The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the right to refuse military service is inherent in the freedom of conscience and religion as stipulated under Article 18 of the International Covenant on Civil and Political Rights and Articles 19 and 20 of the Constitution of the Republic of Korea, and the refusal of military service based on the Defendant’s religious conscience constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

In addition, the Defendant recognized that the refusal of military service based on religious conscience constitutes “justifiable cause” under Article 88(1) of the Military Service Act, and that he wishes to perform alternative military service in the private sector, so the Defendant has no intention to evade enlistment.

Therefore, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act is, in principle, an abstract duty of military service under the premise that the existence of such duty of military service and the existence of such duty of military service itself, and the reason why the nonperformance of such duty as specified is not attributable to the person who committed such act, i.e., disease, etc., can justify the nonperformance of such duty. However, there is a superior constitutional value that a person who refused the performance of a specific duty of military service is guaranteed by the Constitution of the Republic of Korea, and that the right is superior to the legislative purpose of

Even in cases where it is recognized, if a punishment is imposed by applying the above legal provision, it would result in unfairly infringing upon his/her constitutional rights. In this case, it is reasonable to deem that there exists "justifiable cause" to refuse to perform his/her duties exceptionally in order to eliminate such unconstitutional situation.

On the other hand, the duty of military service recognized by the Korean Constitution defense clause, the duty of military service clause, etc. is ultimately aimed at guaranteeing the dignity and value of the people as human beings.