Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018【Violation of the Military Service Act】

【Main Issues and Holdings】

[1] Legal nature of “justifiable cause” as defined by Article 88(1) of the Military Service Act (held: grounds for exclusion of constituent elements) and matters for consideration when determining the existence of justifiable grounds

Whether the so-called conscientious objection to military service constitutes “justifiable cause” as defined by Article 88(1) of the Military Service Act (affirmative with restriction)

Whether the matter of acknowledging conscientious objection as justifiable grounds under the foregoing Article is in a logically consequential relationship with the existence or absence of alternative military service for conscientious objectors (negative)

Meaning of “genuine conscience” as referred to in conscientious objection, and method of proof as to whether “genuine conscience” constitutes justifiable grounds

Allocation of the burden of proof as to the nonexistence of justifiable grounds (held: prosecutor)

【Summary of Decision】

[1] [Majority Opinion] ① Article 88(1) of the Military Service Act is a penalty provision for those who evade the duty of military service without justifiable cause upon receiving a notice of enlistment in active service or a written draft notice, thereby suppressing evasion and securing armed forces. Pursuant to the foregoing provision, nonperformance of such military service duty may be punishable if there exists a justifiable cause. Here, “justifiable cause” refers to grounds for exclusion of constituent elements and is distinctive from a “justifiable act” (grounds for exclusion of illegality) or “impossibility of occurrence of an illegal act” (grounds for exclusion of responsibility) under the Criminal Act.

Justifiable cause is an indefinite concept that ought to be individually determined by the judiciary on a case-by-case basis, thereby preventing unreasonable outcomes that may arise from the rigid application of positive law and realizing well-grounded reasonableness. Determination of whether there exists justifiable cause as prescribed by the aforementioned Article 88(1) should consider such factors as the purpose and function of the Military Service Act, impact of the performance of military service duty on the overall legal order including the Constitution, social reality, and changing of the times, not to mention the specific and individual circumstances of a defendant.

Even as to matters not considered in the process of imposing the duty of military service, if a specific and individual circumstance of the person, who is obligated to serve in the military but refuses to do so, results in disabling said person from coping with the challenges associated with military service, such circumstance ought to be deemed as constituting “justifiable cause” as stipulated in Article 88(1) of the Military Service Act. The same holds true even where such circumstance is not simply temporary or does not occur among others.

② Refusal to perform the duty of military service on moral or religious grounds (so-called “conscientious objection”) refers to an act of refusing to participate in military training or bear arms based on a conscientious judgment established by a religious, ethical, moral, and philosophical motive or other motives similar thereto. That is, a person chooses to object to performing the duty of military service on grounds that one cannot participate in military training or bear arms going against his conscience and that doing so would be inviting the destruction of the value of existence as a human being. Ultimately, conscientious objectors are willing to endure any and all restraints that result from not being able to go against his moral or religious conscience and self-destroy the value of existence as a human being.

Article 88(1) of the Military Service Act provides that any person who fails to enlist in the military shall be punished by imprisonment with labor for not more than three years. In actual trials, without considering the individual circumstances of conscientious objectors, the judiciary uniformly sentences a conscientious objector to imprisonment with labor for at least one year and six months, which applies to persons subject to enlistment in wartime labor service as prescribed by Article 136(1) Subparag. 2(a) of the Enforcement Decree of the Military Service Act. Despite the prevalence of such criminal punishment, there are quite a number of instances where a father and son or male sibling are all serving a prison sentence, and an average of roughly 600 conscientious objectors each year refuse to serve in the military.

The Constitution’s sacred duty of preserving national security and defending our homeland as well as the duty of national defense imposed on all citizens cannot be emphasized enough. This is because the nonexistence of a State shakes the very foundation of guaranteeing fundamental rights. Having materialized the citizen’s duty of national defense through the Military Service Act, the duty of military service ought to be faithfully performed and military administration should be fairly and rigidly executed. The foregoing value should not be neglected just because the Constitution guarantees the freedom of conscience.

Therefore, whether to permit conscientious objection is a normative clash, and requires coordination, between constitutional provisions, i.e., Article 19 (provision on basic rights such as the freedom of conscience) and Article 39 (provision on the duty of national defense).

Article 39(1) of the Constitution stipulates that “All citizens shall have the duty of national defense under the conditions as prescribed by Act.” That said, the specific method and details of performing the duty of national defense are matters to be decided by law. Accordingly, the duty of military service is specified in the Military Service Act and Article 88(1) of the same Act punishes nonperformance of such duty while, at the same time, has a provision on “justifiable cause” and subsequently allows the legislator to resolve conflicts that are difficult to enumerate in detail. Thus, the issue of normative clash and coordination as to conscientious objection ought to be resolved through the literal construction of “justifiable cause” as defined by Article 88(1) of the Military Service Act. This interpretative method is not only a way to tackle conflicts head on but also accords with the purport of the Military Service Act.

As seen above, the restriction of the freedom of conscience formation by passive omission may either excessively restrain the freedom of conscience or undermine the inherent substance of the same. Conscientious objection to perform military service falls under such conscience formation by passive omission. Conscientious objectors do not deny the duty of national defense itself under the Constitution; provided, however, they merely refuse to perform such duty materialized by the Military Service Act that stipulates the method of performing military service, i.e., participating in military training or bearing arms.

As a system for guaranteeing fundamental rights, the Constitution should be construed and applied to realize such rights to the fullest. Article 10 of the Constitution declares, “All citizens shall be assured of human worth and dignity and have the right to pursuit of happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.” The freedom of conscience is an essential condition to maintain the dignity of humans as a moral, spiritual, and intellectual being.

In light of the current status of conscientious objection as seen earlier along with Korea’s economic power and national defense power and the public’s high level of security awareness, etc., permitting conscientious objection cannot be necessarily deemed as impeding efforts toward preserving national security and strengthening national defense. Therefore, forcing genuine conscientious objectors to perform military service accompanied by participation in military training and bearing arms and punishing the same for nonperformance may be excessively restricting the freedom of conscience or distorting the inherent substance of such freedom.

Free democracy functions according to the principle of majority rule, but the same can be justified only when premised on the embracement and tolerance of the minority. On the ground that consent was not obtained from the majority of the public, a State cannot forever neglect the existence of conscientious objectors who inevitably refuse to enlist in the military to preserve one’s value of existence as a human being even at the risk of being subject to criminal punishment. The fact that the issue of normative clash is insolvable based on uniformly imposing criminal punishment has been verified through the passage of time. Albeit readily consenting to such belief is improbable, the time has come to embrace and tolerate conscientious objectors.

In short, sanctions, such as criminal punishment, should not be imposed on a person who does not perform the duty of military service involving participation in military training or bearing arms on the ground of one’s inner-formed conscience. Uniformly forcing the performance of military service against conscientious objectors and imposing criminal punishment for nonperformance are not only unreasonable in light of the constitutional system that guarantees fundamental rights, such as the freedom of conscience, and the overall legal order, but also contravene the spirit of free democracy pertaining to the embracement and tolerance of the minority. Accordingly, should the performance of military service were to have been refused due to a genuine conscience, then such refusal ought to constitute “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.

③ Whether to acknowledge conscientious objection as a justifiable cause under Article 88(1) of the Military Service Act is not in a logically consequential relationship with the existence or absence of alternative military service, which may serve as a means to resolve the issue of equity regarding the duty of military service that may arise when conscientious objection is acknowledged. That is, alternative military service is premised on the recognition of conscientious objection. Thus, albeit alternative military service is currently not in place or is likely to be introduced in the future, a defendant, who is standing trial upon being indicted for violating Article 88(1) of the Military Service Act, should not be punished if justifiable cause under Article 88(1) is acknowledged.

④ Deliberating and determining whether conscientious objection may be recognized as a justifiable reason is a critical issue. Here, conscience refers to a devout, firm, and sincere belief. Being devout means deeply committed or devoted to a belief that has an overall impact on one’s thoughts and actions. An individual’s entire, not partial, life should be under the influence of such belief. Having a firm belief means that such belief is neither fluid nor variable. Although it does not necessarily mean eternal, such belief possesses an obvious substance that does not tend to easily change. Sincere belief means that no falsehood exists and that such belief is neither conciliatory nor tactical depending on circumstances. Even if a conscientious objector were to have a devout and firm belief, if he were to act differently from his belief depending on circumstances, then such belief cannot be deemed as sincere.

In a specific case pertaining to the violation of the Military Service Act, should a defendant assert conscientious objection, the foremost thing to do is to distinguish whether such moral or religious belief is devout, firm, and sincere as seen above. Inasmuch as directly and objectively proving a human being’s inner conscience is improbable, the matter ought to be determined by way of proving indirect facts or circumstantial evidence in light of the nature of things (dererum natura).

Key determinants as to the assertion of conscientious objection to military service based on a religious belief are: (i) the religious creed the conscientious objector believes in; (ii) whether refusal of military service is ordered by that religious dogma; (iii) whether such believers are actually objecting military service; (iv) whether said religion recognizes the defendant (conscientious objector) as an official member; (v) whether the defendant is familiar and complies with the basic tenet; (vi) whether the defendant’s assertion of conscientious objection solely or mainly follows such religious doctrine; (vii) the motive and developments surrounding the defendant’s vanguarding of the religion; (viii) if the defendant converted to said religion, the background and reason thereof; and (ix) the defendant’s period of having that religious belief and performing actual religious activities. Repeated instances where people possessing conscientious belief identical to that of the defendant are already serving a prison sentence on the ground of conscientious objection can serve as an affirmation element for consideration.

Furthermore, in the foregoing determination process, the defendant’s overall life ought to be examined, namely, family environment, childhood, school life, and social experience. This is because a devout, firm, and sincere belief is formed through a person’s entire life, and is expressed in any form through that person’s actual life.

A prosecutor shoulders the burden of proof as regards the nonexistence of justifiable grounds given that it is a constituent element of a crime. Provided, proving the nonexistence of a genuine conscience is similar to proving the nonexistence of a fact that has not materialized in an unspecified temporal and spatial setting. Such proof of a vague fact is impossible in light of generally accepted notions, whereas it is easier to assert and prove the existence of such fact. Therefore, such circumstance needs to be considered when determining whether a prosecutor fully performed the duty to prove a case. Doing so can enable (a) the conscientious objector (defendant) to present prima facie evidence that one’s conscientious objection is of a desperate and concrete nature (i.e., going against his conscience would be a self-destruction of the value of existence as a human being) and that such conscientious belief is devout, firm, and sincere, and (b) the prosecutor to prove the nonexistence of genuine conscience by way of impeaching the credibility of the evidence presented. The prima facie evidence that the conscientious objector is required to present should be substantive to the effect that the prosecutor can base the same to prove that no justifiable ground exists.

[Concurring Opinion by Justice Lee Dong-won] Taking account of the overall circumstances ― Korea’s military size; the number of conscientious objectors on the ground of religious belief in Korea; practical likelihood of utilizing such objectors as military manpower; degree of hardship in establishing military evasion preventive measures through a fair and objective screening process and by ensuring equity between active military service and alternative military service; and characteristics of modern warfare portraying information warfare or network centric warfare ― even if permitting alternative military service of conscientious objectors, deeming that it might weaken the nation’s defense power and thus place national security at risk is difficult in the current security environment. Moreover, the Constitutional Court recently handed down a constitutional nonconformity decision as regards Article 5(1) of the Military Service Act that does not stipulate alternative military service as a type of military service, and urged the National Assembly to introduce the alternative military service system by December 31, 2019. That said, legislation is likely to be soon passed.

Against such backdrop, as was done in the past, forcing conscientious objectors to enlist in active service and imposing heavy burden to the point that they are unable to cope in light of their religious belief contradicts the principle of proportionality with respect to the restriction of fundamental rights under the Constitution. Therefore, in cases of refusing military service according to a religious belief, such refusal ought to be deemed as constituting justifiable cause as prescribed by Article 88(1) of the Military Service Act.

Provided, permitting alternative military service, as seen earlier, should be premised on that doing so would not impede the preservation of national security. Therefore, if the preservation of national security is at risk upon permitting alternative military service with regard to those objecting to perform military service on the ground of religious belief, taking the necessary measures, such as subjecting the conscientious objectors to enlist in active service, should also be deemed as permissible.

[Dissenting Opinion by Justice Kim So-young, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik] ① The reasonableness of the legal doctrine presented in Supreme Court en banc Decision 2004Do2965 Decided July 15, 2004, purporting that the majority opinion should be overruled, still holds true in light of Korea’s overall normative system and the periodical and societal context. That being said, the same legal doctrine should also be applied as is to this case.

