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. Thus, the refusal of enlistment based on the Defendant’s religious conscience constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

In addition, there is a “justifiable cause” under Article 88(1) of the Military Service Act to refuse the above enlistment.

The defendant did not have the intention to evade enlistment without justifiable grounds, because he recognized that he had the intention to perform the general service of the private sector.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous by misapprehending the legal principles or affecting the conclusion of judgment.

2. Determination

A. Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment as to “justifiable cause” under Article 88(1) of the Military Service Act, was prepared to specify the duty of national defense for the most fundamental citizen. It is clear that the dignity and value of citizens cannot be guaranteed if national security is not achieved because such duty of military service is not fulfilled properly.

Therefore, military service is ultimately aimed at ensuring the dignity and value of all citizens as human beings, and the defendant's freedom of conscience is a superior value to the above constitutional legal interests.

As a result, 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). Furthermore, Article 18 of the International Covenant on Civil and Political Rights to which Korea is a party, Article 88(1) of the Military Service Act applies to conscientious objectors pursuant to conscience under Article 18 of the same Act.