstitutionality of the Constitution guaranteed by Article 107(1).

Ultimately, the defendant's refusal to enlist according to his religious conscience does not constitute justifiable grounds under Article 88 (1) of the Military Service Act. Thus, the above argument by the defendant is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.