The Supreme Court deemed that, following the materialization of the abstract concept of national defense duty under Article 88(1) of the former Military Service Act (amended by Act No. 11849, Jun. 4, 2013; hereinafter referred to as “penal provision” in the Dissenting Opinion) by the final decision of the Head of Military Manpower Administration, the penal provision of this case was legislated to prevent avoidance of military service and force the organization of military manpower, which serves as a basis to preserve national security, by punishing those obligated to serve but fail to perform military service without a “justifiable cause” even after having received a written draft notice. Accordingly, the Court determined that “justifiable cause” ought to be construed as grounds that may justify the nonperformance of the duty of military service materialized by the decision of the Head of Military Manpower Administration, namely, confined to illness or other causes that a non-performer of military service duty cannot be held liable. Provided, however, the Supreme Court held that, in exceptional cases where the right asserted by a person as the ground for refusal of the materialized duty of military service is guaranteed by the Constitution and said right is recognized as possessing a superior constitutional value that surpasses the legislative purpose of the instant penal provision, there exists a justifiable reason for that person’s refusal of military service. At the same time, the Court deemed that the freedom of conscience formation by passive omission, as a relative freedom, is not a value superior to that of the military service duty, which is a constitutionally-protected legal interest to preserve the human dignity and value of all citizens. On that premise, the Supreme Court determined that: (a) albeit restrictingthefreedomofconscience pursuant to Article 37(2) of the Constitution to ensure the constitutionally-protected legal interest with respect to the duty of military service, this is a legitimate restriction under the Constitution; (b) even if applying the instant penal provision against conscientious objectors, doing so cannot be viewed as an unlawful infringement of the freedom of conscience; and (c) refusing to enlist in active service on the ground that it goes against the freedom of conscience cannot be deemed as a justifiable reason.

② Postponement of, or exemption from, enlistment of Korean male citizens who are obligated to serve in the military should not be permissible as a matter of principle unless the grounds for exemption are clearly stipulated in the Military Service Act. The legislative purpose of the Military Service Act and the basic purport of the conscription system is to enforce the performance of a specified duty of military service (i.e., enlistment), and the same should be carried through as a matter of course when interpreting “justifiable cause” under the instant penal provision.

Causes such as military exemption are attributable to the fact that the performance of military service, namely, engaging in combat, undergoing military training, and living together in tight quarters, accompanies physical as well as psychological restraint and sacrifice. Thus, even though a ground associated with the ability to cope with performing such military service duty is considered as a “justifiable cause” as mentioned above, it is equivalent to the grounds for military exemption as stipulated in the Military Service Act, i.e., mental and physical disability, criminal punishment, and North Korean defector. Hence, it is tenable to deem that the grounds for exemption are limited by factoring objective and value-neutral circumstances associated with the ability to perform military service. Doing so accords with the purport of Article 3 of the Military Service Act that strictly restricts military exemption. Subjective circumstances including an individual belief, value, view, etc. regarding military service, such as conscientious objection on the ground of religious belief as stated in the Majority Opinion, are excluded from the foregoing exemption grounds irrespective of the degree or continuity of said belief. In view of the aforementioned legislative purpose of the Military Service Act, the principle of equal sharing of military service burden, special provisions on military service based on the universal conscription system and the compulsory draft system, and the purport of the Military Service Act that stipulates the ability to cope with performing military service, even if comparing the duty of military service with other constitutional duties such as tax payment, a more rigid standard ought to apply when determining whether capacity or excessive burden of performing military service may fall under grounds for military exemption.

Article 2(1) of the Military Service Act defines the term “enlistment in the military” as a person obliged to perform military service enters a military through conscription (Subparag. 3) and the term “conscription” as a State’s imposition of a duty to perform active service on any person liable for military service (Subparag. 1). Article 61(1) of the same Act provides for “postponement of enlistment” by stipulating that, for any person who has received or is to receive a written draft notice is unable to enlist on the required date due to an illness, mental or physical disorder, disaster, etc., the date may be postponed. Article 129(2) of the Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 24890, Dec. 4, 2013; hereinafter referred to as “Enforcement Decree” in the Dissenting Opinion) provides that the date for fulfillment of military duty may be postponed by up to two years. Also, based on the instant penal provision, a military service obligor should enlist on the designated date as a matter of principle; however, if the designated date of enlistment lapses due to “natural disaster, traffic paralysis, delay in the service of notice, or other extenuating circumstances,” that person may enlist within three days from the date of enlistment (Article 24(1) of the Enforcement Decree). In full view of the meaning of enlistment and conscription under the Military Service Act and its Enforcement Decree, the purpose of the enlistment postponement system and the postponed enlistment system, and grounds for postponement, etc., “justifiable cause” under the instant penal provision with respect to enlistment in active service should be a reason suffice to justify not being able to immediately fulfill the duty of assembling on the designated date and at the designated place upon having received the written draft notice. That is, it shall be confined to grounds acknowledged as requirements to temporarily postpone or delay enlistment according to the Military Service Act, i.e., reasons that cannot be attributable to an individual such as illness and disaster.

The duty of national defense refers to a duty imposed on citizens for the purpose of maintaining a State’s independence and preserving the territory against direct or indirect invasions by foreign enemy forces. The Constitution may be construed as demanding the responsibility of national security and national defense based on the universal conscription system and the principle of equal sharing of military service burden, namely, allocating the burden of national defense duty to all sovereign citizens necessary to ensure the safety and peace of a community state. In light of our nation’s security environment, etc., such demand is a strong and absolute social demand incomparable to that of any other society.

The duty of military service is imposed according to the content and procedure stipulated in the Military Service Act that was legislated based on the provision on the duty of national defense under the Constitution. The act of conscientiously objecting the performance of such duty, which requires participation in military drills or training, grounded on the fact that it goes against one’s religious belief formed through self-decision cannot be justified on the basis that said act pertains to “maintaining conscience” or “freedom of conscience formation by passive omission.” Furthermore, notwithstanding that criminal punishment based on the instant penal provision is imposed against conscientious objectors as an inevitable means to realize practicality as to equally distributing the burden of, and performing, military service under the Military Service Act, such circumstance alone is insufficient to deem that a State’s enforcement of an individual’s performance of military duty going against the individual’s inner conscience will neither result in the destruction of the value of existence as a human being or the unlawful coercion of opting the individual to endure criminal punishment to maintain conscience, nor excessively restrict fundamental rights and/or infringe or undermine the inherent substance of the same.

③ With respect to conscientious objection, “genuine conscience” that warrants protection should be an absolute freedom of conscience formed and decided within the inner realm prior to being externally expressed when forced to perform the duty of military service. However, the meaning of “genuine conscience” can only be logically determined based on the subjective perspective of the subject thereto. “Genuine conscience” is not often objectively revealed; moreover, its existence is not easily shared to a third party through the presentation of objective evidence. Therefore, following the Majority Opinion’s conclusion, even if “genuine conscience” with respect to refusal of military service may be deemed as constituting “justifiable cause” as prescribed by the instant penal provision, such conscience only remains in the inner realm, and thus, objective reenactment or proof of its existence or absence as well as scientific and rational disproof or denunciation of such assertion per se is extremely difficult or nearly impossible. That being said, “genuine conscience” is not an appropriate subject for objective proof according to the empirical and logical rules established in the criminal justice system and based on rationale.

In full view of the inherent issues relating to the criteria for examining and the procedural method for determining the existence or absence of genuine conscience with respect to military service objection, it would be reasonable to deem that such criteria and method is insufficient and incomplete to verify a conscientious objector’s “genuine conscience” to the extent similar to the discovery of substantive truth aspired by the Criminal Procedure Act. Therefore, the foregoing criteria and method can only be regarded as compromising and contingent that comprehensively reflects policy-based considerations, namely, normative and regulatory acceptance of conscientious objection, perception and reaction among societal members as to the degree of acceptance, shortage of military manpower and likelihood of alternative military service that are to occur from the direct and indirect exemption of military duty of conscientious objectors, and adverse impact on the morale of the army in general and on national security and national defense. Examining and determining “genuine conscience” associated with military service refusal without a special standard or method in place is a difficult task to fulfill by the judiciary whose mission is to discover substantive truth.

④ Setting the particular details of alternative military service, equivalent to that of compulsory military service, and the procedure for performing such alternative military service is extremely complicated. Determination through weighing and balancing of the burden of compulsory military service and the burden of alternative military service from a general and abstract level by the National Assembly is insufficient. Coordination of various positions among interested parties based on public feedback as well as extensive research and review to ensure practicality and fairness are required. If alternative military service were to be implemented without undergoing sufficient procedural discourse, this would naturally open the door for criticism that it will distort social unification and cause other conflicts and confrontations. It would not be a simple matter that can be resolved on the premise that there exists a mature level of embracement and tolerance within our society.

⑤ As regards the meaning of “justifiable cause” under the instant penal provision, the legal doctrine established in the Supreme Court’s previous en banc Decision ought to remain intact as is. Such legal doctrine does not completely accord with the legal reasoning on “justifiable cause” as expressed by the Dissenting Justices. Moreover, no obvious normative and practical changes are observed to deem that the established legal doctrine should be overruled to broaden the scope of “justifiable cause” as mentioned above.

Nevertheless, the Majority’s position to overrule the previous legal doctrine is to bring about the following concerns: (i) distorting legal stability, which is a pivotal judicial value; (ii) undermining the legislative purpose of the Military Service Act by granting excessive preferential treatment with respect to performing the duty of military service; and (iii) causing conflict and confusion as it considerably deviates from the normative demand for equal sharing of the burden of military service and the public’s expectation. Moreover, the judiciary will not be immune to misconception and criticism that it is de facto exercising legislative power that exceeds the bounds of judicial authority. Albeit there exists somewhat of an unreasonable or harsh aspect of not applying exceptions of the Military Service Act against certain people obliged to perform military service, such as conscientious objectors, this matter ought to be addressed through the National Assembly’s legislative process rather than be resolved by courts through construction of the provisions of the Military Service Act going against the purpose and function of the same. This conclusion, as repeatedly emphasized in the foregoing, is based on the fundamental principle and responsibility that should be followed as a matter of course in the process of a judicial officer’s statutory construction and exercise of judicial authority.

[2] In a case where the Defendant, a Jehovah’s Witness, was indicted on the charge of violating the Military Service Act when he did not enlist due to a religious reason even after the lapse of three days from the enlistment date upon receiving a notice of enlistment in active service under the name of the head of a regional military manpower office, the Court held that: (a) the Defendant, influenced by his father who is a Jehovah’s Witness, was baptized at the age of 13 and had been living his life based on that religious belief; (b) the Defendant, who initially received the written draft notice roughly 10 years ago, is refusing to enlist in the military to this day on religious grounds; (c) the Defendant’s father as well as his younger brother had previously served a prison term for violating the Military Service Act after having objected to military service on the same grounds; (d) even though the Defendant is married and raising a little girl and a baby boy, he continues to object military service due to religious belief even at the risk of facing criminal punishment; (e) in light of such overall circumstances, the Defendant’s act of refusal to enlist was based on his genuine conscience, thus leaving room to deem as constituting “justifiable cause” under Article 88(1) of the former Military Service Act (amended by Act No. 11849, Jun. 4, 2013); (f) nevertheless, the lower court, without examining whether such conscientious objection fell under “justifiable cause” of the foregoing Article, convicted the Defendant by reasoning that the same does not constitute justifiable grounds; and (g) in so doing, it erred by misapprehending the legal doctrine on the construction of justifiable cause under Article 88(1).

【Reference Provisions】[1] Articles 5(2), 10, 19, 20, 37(2), and 39(1) of the Constitution of the Republic of Korea; Article 1, Article 2(1)1 and 3, Articles 3, 5(1), 8, 11, 12, 14, 62, 63, 64, 65, 71, 72, and 88(1) of the Military Service Act; Articles 3, 5(1), 12(1)3, 14(1), 61(1), 64(1), 65(1), 71, 72, and 88(1)1 of the former Military Service Act (Amended by Act No. 11849, Jun. 4, 2013); Article 136(1) Subparag. 2(a) of the Enforcement Decree of the Military Service Act; Articles 24(1), 129(2), and 136(1) Subparag. 2(a) of the former Enforcement Decree of the Military Service Act (Amended by Presidential Decree No. 24890, Dec. 4, 2013); Articles 8 and 18 of the International Covenant on Civil and Political Rights; Article 308 of the Criminal Procedure Act / [2] Articles 19 and 39(1) of the Constitution of the Republic of Korea; Article 88(1)1 of the former Military Service Act (Amended by Act No. 11849, Jun. 4, 2013; Article 325 of the Criminal Procedure Act

Article 5 of the Constitution of the Republic of Korea

(2) The Armed Forces shall be charged with the sacred mission of national security and the defense of the land and their political neutrality shall be maintained.

Article 10 of the Constitution of the Republic of Korea

All citizens shall be assured of human worth and dignity and have the right to pursuit of happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.

Article 19 of the Constitution of the Republic of Korea

All citizens shall enjoy freedom of conscience.

Article 20 of the Constitution of the Republic of Korea

(1) All citizens shall enjoy freedom of religion.

(2) No state religion shall be recognized, and religion and state shall be separated.

Article 37 of the Constitution of the Republic of Korea

(2) The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.

Article 39 of the Constitution of the Republic of Korea

(1) All citizens shall have the duty of national defense under the conditions as prescribed by Act.

Article 1 of the Military Service Act (Purpose)

The purpose of this Act is to provide for matters concerning the mandatory military service by the citizens of the Republic of Korea.

