The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant refused to enlist in active duty service according to conscience, and such right to refuse military service is derived from the freedom of conscience as stipulated under Article 18 of the International Covenant on Civil and Political Rights, which is incorporated as part of Article 19 of the Constitution and domestic law, and thus, the Defendant’s act constitutes “justifiable cause” as stipulated under Article 88(1) of the Military Service Act.

2. However, it is the fundamental limitation of the exercise of all fundamental rights, including the freedom of conscience, that the exercise of fundamental rights under the Constitution should be carried out to the extent that it enables people to live a community with others within a community and does not endanger other constitutional values and national legal order.

The freedom of conscience is a relative freedom that can be restricted by law in accordance with Article 37, Paragraph 2 of the Constitution if there is a constitutional legal interest to justify the restriction.

In addition, Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, has been prepared to specify the duty of national defense, which is the most fundamental duty of the people, and if such duty of military service is not fulfilled properly and the national security is not guaranteed, it cannot be guaranteed the dignity and value as human beings.

Therefore, military service is ultimately aimed at ensuring the dignity and value of all citizens as human beings, and the freedom of conscience of conscientious objectors cannot be said to be superior to the above constitutional legal interests.

Therefore, even if the freedom of conscience of a defendant is restricted pursuant to Article 37(2) of the Constitution for the above constitutional legal interests, it would be a legitimate restriction permitted under the Constitution (see Supreme Court Decision 2004Do2965 delivered on July 15, 2004). In addition, “International Covenant on Civil and Political Rights” to which Korea has acceded.