The defendant's appeal is dismissed.

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

Since such right to refuse military service is guaranteed pursuant to Article 18 of the International Covenant on the Freedom of conscience and Religious and Civil and Political Rights (hereinafter “Rules”) under Articles 19 and 20 of the Constitution, refusal of military service according to religious conscience constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

In addition, the defendant has no intention to evade enlistment, because he intends to do alternative service irrelevant to the military and do not go against conscience.

However, the lower court found the Defendant guilty of the facts charged of this case and erred by misapprehending the legal doctrine.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed as the existence of an abstract duty of military service under the premise of the existence of such duty of military service and the recognition of the performance thereof, but the reason that can justify the nonperformance of such duty as specified, i.e., disease, etc., is not attributable to the person who committed such duty.

However, there is a superior constitutional value that a person who has refused to perform a specific duty is guaranteed by the Constitution of the Republic of Korea and further has superior constitutional value that functions as the legislative purpose of the above provision.

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.

In our Constitution, the duty of military service recognized by the national territory defense clause, the duty of military service clause, etc. is the most fundamental requirement for the existence of the nation's community.