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 2 of the Military Service Act (Definitions, etc.)

(1) The terms used in this Act shall be defined as follows: <Amended by Act No. 9955, Jan. 25, 2010; Act No. 10704, May 24, 2011; Act No. 11530, Dec. 11, 2012; Act No. 11849, Jun. 4, 2013; Act No. 13425, Jul. 24, 2015; Act No. 14170&14183, May 29, 2016>

1. The term “conscription” means that the State imposes a duty to perform active service on any person liable for military service to serve in the military;

3. The term “enlistment in the military” means that a person liable for military service enters a military unit through conscription, call-up, or volunteering[.]

Article 3 of the Military Service Act (Mandatory Military Service)

(1) Every masculine gender of the Republic of Korea shall faithfully perform mandatory military service, as prescribed by the Constitution of the Republic of Korea and this Act. A feminine gender may perform only active service or reserve service through volunteering. <Amended by Act No. 10703, May 24, 2011; Act No. 10704, May 24, 2011>

(2) Unless otherwise expressly provided for in this Act, no special exception to mandatory military service shall be prescribed.

(3) Any person wishing to engage in mandatory military service or voluntary military service under paragraph (1) shall be protected against discrimination on the grounds of race, skin color, etc.

(4) No person liable for military service but sentenced to imprisonment with or without labor for at least six years is allowed to perform military service, and his name shall be expunged from the military register. <Amended by Act No. 11849, Jun. 4, 2013>

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 5 of the Military Service Act (Categories of Military Service)

(1) Military service shall be classified as follows: <Amended by Act No. 11849, Jun. 4, 2013; Act No. 14183, May 29, 2016>

1. Active duty service: Any of the following persons:

(a) Men enlisted in the military through conscription or volunteering;

(b) Officers, warrant officers, noncommissioned officers, and officer cadets appointed or selected to serve on active duty as prescribed by this Act or the Military Personnel Management Act;

2. Reserve service: Any of the following persons:

(a) Persons who have completed active duty service;

(b) Other persons transferred to reserve service pursuant to this Act;

3. Supplementary service: Any of the following persons:

(a) Persons found to be capable of serving on active duty as a result of a draft physical examination, but not determined as those subject to enlistment in the military as active duty soldiers due to the supply and demand of the armed forces;

(b) Any of the following persons, who are performing or have completed their service or mandatory service:

(i) Social work personnel;

(ii) Deleted; <by Act No. 13778, Jan. 19, 2016>

(iii) Art and sports personnel;

(iv) Public health doctors;

(v) Doctors exclusively in charge of the draft physical examination;

(vi) Deleted; <by Act No. 13778, Jan. 19, 2016>

(vii) Public-service advocates;

(viii) Public quarantine veterinarians;

(ix) Expert research personnel;

(x) Industrial technical personnel;

4. Preliminary military service: Persons liable for military service, but not in active duty service, reserve service, supplementary service, or wartime labor service;

5. Wartime labor service: Any of the following persons:

(a) Persons determined to be incapable of performing active duty service or supplementary service as a result of a draft physical examination or a physical examination, but to be capable of engaging in military support affairs through a call-up for wartime labor;

(b) Other persons assigned to the wartime labor service pursuant to this Act.

Article 8 of the Military Service Act (Enlistment for Preliminary Military Service)

Every male of the Republic of Korea shall be enlisted for the preliminary military service when he attains the age of 18 years. <Amended by Act No. 10704, May 24, 2011; Act No. 14183, May 29, 2016>

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 11 of the Military Service Act (Draft Physical Examination)

(1) Every person liable for military service shall undergo a draft physical examination at the time and place designated by the director of the regional military manpower office in the year when he turns 19 years old to determine whether he is capable of performing military service: Provided, That in consideration of the manpower demand in the military and the supply and demand of draftee resources for military service, some of the 19-year-old persons may be permitted to undergo a draft physical examination when they turn 20 years old. <Amended by Act No. 14183, May 29, 2016>

(2) A person who is obliged to undergo a draft physical examination and fails to do so, or a person who had his draft physical examination postponed and for whom the cause of such postponement ceases to exist, shall undergo the draft physical examination in the relevant year or the following year. <Amended by Act No. 14183, May 29, 2016>

(3) The draft physical examination shall be divided into a physical examination and a psychological test. <Amended by Act No.1 4183, May 29, 2016>

(4) In the physical examination referred to in paragraph (3), all parts of the body shall be examined through a surgical test, internal examination, etc., and if necessary, a clinical pathology test, radiographing, etc. may be conducted. In such cases, the examination may be entrusted to a medical institution under the Medical Service Act, as prescribed by Presidential Decree, if it is difficult to ascertain the degree of illness or mental or physical disability.

(5) In the even that any person who has failed to undergo a draft physical examination undergoes a physical examination for volunteers for active duty service conducted by the Commissioner of the Military Manpower Administration in accordance with Article 20(1) (hereinafter referred to as “physical examination for volunteers for active duty service”), he shall be deemed to have undergone a draft physical examination under paragraph (1): Provided, That in cases of a person aged 18, the same shall apply only to cases where his physical grade is judged Grade V or VI provided for in Article 12(1). <Amended by Act No. 14183, May 29, 2016>

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 12 of the Military Service Act (Determination of Physical Grades)

(1) Doctors exclusively in charge of the draft physical examination, doctors specializing in the draft physical examination, or military surgeons under Article 12-2 who have performed a physical examination (including physical examination for volunteers for active duty service) shall determine physical grades as follows: <Amended by Act No. 14183, May 29, 2016>

1. Those whose physical and psychological constitution is healthy enough to perform active or supplementary service shall be determined at Grade I, II, III or IV, according to their physical and psychological condition;

2. Those incapable of entering active or supplementary service, but capable of entering the wartime labor service, shall be determined at Grade V;

3. Those incapable of performing military service due to any disease or mental or physical incompetence shall be determined at Grade VI;

4. Those unable to be graded according to subparagraphs 1 through 3, due to any disease or mental or physical incompetence, shall be determined at Grade VII.

(2) A deliberative council on physical grades may be established in the Military Manpower Administration, regional military manpower offices, and an institution accountable for the affairs related to determination of physical grades under the control of the Military Manpower Administration to deliberate on the accuracy of determination of physical grades under paragraph (1). <Amended by Act No. 14183, May 29, 2016>

(3) For persons determined at Grade VII (excluding any person who is aged 18 and has undergone a physical examination for volunteers for active duty service) under paragraph (1)4, the director of each regional military manpower office shall have them undergo a follow-up physical examination, taking into consideration their recovery period. In such cases, the period allowable for such follow-up physical examination shall be within two years from the date when he is determined at Grade VII as a result of the physical examination. <Amended by Act No. 10704, May 24, 2011>

(4) The criteria for determining physical grades under paragraph (1) shall be prescribed by Ordinance of the Ministry of National Defense. <Amended by Act No. 14183, May 29, 2016>

(5) Matters necessary for the organization and operation of the deliberative council on physical grades under paragraph (2) shall be determined by the Commissioner of the Military Manpower Administration. <Amended by Act No. 14183, May 29 ,2016>

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 14 of the Military Service Act (Disposition for Military Service, etc.)

(1) The director of each regional military manpower office shall issue any of the following military service dispositions on persons who have undergone a draft physical examination (including those who have undergone a physical examination at a military hospital) or a physical examination for volunteers for active duty service. In such cases, for persons who have undergone a physical examination for volunteers for active duty service and attained 18 years of age, a disposition for military service shall be issued to them only when their physical grade is determined at Grade V or VI: <Amended by Act No. 14183, May 29, 2016>

1. Persons falling under any of Physical Grades I through IV: To be enlisted for active duty service, supplementary service, or the wartime labor service, based on their qualifications, such as educational background and age;

2. Persons falling under any of Physical Grade V: To be enlisted for the wartime labor service;

3. Persons falling under any of Physical Grade VI: To be exempted from military service;

4. Persons falling under any of Physical Grade VII: To undergo a follow-up physical examination.

(2) Those determined at Physical Grade VII as a result of the follow-up physical examination conducted under Article 12(3) after having been given a disposition for a follow-up physical examination as prescribed in paragraph (1)4 shall be assigned to the wartime labor service, as prescribed by Presidential Decree: Provided, That any person who falls under the wartime labor service under Article 65(1)2 or 3 may enlist for the wartime labor service without a follow-up physical examination. <Amended by Act No. 13778, Jan. 19, 2016; Act No. 14183, May 29, 2016>

(3) The criteria for assigning any person falling under paragraph (1)1 to be enlisted for active or supplementary service shall be determined by the Commissioner of the Military Manpower Administration.

(4) Where it is necessary due to any change in the demand and supply of military service resources, enlistment plan, etc., the Commissioner of the Military Manpower Administration may change the assignment of the persons to be enlisted for active duty service, among those assigned as prescribed in paragraph (1)1, to supplementary service.

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 62 of the Military Service Act (Transfer, etc. to Wartime Labor Service due to Family Reasons)

(1) A person to be enlisted for active duty service may be transferred to the wartime labor service upon his request, if he falls under subparagraph 1, or to supplementary service upon his request, if he falls under subparagraph 2: <Amended by Act No. 14183, May 29, 2016>

1. A person who is the sole provider of his family’s livelihood;

2. Any one person whose parent, spouse, or sibling was killed in action, died at his duty, or has disabilities caused by a war wound or a wound in the course of his duty.

(2) Any person in supplementary service falling under paragraph (1)1 may be transferred to the wartime labor service upon his request. <Amended by Act No. 14183, May 29, 2016>

(3) Matters necessary for the scope of the family, the criteria for determination of the difficulty in maintaining a household, the timing for application, the scope of those killed in action, those [who] died at their duties, and those with disabilities caused by a war wound or a wound in the course of duty, etc. under paragraph (1) shall be prescribed by Presidential Decree.

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 63 of the Military Service Act (Discharge, etc. from Military Service due to Family Reasons)

(1) An active duty serviceman falling under Article 62(1)1 (including those in active duty service pursuant to Article 21 or 25; hereafter the same shall apply in this Article) may be transferred to the wartime labor service upon his request. <Amended by Act No. 14170 & 14183, May 29, 2016>

(2) Any person who is in active duty service or serves as a member of the social work personnel, falling under Article 62(1)2 may have, upon his request, his service period shortened into six months, and any person who has completed his service period may be transferred to supplementary service, or released from the call. <Amended by Act No. 11849, Jun. 4, 2013>

(3) Any person who is in service as a serviceman due to a call for military force mobilization or a call for wartime labor (including those who have received a written notice of call-up), falling under Article 62(1)1 may be transferred to the wartime labor service upon his request, or may have the call cancelled or postponed. <Amended by Act No. 14184, May 29, 2016>

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 64 of the Military Service Act (Exemption of Persons in Preliminary Military Service from Military Service, etc.)

(1) The director of a regional military manpower office may exempt any person in the preliminary military service and falling under subparagraph 1 (limited to persons whose physical grade falls under Grade VI) or 2 from military service without a draft physical examination upon his request, and may transfer any person whose physical grade falls under Grade V among those who fall under subparagraph 1 or any person falling under subparagraph 3 to the wartime labor service without a draft physical examination upon his request: Provided, That when a person exempted from military service or transferred to the wartime labor service under subparagraph 1 is subject to the adjustment of his disability rating under Article 2 of the Act on Welfare of Persons with Disabilities or to the return of his registration certificate under Article 32 of the same Act due to a change in the conditions of his disability before he attains the age of 19, the director of the regional military manpower office may order him to undergo a draft physical examination after cancelling the disposition of such exemption or transfer: <Amended by Act No. 9946, Jan. 25, 2010; Act No. 12560, May 9, 2014; Act No. 14183, May 29, 2016>

1. A person who is incapable of providing military service due to an overall deformity, disease, mental or physical disorder, etc.;

2. A person who has immigrated from the north of the Military Demarcation Line;

3. A person who falls under a ground prescribed in Article 65(1)2 or 3.

(2) Matters necessary for the scope of a person referred to in paragraph (1) and the procedures for filing an application, etc. shall be prescribed by Presidential Decree. <Amended by Act No. 9946, Jan. 25, 2010>

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 65 of the Military Service Act (Change, etc. of Assignment to Military Service)

(1) Any person in active duty service (including those in active duty service pursuant to Article 21 or 25, and those to be enlisted for active duty service), in onboard ship reserve service, or in supplementary service, falling under subparagraph 1, may be transferred to supplementary service or the wartime labor service, or exempted from military service, after a physical examination, and any person who falls under subparagraph 2 or 3 may be transferred to supplementary service or the wartime labor service: <Amended by Act No. 9946, Jan. 25, 2010; Act No. 13778, Jan. 19, 2016; Act No. 14170 & 14183, May 29, 2016>

1. A person who is incapable of performing military service due to a war wound or a wound in the course of performing a duty, disease, or mental or physical disorder;

2. A prisoner who is prescribed by Presidential Decree;

3. A person who is recognized to be unfit for military service due to naturalization pursuant to the Nationality Act or other grounds prescribed by Presidential Decree.

