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The defendant's appeal is dismissed.
Reasons
1. The gist of the grounds for appeal lies in the right derived from the freedom of conscience and the freedom of religion guaranteed by the Constitution and international law, which are guaranteed under Article 18 of the International Covenant on Civil and Political Rights (hereinafter “Convention”) and the right derived from the freedom of conscience and the freedom of religion, and the “justifiable cause” under Article 88(1) of the Military Service Act should be deemed to include conscientious objection based on a religious belief.
Therefore, although the defendant's refusal to enlist in the military constitutes "justifiable cause" under Article 88 (1) of the Military Service Act and does not constitute a crime, the court below erred in the misapprehension of legal principles that found the defendant guilty of the facts charged in this case, which affected the conclusion
2. Determination
A. As a matter of principle, “justifiable cause” under Article 88(1) of the Military Service Act, which is a punishment provision for an act refusing enlistment, shall be deemed as a matter of principle under the premise that the existence of abstract military service and the recognition of the performance of the duty itself, but that is, a reason to justify the nonperformance of the duty specified, that is, a cause not attributable to the nonperformance of the duty, such as a disease.
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.
However, among the freedom of religious conscience, the freedom of conscience realization by passive omission conflicts with other legal interests in the process of realizing that conscience.