The defendant's appeal is dismissed.

1. The gist of the grounds for appeal (legal scenarios) was that the Defendant refused to enlist in active duty service according to religious conscience as well as as the Witness and Witness Act.

Since such conscientious objection is guaranteed pursuant to Article 18 of the Constitution’s freedom of conscience and the International Covenant on Civil and Political Rights, there was “justifiable cause” under Article 88(1) of the Military Service Act that the Defendant refused to enlist.

Nevertheless, the lower court erred by misapprehending the legal doctrine and adversely 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 duty is guaranteed by the Constitution of Korea and furthermore, 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 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, in order to exclude such unconstitutional situation.

B. Meanwhile, the freedom of conscience realization by passive omission among the freedom of religious conscience is a relative freedom that can be restricted by law pursuant to Article 37(2) of the Constitution in a case where there exists a constitutional legal interest to justify the restriction.

However, the duty of military service recognized by the national defense clause in our Constitution and the duty of military service clause is most important for the existence of the nation's community.