(2) Where a person in active duty service (including those who perform military service as prescribed in Article 21 or 25), onboard ship reserve service, or supplementary service emigrates with his family to a foreign country, he may be transferred to supplementary service, or his call-up to social work personnel service may be discharged, as prescribed by Presidential Decree: <Amended by Act No. 9946, Jan. 25, 2010; Act No. 11849, Jun. 4, 2013; Act No. 14179, May 29, 2016>

(3) Where a person in active duty service (including those who perform military service as prescribed in Article 25) wishes to perform full-time reserve service due to child-birth, he may be transferred to the reserve service, as prescribed by Presidential Decree. <Newly inserted by Act No. 10704, May 24, 2011; Act No. 14170, May 29, 2016>

(4) Any person in reserve or the wartime labor service who is incapable of performing military service due to a reason referred to in paragraph (1)1 may, upon his request, be transferred to the wartime labor service or exempted from military service after a physical examination. <Amended by Act No. 14183, May 29, 2016>

(5) Any serviceman in reserve service who is serving time in prison may be transferred to the wartime labor service, as prescribed by Presidential Decree. <Amended by Act No. 14183, May 29, 2016>

(6) Where a person transferred to supplementary service or for whom a call-up to social work personnel service has been released on the ground that he plans to emigrate to a foreign country with his family as prescribed in paragraph (2) falls under a reason prescribed by Presidential Decree, such as that he returns to the Republic of Korea in order to permanently reside in the Republic of Korea, such disposition may be revoked and the duty of military service may be imposed. <Amended by Act No. 11849, Jun. 4, 2013>

(7) The director of each regional military manpower office shall issue a call for military education as prescribed in Article 55 to the crew of ships navigating to or from foreign countries who are to be called up as social work personnel, but whose call-up to social work personnel service is postponed for at least three years from the day prescribed by Presidential Decree by reasons as prescribed in Article 60(1)1, and when they have completed the call for military education, they shall be deemed to have completed their service as social work personnel. <Amended by Act No. 11849, Jun. 4, 2013; Act No. 14183, May 29, 2016>

(8) It a person falling under any of the following subparagraphs wants to perform active service or serve as a member of the social work personnel, the director of the competent regional military manpower office may revoke the relevant disposition and change his assignment to military service, as prescribed by Presidential Decree: <Amended by Act No. 14611, Mar. 21, 2017>

1. A person in supplementary service (limited to both social work personnel service and supplementary service to be called to social work personnel service) or wartime labor service whose disease or mental or physical disorder is treated or whose educational background is changed;

2. A person exempted from military service pursuant to Article 64(1)2.

(9) Where the number of persons to be called to social work personnel service is larger than that of persons to be assigned to the social work personnel under Article 27, the director of the regional military manpower office may transfer some of the persons to be called to the wartime labor service according to standards prescribed by Presidential Decree, taking into consideration their academic career and the year in which they are transferred to supplementary service. <Amended by Act No. 11849, Jun. 4, 2013; Act No. 14184, May 29, 2016>

(10) If a person in supplementary service to be called to social work personnel service has a change in his educational background (including educational background recognized as equivalent to graduation from a school pursuant to Article 2 of the Elementary and Secondary Education Act) within the period prescribed by Presidential Decree, the director of the competent regional military manpower office may change his assignment to military service in conformity with the criteria for military service assignment of the year in which such change occurs. <Newly inserted by Act No. 14611, Mar. 21, 2017>

(11) Notwithstanding paragraph (1) or (4), with regard to any person who is recognized to be unfit for continuing the military service due to a disease which makes it impracticable to determine a physical grade or due to mental disorder (limited to active duty servicemen, persons performing the military service after secondment, persons in the full-time reserve service or social work personnel) or any person whose disability is clearly distinguishable, the disposition of military service may be changed without a physical examination. In such cases, matters necessary for standard, methods and procedures for change of a disposition shall be prescribed by Presidential Decree. <Amended by Act No. 14183, May 29, 2016>

(12) The scope of families referred to in paragraph (2) shall be prescribed by Presidential Decree.

(13) For a person enlisted for active duty service following any change in his assignment to military service pursuant to paragraph (8) while in service as a member of the social work personnel, the term of service may be shortened in accordance with the criteria prescribed by Presidential decree. <Newly inserted by Act No. 14611, Mar. 21, 2017>

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 71 of the Military Service Act (Reduction of and Exemption from Liability for Enlistment, etc.)

(1) The liability for a draft physical examination, follow-up draft physical examination, physical examination for confirmation, enlistment for active duty service, or call-up to social work personnel service shall expire as of the time the relevant person attains 36 years of age, and the exempted persons shall be transferred to the wartime labor service: Provided, That any of the following persons shall be exempted as of the time they attain 38 years of age: <Amended by Act No. 9946, Jan. 25, 2010; Act No. 10704, May 24, 2011; Act No. 11849, Jun. 4, 2013; Act No. 12906, Dec. 30, 2013; Act No. 13778, Jan. 19, 2016; Act No. 14183, May 29, 2016; Act No. 14611, Mar. 21, 2017>

1. Persons who evaded or currently evade a draft physical examination, follow-up draft physical examination, physical examination for confirmation, enlistment in active service, or call-up to social work personnel service without justifiable grounds, or whose whereabouts were or are unknown;

1-2. Persons whose assignment to onboard ship reserve service is revoked pursuant to Article 23-4(1);

2. Persons whose assignment to art and sports personnel is revoked pursuant to Article 33-10(4)3 through 6;

3. Persons whose assignment to public health doctors, doctors exclusively in charge of the draft physical examination, public-service advocates or public quarantine veterinarians is cancelled pursuant to Article 3592), 35-2(2) or 35-3(2);

4. Persons whose assignment to expert research personnel service or industrial technical personnel service is cancelled under Article 41(1);

5. Persons who are expunged from the military register of military surgeon candidates, judicial officer candidates, military chaplain candidates, or veterinary officer candidates under Article 58(3);

6. Persons whose draft physical examination, follow-up draft physical examination, enlistment, etc. is postponed for any reason provided for in Article 60(1)2;

7. Persons who are transferred to supplementary service or who are discharged from a call-up to social work personnel service on any ground provided for in Article 65(2);

8. Persons for whom a disposition taken for transfer to supplementary service or for discharge from a call-up to social work personnel service is revoked pursuant to Article 65(6);

9. Persons who left the Republic of Korea or are staying in a foreign country, without obtaining permission as prescribed in Article 70(1) or (3), or who fail to return to the Republic of Korea within the permitted period without justifiable grounds;

10. Persons whose exemption from military service or assignment to the wartime labor service or supplementary service was made in a false or other dishonest manner, and thus cancelled;

11. Persons who acquired Korean nationality after obtaining permission for restoring their nationality pursuant to Article 9 of the Nationality Act: Provided, That the same shall not apply to those who acquired Korean nationality by naturalization;

12. Persons who have filed for administrative litigation against the Commissioner of the Military Manpower Administration or the director of a regional military manpower office (including the head of a military manpower branch office) after reaching the age of 29 and who have been issued a final ruling that they lost the case.

(2) Any person who is subject to enlistment for active duty service under the proviso to paragraph (1) and is 36 or more years of age may be allowed to serve as a member of the social work personnel. <Amended by Act No. 9946, Jan. 25, 2010; Act No. 11849, Jun. 4, 2013>

(3) Paragraph (1) shall not apply to any person whose assignment is cancelled on grounds falling under Article 33-10(4) 1 or 2. <Newly inserted by Act No. 11849, Jun. 4, 2013; Act No. 12906, Dec. 30, 2014; Act No. 13778, Jan. 19, 2016>

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 72 of the Military Service Act (Completion of Mandatory Military Service)

(1) The duty of military service of soldiers enlisted for active, reserve, and supplementary services, and of those in the wartime labor service, shall be completed by the time they attain 40 years old, and that of officers, warrant officers and noncommissioned officers in reserve and supplementary services, in the year they attain the age limit of their ranks as prescribed by the Military Personnel Management Act. <Amended by Act No. 14183, May 29, 2016>

(2) When the term of military service referred to in paragraph (1) is completed, the officers, warrant officers, and noncommissioned officers shall retire from the service, and the enlisted men shall be exempted from military service.

[This Article wholly amended by Act No. 9754, Jun. 9, 2009]

Article 88 of the Military Service Act (Evasion, etc. of Enlistment)

(1) Any person who has received a notice of enlistment for active duty service or a notice of call (including a notice of enlistment through recruitment) and fails to enlist in the military or to comply with the call, even after the expiration of the following report period from the date of enlistment or call without justifiable grounds, shall be punished by imprisonment with labor for not more than three years: Provided, That where a person who has received a notice of check-up to provide a call for wartime labor under Article 53(2) is absent from the check-up at the designated date and time without justifiable grounds, he shall be punished by imprisonment with labor for not more than six months or by a fine not exceeding five million won, or by misdemeanor imprisonment: <Amended by Act No. 11849, Jun. 4, 2013; Act No. 12560, May 9, 2014; Act No. 14183, May 29, 2016>

1. Three days for enlistment for active duty service;

2. Three days for a call-up to social work personnel service;

3. Three days for a call for military education;

4. Two days for a call for military force mobilization and a call for wartime labor.

Article 24 of the former Enforcement Decree of the Military Service Act (Report, etc. of Postponed Enlistment)

(1) Persons subject to enlistment in active duty service who are unable to enlist on the date of enlistment due to a natural disaster, traffic paralysis, delay in the service of notice, or other extenuating circumstances, may enlist within three days from the date of enlistment. <Amended by Presidential Decree No. 27620, Nov. 29, 2016>

Article 129 of the former Enforcement Decree of the Military Service Act (Postponement of Date of Enlistment, etc.)

(2) Persons who fall under any subparagraph of paragraph (1) may postpone the date for fulfillment of their military duty by up to two years in total. <Amended by Presidential Decree No. 22286, Jul. 21, 2010; Presidential Decree No. 24238, Dec. 20, 2012; Presidential Decree No. 27620, Nov. 29, 2016>

Article 136 of the former Enforcement Decree of the Military Service Act (Disposition for Military Service for Convicts, etc.)

(1) Persons subject to enlistment in active duty service, onboard ship reserve personnel, or supplementary personnel (excluding commissioned officers, warrant officers, or noncommissioned officers in supplementary services, and persons who have completed service as supplementary service personnel) who may be transferred to supplementary service or wartime labor service in accordance with Article 65(1)2 and 3 of the Act are as follows. In such cases, when the sentence of punishment is commuted to an indeterminate sentence, prescribing a short-term sentence and a long-term sentence, the long-term sentence shall be applied: <Amended by Presidential Decree No. 22286, Jul. 21, 2010; Presidential Decree No. 23305, Nov. 23, 2011; Presidential Decree No. 24018, Aug. 3, 2012; Presidential Decree No. 24238, Dec. 20, 2012; Presidential Decree No. 27220, Jun. 14, 2016; Presidential Decree No. 27620, Nov. 29, 2016>

2. Any of the following persons shall be subject to enlistment in wartime labor service:

(a) A person sentenced to imprisonment with or without labor for at least one year and six months: Provided, That any person who injures his body or is sentenced to imprisonment with labor due to any deceitful act with the intention of evading military service or having military service reduced under Article 86 of the Act shall be exempted[.]

Article 8 of the International Covenant on Civil and Political Rights

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3. (a) No one shall be required to perform forced or compulsory labour, (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court. (c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include: (i) Any work or service, not referred to in sub-paragraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations.

Article 18 of the International Covenant on Civil and Political Rights

1. Everyone shall have the right to freedom of thought, con science and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 308 of the Criminal Procedure Act (Principle of Free Evaluation of Evidence)

The probative value of evidence shall be left to the discretion of judges.

Article 325 of the Criminal Procedure Act (Judgment of Not Guilty)

A finding “not guilty” shall be pronounced by judgment if the facts against the criminal defendant do not constitute an offense or if the evidence of the criminal act is insufficient.

【Reference Cases】[1] Supreme Court en banc Decision 2004Do2965 decided Jul. 15, 2004 (Gong2004Ha, 1396) (overruled); Supreme Court Decision 2007Do7941 decided Dec. 27, 2007 (Gong2008Sang, 183) (overruled); Supreme Court Decision 2006Do6445 decided Jun. 12, 2008 (Gong2008Ha, 998); Constitutional Court en banc Decision 2005Hun-Ma739 decided Nov. 30, 2006 (Hun-Gong122, 1405); Constitutional Court en banc Decision 2011Hun-Ba379, 383, 2012Hun-
Ba15, 32, 86, 129, 181, 182, 193, 227, 228, 250, 271, 281, 282, 283, 287, 324, 2013Hun-Ba273, 2015Hun-Ba73, 2016Hun-Ba360, 2017Hun-Ba225, 2012Hun-Ga17, 2013Hun-Ga5, 23, 27, 2014
Hun-Ga8, 2015Hun-Ga5 decided Jun. 28, 2018 (Hun-Gong261, 1017)

【Defendant】Defendant

【Appellant】Defendant

【Defense Counsel】Attorneys Oh Doo-jin et al.

