The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, as a female and his witness, refused enlistment in active service according to religious conscience.

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, and there was no intention on the part of the Defendant in violation of the Military Service Act.

Nevertheless, the lower court’s judgment convicting the Defendant of the facts charged of this case is erroneous by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. The phrase “justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed to be based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, but the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the nonperformancer, such as illness.

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.

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

However, the nation's duty of military service recognized by the national defense clause in our Constitution and the military service clause.