【Judgment of the court below】Changwon District Court Decision 2014No466 decided June 23, 2016

【Disposition】The lower judgment is reversed, and the case is remanded to the Panel Division of Changwon District Court.

【Reasoning】The grounds of appeal are examined.

1. Procedural history and key issues

The gist of the charged facts in this case is that, the Defendant, even after receiving a notice of enlistment for active duty service under the name of the Head of Gyeongnam Regional Military Manpower Administration around July 18, 2013 stating “You are required to enlist for active duty service in the 39th Infantry Division by September 24, 2013,” failed to enlist three days past the required date.

The Defendant, a Jehovah’s Witness, did not enlist in active service on the ground of religious belief. To this, the prosecution indicted the Defendant by applying Article 88(1) of the Military Service Act. The main text of Article 88(1) stipulates, “Any person who has received a notice of enlistment for active duty service or a notice of call (including a notice of enlistment through recruitment) and fails to enlist in the military or to comply with the call, even after the expiration of the following report period from the date of enlistment or call without justifiable grounds, shall be punished by imprisonment with labor for not more than three years.” The report period for active duty enlistment is prescribed as three days under Subparagraph 1 of the foregoing Article. (Following the instant case, the Military Service Act underwent several amendments, but Article 88(1) as well as the following provisions remain intact in terms of substantive content. Hereinafter, the Military Service Act refers to the current law unless otherwise indicated.)

The first instance court convicted the Defendant and sentenced him to one year and six months of imprisonment with labor. The Defendant appealed, but the lower court dismissed the appeal.

The Defendant appealed to the final appellate court by asserting that there existed a justifiable cause as stipulated in Article 88(1) of the Military Service Act, inasmuch as conscientious objection to military service is based on the freedom of conscience guaranteed by Article 19 of the Constitution of the Republic of Korea and Article 18 of the International Covenant on Civil and Political Rights (hereinafter “ICCPR”; the United Nations referred to as “UN” and the organization performing its functions in accordance with the ICCPR referred to as the “United Nations Human Rights Committee (UNHRC)”).

The key issue of this case is whether the so-called “conscientious objection” falls under “justifiable grounds” as prescribed by Article 88(1) of the Military Service Act.

2. “Justifiable cause” defined under Article 88(1) of the Military Service Act

A. Article 5(2) of the Constitution provides that “The Armed Forces shall be charged with the sacred mission of national security and the defense of the land and their political neutrality shall be maintained.” Article 39(1) of the Constitution provides that “All citizens shall have the duty of national defense under the conditions as prescribed by Act.” In short, the Constitution explicitly imposes on all sovereign citizens to uphold the constitutional duty to ensure a nation’s independence and the completeness of its land by defending a State from external enemies.

Article 88(1) of the Military Service Act is a penalty provision for those who evade the duty of military service without justifiable cause upon receiving a notice of enlistment in active service or a written draft notice, thereby suppressing evasion and securing armed forces. Pursuant to the foregoing provision, nonperformance of such military service duty may be punishable if there exists a justifiable cause. Here, “justifiable cause” refers to grounds for exclusion of constituent elements and is distinctive from a “justifiable act” (grounds for exclusion of illegality) or “impossibility of occurrence of an illegal act” (grounds for exclusion of responsibility) under the Criminal Act (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004).

B. The Military Service Act specifically provides for the duty of military service, which is one of the constitutional duties of national defense. In detail, the duty of military service is imposed on all men who attain the age of 18 (see Articles 3 and 8) and exemption from the same will be given to those who attain the age of 40 (see Articles 71 and 72). In the event that the head of a regional military manpower office, etc. individually renders a disposition of enlistment, decisions relating to the type and content of military service or the exemption of military service shall be made by taking account of the following factors regarding military service obligors, i.e., physical and mental state, qualifications (such as educational background and age), family matters, criminal record, whether said person applied for naturalization or defected from North Korea, whether said person plans to emigrate to a foreign country, and the level of expertise or skill (see Articles 5, 11, 12, 14, 62, 63, 64, and 65).

As above, based on considering the various circumstances of citizens, the Military Service Act determines whether to impose or exempt the duty of military service as well as the type and content of military service. In other words, the Act imposes the duty of military service within a reasonable scope to those capable and will not find such as excessively burdensome. Such purport of the Act ought to be reflected when constructing “justifiable grounds” under Article 88(1) thereof.

C. Therefore, even as to matters not considered in the process of imposing the duty of military service, if a specific and individual circumstance of the person, who is obligated to serve in the military but refuses to do so, results in disabling said person from coping with the challenges associated with military service, such circumstance ought to be deemed as constituting “justifiable cause” as stipulated in Article 88(1) of the Military Service Act. The same holds true even where such circumstance is not simply temporary or does not occur among others.

3. Conscientious objection and “justifiable cause” under Article 88(1) of the Military Service Act

A. Constitutional freedom of conscience and its restriction

(1) Article 19 of the Constitution guarantees the freedom of conscience by stipulating that “All citizens shall enjoy the freedom of conscience.” Freedom of conscience is a basic condition for maintaining the dignity of humans as a moral, spiritual, and intellectual being, which is the utmost value under the Constitution and an essential premise for establishing a democratic system; thus, it should be guaranteed to the highest degree above all other fundamental rights (see, e.g., Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010).

Freedom of conscience not only includes inner freedom, such as the freedom to form conscience and the freedom to decide according to conscience, but also the freedom to outwardly express and realize the decision that was made according to the formed conscience. Although the freedom of conscience may be classified into inner freedom and outer freedom (see, e.g., Constitutional Court en banc Decisions 2008Hun-Ga22, Aug. 30, 2011; 2011Hun-Ba379, Jun. 28, 2018), pursuing this should be done carefully so that it does not lead to a simple formal logic according to which inner freedom is not restricted given that it is an absolute right and outer freedom is restricted at any time given that it is a relative right. Likewise, the freedom of conscience realization may be restricted by law if there exist such extenuating circumstances as the need to secure national security, maintain order or realize public welfare as prescribed by Article 37(2) of the Constitution; provided, its substance may not be infringed. As to the outward expression of conscience, restricting the same ought to be subject to strict assessment of whether it contravenes the foregoing constitutional doctrine. To do so, the following matters need to be examined in earnest: meaning and function of conscience that is protected under the Constitution, the form in which the act of realizing conscience occurs, and issues of conflict with other constitutional values.

(2) Conscience that is guaranteed by Article 19 of the Constitution does not mean the so-called “kind heart” or “proper thought”; rather, it refers to a value-
driven and moral attitude of a person to determine what is right and wrong. This falls under the inner realm of ethics according to which diversity based on personal conviction should be guaranteed, and coercion through external intervention and oppression should not be permitted in the formation and change of such personal conviction (see, e.g., Constitutional Court en banc Decision 2001Hun-Ba43, Jan. 31, 2002). Conscience is a strong and genuine voice within guiding us that one’s value as a human being will be destroyed if one does not act according to his or her conscience; that being said, when determining right and wrong, the outward expression of such conscience ought to be dire and specific (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004; Constitutional Court en banc Decision 2011Hun-Ba379, Jun. 28, 2018).

Freedom of conscience may be infringed if an ethical conviction derived from within and an external demand for legal order clash to the point that it becomes unavoidable (see, e.g., Constitutional Court en banc Decision 98Hun-Ma425, Apr. 25, 2002). As can be seen, if the command of conscience and the command of law collide, freedom of conscience aspires to grant feasibility for an individual to abide by that conscience (see, e.g., Constitutional Court en banc Decision 2002Hun-Ga1, Aug. 26, 2004).

(3) The process, as well as the motive and substance, of the formation, maintenance, and realization of conscience vary by individual. As such, it cannot be said that other constitutional values are unilaterally superior to that of the freedom of conscience and vice versa.

Generally, inasmuch as conflict with other constitutional values does not occur when conscience remains within, there is no reason for a State to intervene. An individual’s formation and maintenance of conscience within are what inherently constitute freedom of conscience, and thus, should not be restricted. However, in cases where conscience is externally realized, the issue is no longer confined to an individual. The need for restriction arises since it may clash with other constitutional values.

Given that the form of conscience realization is diverse, the aspect and degree of collision with other constitutional values also vary. Conflict with a State’s legal order may occur in the process of an individual’s voluntary and active realization of conscience. In such case, the freedom of conscience realization may be restricted. Freedom of conscience is not construed as a general freedom that may violate the command of law on the ground of going against the command of conscience. No fundamental right of freedom can serve as a basis to dismantle a State and legal order, and should not be interpreted as such (see, e.g., Constitutional Court en banc Decision 2002Hun-Ga1, Aug. 26, 2004).

However, it is different where a State imposes on an individual the duty to act in a way that goes against that individual’s conscience and forces the individual to perform the duty by applying sanctions, such as criminal punishment for nonperformance of the same. This is the same as forcing an individual to choose to give up one’s inner conscience and perform a State-imposed duty or to self-destroy one’s value of existence as a human being by performing the duty while maintaining one’s inner conscience. Simply waiving the freedom of conscience realization is not a solution. Insofar as an individual does not endure criminal punishment and other sanctions, that individual has to either give up one’s inner conscience or destroy one’s value of existence as a human being. A State’s demand for an inner conscience to externally materialize, as seen above, is not in line with ensuring an individual’s active realization of conscience.

In such case, it is difficult to readily conclude that such freedom ought to be restricted solely on the basis that the same constitutes either an outer freedom or a relative right. Having an individual give up one’s inner conscience or self-destroy one’s value of existence as a human being, and causing that individual to endure sanctions, such as criminal punishment, if attempting to adhere to one’s inner conscience and safeguard one’s value of existence as a human being may excessively restrict fundamental rights or undermine the substance of the same. Inasmuch as the freedom of conscience formation by passive omission is closely related to the freedom of inner conscience, extra caution and more prudence should be exercised as to the restriction thereof.

B. Whether conscientious objection constitutes “justifiable cause” under the Military Service Act

(1) Refusal to perform the duty of military service on moral or religious grounds (so-called “conscientious objection”) refers to an act of refusing to participate in military training or bear arms based on a conscientious judgment established by a religious, ethical, moral, and philosophical motive or other motives similar thereto. That is, a person chooses to object to performing the duty of military service on grounds that one cannot participate in military training or bear arms going against his conscience and that doing so would be inviting the destruction of the value of existence as a human being. Ultimately, conscientious objectors are willing to endure any and all restraints that result from not being able to go against his moral or religious conscience and self-destroy the value of existence as a human being.

Article 88(1) of the Military Service Act provides that any person who fails to enlist in the military shall be punished by imprisonment with labor for not more than three years. In actual trials, without considering the individual circumstances of conscientious objectors, the judiciary uniformly sentences a conscientious objector to imprisonment with labor for at least one year and six months, which applies to persons subject to enlistment in wartime labor service as prescribed by Article 136(1) Subparag. 2(a) of the Enforcement Decree of the Military Service Act. There are quite a number of instances where a father and son or male sibling are all serving a prison sentence. Despite the prevalence of such criminal punishment, there are quite a number of instances where a father and son or male sibling are all serving a prison sentence, and an average of roughly 600 conscientious objectors each year refuse to serve in the military.

(2) The Constitution’s sacred duty of preserving national security and defending our homeland as well as the duty of national defense imposed on all citizens cannot be emphasized enough (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004). This is because the nonexistence of a State shakes the very foundation of guaranteeing fundamental rights. Having materialized the citizen’s duty of national defense through the Military Service Act, the duty of military service ought to be faithfully performed and military administration should be fairly and rigidly executed. The foregoing value should not be neglected just because the Constitution guarantees the freedom of conscience.

(3) Article 39(1) of the Constitution stipulates that “All citizens shall have the duty of national defense under the conditions as prescribed by Act.” That said, the specific method and details of performing the duty of national defense are matters to be decided by law. Accordingly, the duty of military service is specified in the Military Service Act and Article 88(1) of the same Act punishes nonperformance of such duty while, at the same time, has a provision on “justifiable cause” andsubsequentlyallowsthelegislatortoresolve conflicts that are difficult to enumerate in detail. Thus, the issue of normative clash and coordination as to conscientious objection ought to be resolved through the literal construction of “justifiable cause” as defined by Article 88(1) of the Military Service Act. This interpretative method is not only a way to tackle conflicts head on but also accords with the purport of the Military Service Act.

(4) As seen above, the restriction of the freedom of conscience formation by passive omission may either excessively restrain the freedom of conscience or undermine the inherent substance of the same. Conscientious objection to perform military service falls under such conscience formation by passive omission. Conscientious objectors do not deny the duty of national defense itself under the Constitution; provided, however, they merely refuse to perform such duty materialized by the Military Service Act that stipulates the method of performing military service, i.e., participating in military training or bearing arms.

Free democracy functions according to the principle of majority rule, but the same can be justified only when premised on the embracement and tolerance of the minority. On the grounds that consent was not obtained from the majority of the public, a State cannot forever neglect the existence of conscientious objectors who inevitably refuse to enlist in the military to preserve one’s value of existence as a human being even at the risk of being subject to criminal punishment. The fact that the issue of normative clash is insolvable based on uniformly imposing criminal punishment has been verified through the passage of time. Albeit readily consenting to such belief is improbable, the time has come to embrace and tolerate conscientious objectors.

(5) In short, sanctions, such as criminal punishment, should not be imposed on a person who does not perform the duty of military service involving participation in military training or bearing arms on the ground of one’s inner-formed conscience. Uniformly forcing the performance of military service against conscientious objectors and imposing criminal punishment for nonperformance are not only unreasonable in light of the constitutional system that guarantees fundamental rights, such as the freedom of conscience, and the overall legal order, but also contravenes the spirit of free democracy pertaining to the embracement and tolerance of the minority. Accordingly, should the performance of military service were to have been refused due to a genuine conscience, then such refusal ought to constitute “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.

(6) Along with the following judicial precedents deeming that conscientious objection did not constitute “justifiable cause” as stipulated by Article 88(1) of the Military Service Act, i.e., Supreme Court en banc Decision 2004Do2965 Decided July 15, 2004 and Supreme Court Decision 2007Do7941 Decided December 27, 2007, we decide to overrule all other precedents to the same effect, to the extent that they are inconsistent with this Opinion.

C. Issue of introducing the alternative military service system and whether to impose criminal punishment against conscientious objection

Recently, the Constitutional Court ruled to the effect that “inasmuch as disproving alternative military service of ‘conscientious objectors’ is unconstitutional, the National Assembly should introduce the alternative military service system by December 31, 2019” (see Constitutional Court en banc Decision 2011Hun-Ba379, Jun. 28, 2018). Here, the emerging issue is whether conscientious objection should be deemed impermissible prior to the introduction of the alternative military service system, that is, whether conscientious objection ought to be subject to punishment so long as alternative military service is nonexistent.

Whether to acknowledge conscientious objection as a justifiable cause under Article 88(1) of the Military Service Act is not in a logically consequential relationship with the existence or absence of alternative military service, which may serve as a means to resolve the issue of equity regarding the duty of military service that may arise when conscientious objection is acknowledged. That is, alternative military service is premised on the recognition of conscientious objection. Thus, albeit alternative military service is currently not in place or is likely to be introduced in the future, a defendant, who is standing trial upon being indicted for violating Article 88(1) of the Military Service Act, should not be punished if justifiable cause under Article 88(1) is acknowledged.

4. Deliberation and determination of genuine conscientious objection

A. Deliberating and determining whether conscientious objection may be recognized as a justifiable reason is a critical issue. Here, conscience refers to a devout, firm, and sincere belief. Being devout means deeply committed or devoted to a belief that has an overall impact on one’s thoughts and actions. An individual’s entire, not partial, life should be under the influence of such belief. Having a firm belief means that such belief is neither fluid nor variable. Although it does not necessarily mean eternal, such belief possesses an obvious substance that does not tend to easily change. Sincere belief means that no falsehood exists and that such belief is neither conciliatory nor tactical depending on circumstances. Even if a conscientious objector were to have a devout and firm belief, if he were to act differently from his belief depending on circumstances, then such belief cannot be deemed as sincere.

B. In a specific case pertaining to the violation of the Military Service Act, should a defendant assert conscientious objection, the foremost thing to do is to distinguish whether such moral or religious belief is devout, firm, and sincere as seen above. Inasmuch as directly and objectively proving a human being’s inner conscience is improbable, the matter ought to be determined by way of proving indirect facts or circumstantial evidence in light of the nature of things (dererum natura).

C. A prosecutor shoulders the burden of proof as regards the nonexistence of justifiable grounds given that it is a constituent element of a crime (see, e.g., Supreme Court en banc Decision 2006Do6445, Jun. 12, 2008). Provided, proving the nonexistence of a genuine conscience is similar to proving the nonexistence of a fact that has not materialized in an unspecified temporal and spatial setting. Such proof of a vague fact is impossible in light of generally accepted notions, whereas it is easier to assert and prove the existence of such fact. Therefore, such circumstance needs to be considered when determining whether a prosecutor fully performed the duty to prove a case. Doing so can enable (a) the conscientious objector (defendant) to present prima facie evidence that one’s conscientious objection is of a desperate and concrete nature (i.e., going against his conscience would be a self- destruction of the value of existence as a human being) and that such conscientious belief is devout, firm, and sincere, and (b) the prosecutor to prove the nonexistence of genuine conscience by way of impeaching the credibility of the evidence presented. The prima facie evidence that the conscientious objector is required to present should be substantive to the effect that the prosecutor can base the same to prove that no justifiable ground exists.

5. Resolution of this case

The record reveals the following facts. The Defendant, influenced by his father who is a Jehovah’s Witness, was baptized on November 16, 1997 at the age of 13 and had been living his life based on that religious belief. Since initially receiving a written draft notice around early 2003, the Defendant to this day refuses to enlist in the military due to a religious reason. The Defendant’s father and his younger brother had previously served a prison term for violating the Military Service Act after having objected to military service on the same ground. Even though the Defendant is married and raising a little girl and a baby boy, he continues to object military service due to a religious belief even at the risk of facing criminal punishment.

In light of the legal principle as above, the Defendant’s act of refusal to enlist is based on genuine conscience, thereby providing room to deem such refusal as constituting justifiable cause as prescribed by Article 88(1) of the Military Service Act. Accordingly, based on the foregoing method of determination, the lower court should have deliberated and determined whether the Defendant-
asserted conscience fell under justifiable cause as defined by Article 88(1) of the same Act.

Nevertheless, without deliberating on the aforementioned matter, the lower court determined that conscientious objection did not constitute justifiable cause. In so doing, the lower court erred by misapprehending the legal doctrine on the construction of “justifiable cause” under Article 88(1) of the Military Service Act, thereby adversely affecting the conclusion of the judgment.

6. Conclusion

Inasmuch as the Defendant’s final appeal has merit, the lower judgment is reversed, and the case is remanded for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of participating Justices with a concurrence by Justice Lee Dong-won and a dissent by Justice Kim So-young, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik, followed by an opinion concurring with the Majority by Justice Kwon Soon-il, Justice Kim Jae-hyung, Justice Cho Jae-youn, and Justice Min You-sook, a separate concurrence by Justice Park Jung-hwa, Justice Kim Seon-soo, and Justice Noh Jeong-hee, an opinion concurring with the Dissent by Justice Kim So-young and Justice Lee Ki-taik, and a separate concurrence by Justice Jo Hee-de and Justice Park Sang-ok.

7. Concurrence by Justice Lee Dong-won

A. Inasmuch as a fundamental right under the Constitution should be exercised to the extent that it enables a communal life with others within a community state and should be realized within the scope of not hurting other constitutional values and the legal order of a State, which is principally limiting the exercise of all fundamental rights including the freedom of conscience, insofar as a constitutionally-protected legal interest exists to justify the restriction of the freedom of conscience realization, then the same can be deemed as a relative freedom subject to restriction by law pursuant to Article 37(2) of the Constitution (see, e.g., Supreme Court Decision 82Do1219, Jul. 13, 1982).

Article 5(2) of the Constitution stipulates, “The Armed Forces shall be charged with the sacred mission of national security and the defense of the land and their political neutrality shall be maintained.” Article 39(1) imposes the constitutional duty of national defense on all sovereign citizens by providing that “All citizens shall have the duty of national defense under the conditions as prescribed by Act.” In other words, the imposition of the duty of national defense as a constitutional obligation is to ensure the maintenance of the existence and security of a State, which serves as a premise for the realization and protection of citizens’ basic rights, thereby guaranteeing the constitutionally- protected legal interests of all citizens, such as human dignity and value, right to life, and right to property. To realize such legal interests, restricting an individual’s freedom of conscience by law pursuant to Article 37(2) of the Constitution may be permissible. Thus, the duty of national defense can be said to be superior to that of an individual’s freedom of conscience.

B. Yet, taking account of the overall circumstances ― Korea’s military size; the number of conscientious objectors on the ground of religious belief in Korea; practical likelihood of utilizing such objectors as military manpower; degree of hardship in establishing military evasion preventive measures through a fair and objective screening process and by ensuring equity between active military service and alternative military service; and characteristics of modern warfare portraying an information warfare or network centric warfare ― even if permitting alternative military service of conscientious objectors, deeming that it might weaken the nation’s defense power, and thus, place national security at risk is difficult in the current security environment. Moreover, the Constitutional Court recently handed down a constitutional nonconformity decision as regards Article 5(1) of the Military Service Act that does not stipulate alternative military service as a type of military service, and urged the National Assembly to introduce the alternative military service system by December 31, 2019 (see, e.g., Constitutional Court en banc Decision 2011Hun-Ba379, Jun. 28, 2018). That said, legislation is likely to be soon passed.

C. For the foregoing reasons, despite agreeing with the Majority Opinion’s conclusion that reversed the lower judgment, I express my Concurrence as the rationale differs.

8. Dissent by Justice Kim So-young, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik

A. Overview

(1) The gist of the Majority Opinion can be summarized as follows.

(A) The legal doctrine on “justifiable cause” established in Supreme Court en banc Decision 2004Do2965 Decided July 15, 2004 (hereinafter “previous en banc Decision”), which is a case pertaining to a conscientious objector’s violation of Article 88(1)1 (hereafter referred to as “instant penal provision” in the Dissenting Opinion) of the former Military Service Act (amended by Act No. 11849, Jun. 4, 2013; hereafter referred to as “Military Service Act” in the Dissenting Opinion), can no longer be upheld.

(B) Albeit prior to the introduction of the alternative military service system through legislation, if refusal of enlistment in active service on such grounds as religious belief were to satisfy certain requirements (i.e., a dire and specific conscience according to which going against it would be the self-destruction of one’s value of existence as a human being, and that inner-formed conscience is devout, firm, and sincere), then the refusal constitutes “justifiable cause” and the offense of violating the instant penal provision should thus not be established.

(C) Although there is room to regard the Defendant of this case, who is a Jehovah’s Witness and refused to enlist in active service, as meeting the foregoing requirements, the lower court convicted the Defendant as to violating the instant penal provision without accurately deliberating on the matter, and, in so doing, it erred by misapprehending the legal doctrine.

(2) From a legislative policy standpoint, we share the logic presented by the Majority Opinion to the effect that the National Assembly needs to introduce the “alternative military service system” as an alternative for performing mandatory military service by taking into account the disadvantages incurred by a conscientious objector resulting from criminal and administrative sanctions, changes in our nation’s security environment, and public consensus on the need for remedial action.

However, it is utterly impossible to consent with the Majority Opinion’s conclusion and its underpinning logical basis, inasmuch as it cannot be seen as having followed the strict legal reasoning based on the established legal doctrine as well as empirical and logical rules, and is a statutory interpretation deviating from our society’s generally accepted notion and reality. Rather, the reasonableness of the legal doctrine presented in the previous en banc Decision purporting that the majority opinion should be overruled still holds true in light of Korea’s overall normative system and the periodical and societal context. That being said, the same legal doctrine should also be applied as is to this case.

B. Legal doctrine on “justifiable cause” established in the previous en banc Decision

(1) The Supreme Court deemed that, following the materialization of the abstract concept of national defense duty under the instant penal provision by the final decision of the Head of Military Manpower Administration, the penal provision of this case was legislated to prevent avoidance of military service and force the organization of military manpower, which serves as a basis to preserve national security, by punishing those obligated to serve but fail to perform military service without a “justifiable reason” even after having received a written draft notice. Accordingly, the Court determined that “justifiable reason” ought to be construed as grounds that may justify the nonperformance of the duty of military service materialized by the decision of the Head of Military Manpower Administration, namely, confined to illness or other reasons that a non-performer of military service duty cannot be held liable.

(2) Provided, however, the Supreme Court held that, in exceptional cases where the right asserted by a person as the ground for refusal of the materialized duty of military service is guaranteed by the Constitution and said right is recognized as possessing a superior constitutional value that surpasses the legislative purpose of the instant penal provision, there exists a justifiable reason with regard to that person’s refusal of military service. At the same time, the Court deemed that the freedom of conscience formation by passive omission, as a relative freedom, is not a value superior to that of the military service duty, which is a constitutionally-protected legal interest to preserve the human dignity and value of all citizens. On that premise, the Supreme Court determined that: (a) albeit restricting the freedom of conscience pursuant to Article 37(2) of the Constitution to ensure the constitutionally-protected legal interest with respect to the duty of military service, this is a legitimate restriction under the Constitution; (b) even if applying the instant penal provision against conscientious objectors, doing so cannot be viewed as an unlawful infringement of the freedom of conscience; and (c) refusing to enlist in active service on the ground that it goes against the freedom of conscience cannot be deemed as a justifiable reason.

C. Statutory construction regarding “justifiable cause”

(1) Gist and rationale of the Majority Opinion

(A) In broadening the scope of the aforementioned “justifiable cause,” the Majority Opinion deemed that “Albeit circumstances not considered during the process of imposing the duty of military service and rendering a specific disposition of military service under the Military Service Act, if the specific and individual circumstance of the person who failed to enlist is the reason behind that person incapable of performing military service, then the same may constitute justifiable cause.” At the same time, the Majority purports to the effect that the reasons not considered by the legislative branch when imposing abstract duty of service and specific duty of service include reasons based on the personal conviction or belief of the military service obligor (such as a religious belief or conscience for refusing to participate in military training and bear arms), and that the point of time when such reason arose and its continuity, and whether said cause possesses a universal trait that may occur among others are irrelevant.

(B) The Majority Opinion cites the following as its rationale. ① According to the Military Service Act, decisions on whether to impose or exempt military service and relating to the type and content of military service take into consideration various circumstances of the military service obligor, such as physical and mental state, and the duty of service is imposed within a reasonable scope to those “capable” that is not excessively burdensome (hereinafter the literal context regarding the ability to cope with and the degree of military service duty under the Military Service Act is referred to as “ability to cope”). ② Conscientious objection falls under the freedom of conscientious realization by passive omission, and conscientious objectors have no choice but to refuse military service to uphold that conscientious belief. However, the number of people subject to criminal punishment due to refusing military service on that same ground stands at an annual average of roughly 600 people. Even if conscientious objection is permitted in light of the fact that conscientious objectors do not refuse the constitutional duty of national defense itself, as well as Korea’s economic power and national defense power, the public’s high level of security awareness, etc., this is unlikely to impede efforts toward the preservation of national security and homeland defense. ③ Forcing genuine conscientious objectors to perform the duty of military service and punishing those who fail to perform said duty might excessively restrict the freedom of conscience or threaten the inherent substance of the same. ④ It has been verified that embracing and tolerating socially minor groups, including conscientious objectors, can be a way to ensure the justifiability of a free democracy, and that criminal punishment alone cannot resolve the issue of normative clash resulting from conscientious objection.

(C) However, the aforementioned rationale presented by the Majority Opinion deviates from the legislative intent and purpose of the Military Service Act and the purport of statutory provisions on the ability to cope under the same Act. Nor is it in tune, from a systematic and logical perspective, with the interpretation of the Military Service Act stipulating “justifiable cause” and the text of other statutes. Furthermore, the Majority Opinion’s rationale discords with the established legal doctrines of the Supreme Court and the Constitutional Court, i.e., constitutional value and significance of the instant penal provision and the provision on the constitutional duty of national defense, freedom of conscience realization by passive omission portraying the trait of a relative right, and justification of constitutionally restricting the freedom of conscience.

(2) General principle of statutory construction

(A) Inasmuch as a law, in principle, is a universal norm of a society that has identical binding force on many and unspecified numbers of people, construction of the same ought to be objectively reasonable through revealing the standard meaning of the law in question and should not harm legal stability through maintaining utmost consistency that is acceptable by all. In addition, given that positive law is stipulated with the focus on universal and conventional issues, when applying the same regarding a wide range of practical issues, statutory construction ought to have well-grounded reasonableness, that is, an interpretative approach that functions as the most suitable solution on a case-by-case basis. In short, the objective of statutory construction should always be on seeking concrete reasonableness within the extent that does not harm legal stability. Furthermore, in principle, the statutory language ought to be construed in accordance with the ordinary meaning as well as with the demand for well-grounded reasonableness by employing a systematic and logical interpretative method that factors in the legislative intent and purpose of the relevant law, its establishment and amendment history, harmony with the overall legal order, and relationship with other statutes (see, e.g., Supreme Court Decision 2006Da81035, Apr. 23, 2009).

(B) The same holds true where an indefinite concept is inevitably used in a statutory provision related to the constituent elements of a crime due to limitations in the technical aspects of legislation, etc. In such case, the specific meaning or content of the relevant provision, including the indefinite concept, ought to be revealed by trial on an individual case-by-case basis. However, be that as it may, solely on the basis of seeking well-grounded reasonableness or that there is benefit on the part of a defendant in each case, the relevant provision should not be interpreted without any concrete or sufficient legal basis that can support such reasonableness.

Accordingly, along with the legislator’s prudent intent in having stipulated an indefinite concept in the relevant penal provision, such factors as the legislative intent and purpose of the relevant statute and the purport of the penal provision that has an indefinite concept and other relevant statues ought to be comprehensively considered, and furthermore, determination within a reasonable scope is required in line with the layman’s sound common sense (see, e.g., Supreme Court Order 2001Geu133, Jun. 18, 2004; Supreme Court en banc Decision 2013Do850, Jul. 21, 2016). For this, in applying a justifiable construction method, other than literal interpretation, based on citing other provisions of identical statutes, factoring mutual relationship with other provisions or referring to established precedents, a judicial officer should produce a credible legal doctrine on the interpretation and application of such statutory provision, and, consequentially, the general public, as upholders of law, ought to be able to predict the value warranting protection as well as the type and form of acts proscribed by the relevant penal provision, and a State’s measures to counter such acts (see, e.g., Constitutional Court en banc Decision 89Hun-Ga104, Feb. 25, 1992).

(C) Particularly, in countries such as that of Korea adopting the civil law system (European continental law system) governed by statutes, a judge is tasked with discovering law amid the complicated web of the positive law system. Depending on individual cases, although there are instances where the supplementation or formation of law is inevitable by a court’s judgment on the ground of apparent legislative flaw, this should be refrained the to the greatest extent possible or minimalized within the necessary scope. Likewise, with respect to penal provisions, upon controversy over the imbalance or unconstitutionality of penalty that arose from changing of the times and social environment following the enactment and revision of a penal provision, notwithstanding the fact that said penal provision was neither revised through an official legislative process nor declared unconstitutional by the Constitutional Court, such interpretative method seeking to develop a completely new law that the legislator had not originally intended may not be deemed as falling within the purview of judicial authority (see, e.g., Supreme Court Decision 2014Da9212, Aug. 24, 2016). This is a natural conclusion in accordance with the constitutional principle of the rule of law and the principle of the separation of powers, which serve as the basis of the judiciary.

(3) Legislative purpose of the Military Service Act and ability to cope with the duty of military service

(A) The purpose of the Military Service Act is to “provide for matters concerning the mandatory military service by the citizens of the Republic of Korea” (Article 1). According to said Act, all male citizens of the Republic of Korea are obliged to perform the duty of military service until they reach a certain age while female citizens may apply for enlistment, but special provisions on military service not pursuant to the Military Service Act may not be established (Articles 3(1) and (2), 71, and 72). This is a declaration of the adoption of the military service system based on the universal conscription system and the compulsory draft system, the narrowing recognition of special provisions on military service based on the “principle of equal sharing of military service burden,” and the assurance of transparency in the operation of the military service system.

Therefore, postponement of, or exemption from, enlistment of Korean male citizens who are obligated to serve in the military should not be permissible as a matter of principle unless the grounds for exemption are clearly stipulated in the Military Service Act. The legislative purpose of the Military Service Act and the basic purport of the conscription system is to enforce the performance of a specified duty of military service (i.e., enlistment), and the same should be carried through as a matter of course when interpreting “justifiable cause” under the instant penal provision.

(B) Special causes to either exclude or exempt a person obliged to perform military service from enlistment (hereinafter “exemption causes”) stipulated in the Military Service Act include: those having been sentenced to long-term imprisonment (Article 3(4)); those having been determined incapable of performing military service following the draft physical examination (Articles 12(1)3 and 14(1)3); those who are incapable of providing military service due to an overall deformity, disease, mental or physical disorder, etc. or who have immigrated from North Korea (Article 64(1)1 and 2); and those who are incapable of performing military service due to a war wound or a wound in the course of performing a duty (Article 65(1)1).

The Majority asserts that the Military Service Act takes into consideration various circumstances when determining whether a person obliged to serve is capable of performing military service or whether military service is excessively burdensome to that person. However, other than the gender and age factor, only limited circumstances as seen above are acknowledged as exemption causes. In particular, gender and age apply to a specific group so it cannot be deemed as an extenuating personal circumstance. Moreover, rather than pertaining to an individual’s subjective ability to cope with performing a specific military service, gender and age ought to be deemed as having been stipulated according to the legislator’s policy-based and rational determination by taking into account the manpower demand in the military and the supply and demand of draftee resources for military service, as well as the efficiency of operating armed forces depending on physiological characteristics (see, e.g., Constitutional Court en banc Decision 2006Hun-Ma328, Nov. 25, 2010). Although other causes fall under the personal and subjective circumstances of a person obligated to enlist in the military, they are also directly linked to whether that person may be deemed as capable of satisfactorily and properly performing military service to which the essential elements include ability to perform duties, such as engaging in combat and participating in military training (mental and physical disability), adaptability to living in tight quarters, and ability to establish harmonious relationship with subordinates, peers, and superiors (criminal record, North Korean defector), and thus, closely related to realizing the purpose of military administration, i.e., efficient and stable operation of the military. Moreover, the purport of acknowledging such personal and subjective circumstances ought to be acceptable by average persons, and, albeit acknowledged, given that their substance is invariable, objective, and value-neutral, the likelihood of causing any dispute or distrust regarding the equal sharing of military service burden is slim. That being said, there is a stark distinction from both a qualitative and quantitative aspect with such grounds as an individual’s religious belief in which the Majority Opinion deems as possible to take into consideration when determining a person’s ability to cope with performing military service duty.

Elsewhere in the Military Service Act, provisions regarding the ability to cope with performing the duty of military service include: requirements for transfer to second citizen service (Article 5(1) Subparag. 5); requirements for undergoing the draft physical examination, determination of physical grades, and disposition of a specific military service (Articles 11(1), 12(1), and 14(1)); requirements for assignment to supplementary service or exemption of military service of a person sent home (Article 47(2) and (3)); requirements for change in assignment of military service of a person whose enlistment is postponed (Article 61(1) and (2)); requirements for transfer from first citizen service to second citizen service (Article 64(1) Subparag. 1); and requirements for assignment to supplementary service or exemption of military service of an active duty serviceman (each paragraph of Article 65). All of the aforementioned requirements are value-neutral standards that are merely referenced to determine the existence or absence and the degree of overall physical and mental ability required for the performance of a specific military service based on any disease or mental/physical disability confirmed through the draft physical examination, etc. Contrary to what is stated in the Majority Opinion, the foregoing is completely irrelevant to determining an individual’s conscientious acceptability or capability based on a religious, ethical, moral, philosophical or other similar motive underpinned by that individual’s value judgment on military service.

(C) Should unreasonable outcomes arise from the principle of equal sharing of military service burden functioning as a uniform standard ― that is, in light of a military service obligor’s ability to cope, performing the duty of military service unconditionally may be excessively burdensome. Thus, we do resonate with the Majority Opinion’s argument for the need to acknowledge exceptions so that a person may be exempt from military service under a certain standard, and furthermore, the same is already recognized as exemption causes provided for in the Military Service Act.

As examined earlier, causes such as military exemption are attributable to the fact that the performance of military service, namely, engaging in combat, undergoing military training, and living together in tight quarters, accompanies physical as well as psychological restraint and sacrifice. Thus, even though a ground associated with the ability to cope with performing such military service duty is considered as a“justifiable cause” as mentioned above, it is equivalent to the grounds for military exemption as stipulated in the Military Service Act, i.e., mental and physical disability, criminal punishment, and North Korean defector. Hence, it is tenable to deem that the grounds for exemption is limited by factoring objective and value-neutral circumstances associated with the ability to perform military service. Doing so accords with the purport of Article 3 of the Military Service Act that strictly restricts military exemption.

Subjective circumstances including an individual belief, value or view, etc. regarding military service, such as conscientious objection on the ground of religious belief as stated in the Majority Opinion, are excluded from the foregoing exemption grounds irrespective of the degree or continuity of said belief. In view of the aforementioned legislative purpose of the Military Service Act, the principle of equal sharing of military service burden, special provisions on military service based on the universal conscription system and the compulsory draft system, and the purport of the Military Service Act stipulating the ability to cope with performing military service, even if comparing the duty of military service with other constitutional duties such as tax payment, a more rigid standard ought to apply when determining whether capacity or excessive burden of performing military service may fall under grounds for military exemption.

(4) Construction based on language, logic, structure, etc.

(A) Article 5(1) of the Military Service Act categorizes military service into five types: active duty service (Subparag. 1), reserve service (Subparag. 2), supplementary service (Subparag. 3), first citizen service (Subparag. 4), and second citizen service (Subparag. 5). Procedures leading up to enlistment that are undertaken by those obligated to enlist in active service, such as the Defendant in this case, are stipulated as follows by the Military Service Act: (i) “Every male of the Republic of Korea shall be enlisted for the preliminary military service when he attains the age of 18 years” (Article 8); (ii) “Every person liable for military service shall undergo a draft physical examination … when he turns 19 years old …” (Article 11(1)); (iii) “The director of each regional military manpower office shall issue a military service disposition … on persons falling under any of Physical Grades I through IV to be enlisted for active duty service” (Article 14(1)1); (iv) “The Commissioner of the Military Manpower Administration or the director of each regional military manpower office shall have those whose order of conscription for active duty service has been determined enlist in the military …” (Article 16(1)); and (v) “An active duty serviceman shall serve in a military unit from the day he enters military service” (Article 18(1)).

“Military service disposition” is an administrative disposition imposing a person to enlist in active duty service, supplementary service or other classified service status by considering that person’s qualifications, i.e., physical grade according to the draft physical examination that is a premise for imposition of the duty of military service, educational background, and age. “Enlistment disposition” is an administrative disposition imposing a person who received a military service disposition with the duty of a specific military service, i.e., enlistment, and ordering that person to perform said duty. Therefore, although an enlistment disposition is premised on a military service disposition, each disposition is based on two different provisions, and, as such, deemed as two independent administrative dispositions according to which two separate legal effects occur (see, e.g., Supreme Court Decision 2001Du5422, Dec. 10, 2002).

Yet the instant penal provision stipulates that any person who fails to enlist in the military without a justifiable cause shall be punished by imprisonment with labor for not more than three years. Examining the language of the instant penal provision in light of the legal doctrine on the independency of the military service disposition and the enlistment disposition, the violable act subject to punishment is “an act of not responding within three days of having received a written notice of enlistment in active duty service,” that is, nonperformance of a specific duty of enlistment according to the enlistment disposition. The instant penal provision is merely construed as a means to enforce the performance of a specific and practical enlistment disposition issued by the head of a regional military manpower office, and irrelevant to ensuring the performance of other preceding military service duties, such as the military service disposition and the draft physical examination.

Therefore, as otherwise stated in the Majority Opinion, from a literal standpoint, “justifiable cause” ought to be interpreted as narrowing the justifiable cause to not responding to the duty of enlistment at a designated date and place based on the enlistment disposition. As seen infra, the reasonableness of this conclusion is clearly revealed through the systematic and logical interpretation of the instant penal provision, the Military Service Act, and other relevant statutory provisions.

(B) Article 9(1) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 24890, Dec. 4, 2013; hereinafter referred to as “Enforcement Decree” in the Dissenting Opinion) provides that the head of each regional military manpower office shall serve notices of draft physical examination of persons subject to draft physical examination. Premised thereto, Article 87(3) of the Military Service Act stipulates that “Any person who receives a notice of a draft physical examination [...] fails to undergo such examination on the designated date without justifiable grounds shall be punished by imprisonment with labor for not more than six months.” Also, the Military Service Act provides that where a military service obligor travels abroad without obtaining permission from the head of a regional military manpower office or postpones the performance of military service duty while staying abroad upon permission, either fails to return to the Republic of Korea by the permitted period or fails to return to the Republic of Korea going against the order to return by the head of a regional military manpower office without justifiable grounds, then that person shall be punished by imprisonment with labor for not more than three years (Articles 94, 70(1) and (3), and 83(2)10).

As above, other than the enlistment disposition, as regards each phase of the preceding military service administrative disposition, the Military Service Act has a penal provision with the legally required fact as “justifiable cause” that is similar to the purport of the instant penal provision. Moreover, no special provision exists regarding the applicable superiority or exclusion among such penal provisions under the Military Service Act. Fully considering these circumstances, construing that each penal provision is a means to enforce the performance of a specific military service duty imposed on a person obliged to serve during the phase of the relevant military service administrative disposition and that “justifiable cause” under each penal provision is limited to grounds related to the performance of the relevant specific military service duty accords with the overall structure among the provisions. Therefore, “justifiable cause” of the instant penal provision should be, as a matter of course, grounds related to the specific duty of military service, i.e., enlistment, imposed according to the enlistment administrative disposition.

Yet, Article 2(1) of the Military Service Act defines the term “enlistment in the military” as a person obliged to perform military service enters a military through conscription (Subparag.3) and the term “conscription” as a State’s imposition of a duty to perform active service on any person liable for military service (Subparag.1). Article 61(1) of the same Act provides for “postponement of enlistment” bystipulatingthat,foranyperson who has received or is to receive a written draft notice is unable to enlist on the required date due to an illness, mental or physical disorder, disaster, etc., the date may be postponed. Article 129(2) of the Enforcement Decree of the Military Service Act provides that the date for fulfillment of military duty may be postponed by up to two years. Also, based on the instant penal provision, a military service obligor should enlist on the designated date as a matter of principle; however, if the designated date of enlistment lapses due to “natural disaster, traffic paralysis, delay in the service of notice, or other extenuating circumstances,” that person may enlist within three days from the date of enlistment (Article 24(1) of the Enforcement Decree).

In full view of the meaning of enlistment and conscription under the Military Service Act and its Enforcement Decree, the purpose of the enlistment postponement system and the postponed enlistment system, and grounds for postponement, etc., “justifiable cause” under the instant penal provision with respect to enlistment in active service should be a reason suffice to justify not being able to immediately fulfill the duty of assembling on the designated date and at the designated place upon having received a written draft notice. That is, it shall be confined to grounds acknowledged as requirements to temporarily postpone or delay enlistment according to the Military Service Act, i.e., reasons that cannot be attributable to an individual, such as illness and disaster.

However, without any limitation on the specific period and subject, etc., broadly construing “justifiable cause” to include an extremely abstract and comprehensive meaning as stated in the Majority Opinion (“albeit circumstances not considered during the process of imposing the duty of military service and rendering a specific military service disposition, a particular and individual circumstance disabling a person who is obliged to serve but did not enlist to cope with the performance of the relevant military service”) deviates from the principle and limitation of statutory interpretation according to which a statute ought to be construed within the scope of legislative purpose based on the language, logic, and structure.

(C) Under the current legal system, statutory provisions exist where the justifiable causes for not being able to perform an obligation or exercise a right by the given date or period are linked to the self- responsibility of such obligation performer or right-holder, or are confined to such irresistible grounds as an illness or a disaster. For instance, as a requirement for acknowledging the subsequent completion of litigation, Article 173(1) of the Civil Procedure Act provides that “Where a party could not observe an invariable period due to any cause not attributable to himself/herself, he/she may subsequently complete the litigation which he/she failed to conduct, within two weeks from the date on which such cause ceases to exist.” As regards the compliance of periods and due dates under administrative procedures, Article 16(1) of the Administrative Procedure Act stipulates that “Where it is impossible to abide by a period or time limit due to a natural disaster or any other cause beyond the control of concerned parties, etc., the progression of the period shall be suspended until the day of cessation of such cause.”

(D) Ultimately, the Majority Opinion’s interpretation of the foregoing “justifiable cause” to mean a “cause disabling a person to cope with the performance of military service” and broad-setting of the scope thereof can only be seen as the substitution of another abstract legal term in the process of construing an existing abstract legal term. Moreover, as seen earlier, the substituted legal term contradicts the Supreme Court’s established precedent as well as the purport, language, logic, and structure of the Military Service Act. In attempting to forcibly include conscientious objection in construing “justifiable cause” as prescribed by the Military Service Act, the Majority Opinion appears to have laid forth a contrived definition contravening the doctrine of statutory interpretation.

(5) Constitutional significance of the national defense duty and the instant penal provision

(A) Article 10 of the Constitution provides that “All citizens shall be assured of human worth and dignity and have the right to pursuit of happiness.” However, amidst today’s country-oriented world order, national security and homeland defense functions as a requisite for all freedoms guaranteed to each individual (see, e.g., Supreme Court Decision 2009Do7332, Sept. 24, 2009). Accordingly, national security and homeland defense can be said to be a pivotal legal interest protected by the Constitution that serves as the basis for assuring the constitutional fundamental human rights and values (see, e.g., Supreme Court Decision 2007Do4522, Aug. 23, 2007).

According to the Constitution: “The Armed Forces shall be charged with the sacred mission of national security and the defense of the land and their political neutrality shall be maintained” (Article 5(2)); “The organization and formation of the Armed Forces shall be determined by Act” (Article 74(2)); “The President shall have the responsibility and duty to safeguard the independence, territorial integrity and continuity of the State and the Constitution” (Article 66(2)); “The President shall be Commander-in-Chief of the Armed Forces under the conditions as prescribed by the Constitution and Act” (Article 74(1)); “All citizens shall have the duty of national defense under the conditions as prescribed by Act” (Article 39(1)); and “Bills and other matters submitted to the National Assembly for deliberation shall not be abandoned on the ground that they were not acted upon during the session in which they were introduced, except in a case where the term of the members of the National Assembly has expired” (Article 51).

Here, the duty of national defense refers to a duty imposed on citizens for the purpose of maintaining a State’s independence and preserving the territory against direct or indirect invasions by foreign enemy forces. The Constitution may be construed as demanding the responsibility of national security and national defense based on the universal conscription system and the principle of equal sharing of military service burden, namely, allocating the burden of national defense duty to all sovereign citizens necessary to ensure the safety and peace of a community state. In light of our nation’s security environment, etc., such demand is a strong and absolute social demand incomparable to that of any other society (see, e.g., Constitutional Court en banc Decision 2005Hun-
Ma739, Nov. 30, 2006).

The constitutional provision on the duty of national defense already existed in Article 10 of the Interim Constitution of the Republic of Korea, and Article 30 of Korea’s Founding Constitution provided that “All citizens shall have the duty of defending the land under the conditions as prescribed by Act.” Following the amendment of the Constitution in 1962, the foregoing provision remains intact with only the phrase “defending the land” having changed to “national defense.” In particular, the duty of national defense, even if not stipulated under a nation’s constitution, is a unique duty imposed on citizens that have come to be naturally recognized by most countries according to a State’s universal function of defending its territory and ensuring national safety; nevertheless, the Constitution of Korea separately provides for such duty. This is indicative of the fact that the duty of national defense, along with the constitutional value of guaranteeing fundamental human rights, is a norm with constitutional justification as an underlying resolution, that is, a basic agreement between the constituent members of a community. That said, as a constituent member of a community state supporting the existence of a State and anticipating the maintenance of safety and peace to share the constitutional value, that individual should not be deemed as able to refuse the duty of national defense itself that is imposed by the Constitution and materialized by the Military Service Act, etc.

(B) The Military Service Act is a basic statute that directly regulates activities related to national defense by providing for matters concerning the formation of the Armed Forces (Article 1) based on the principle of statutory reservation under the Constitution. Generally, modern warfare is known as an “all-out-war” that requires a sophisticated level of science technology and information as well as cooperation from the entire public, and the duty of national defense does not refer to only the direct duty of formation of military power, such as serving in the military as an active duty serviceman according to the Military Service Act. Nonetheless, performing the direct duty of formation of military power pursuant to the Military Service Act remains a pivotal legal interest that the Constitution evidently aspires to realize through imposing the duty of defense on all citizens, i.e., laying the foundation for the preservation of national security and the assurance of national defense.

As such, the fact that the Military Service Act is underpinned by the Constitution and that the Act is a norm with constitutional justification to function as a way to realize the pivotal constitutional legal interest should be considered when interpreting and applying individual provisions of the Military Service Act, and such purpose and function of the Act should not be undermined. This bears all the more significance in construing the term “justifiable cause” that may lead to allowing exceptional rules to military service.

(C) Premised on the fact that whether to permit conscientious objection is an issue of normative clash and coordination between fundamental rights (freedom of conscience) and constitutionally-protected legal interests (duty of national defense), the Majority Opinion appears to regard the constitutional norm that serves as the direct basis for resolving such conflict to be the principle of statutory reservation as to the duty of national defense under Article 39(1), not the general principle of statutory reservation as to the limitation of fundamental rights under Article 39(1). In other words, the Majority Opinion purports that the Constitution requires the specific method of performing the duty of national defense and its substance to be prescribed by law according to the principle of statutory reservation on the duty of national defense and that, accordingly, the Military Service Act established “justifiable cause” in the instant penal provision to resolve any conflicts in legal interests that the legislator had difficulty enumerating in detail while setting the provisions on imposing the duty of military service.

However, as seen above, Article 39(1) of the Constitution is a norm that delegates authority to a State to impose the duty of national defense on citizens. Thus, similar to the duty of tax payment under Article 38 of the Constitution, the imposition of the duty of national defense should be regulated by law that is established by the National Assembly, which is a representative body of the people, to guarantee the rights and interests of the people. Furthermore, the requirements for imposing said duty should be explicit to ensure legal stability and predictability in people’s lives (see, e.g., Constitutional Court en banc Decision
96Hun-Ba52, Jul.16, 1998).

On the other hand, the issue of normative clash and coordination between the constitutionally-protected legal interests and fundamental human rights that occur during the process of realizing the military service system established by the legislator should be resolved according to Article 37(2) of the Constitution, which is the general principle of statutory reservation on the limitation of fundamental rights, and the over-breadth doctrine (see, e.g., Supreme Court Decision 2009Do7981, supra; Constitutional Court en banc Decision 2011Hun-Ba
379, Jun. 28, 2018). The principle of statutory reservation on the imposition of fundamental duties and the general principle of statutory reservation on the limitation of fundamental rights under the Constitution ought to be distinguished in terms of the purpose and purport as prescribed therein.

Therefore, the Majority Opinion’s position that the interpretation of “justifiable cause” under the instant penal provision based on the principle of statutory reservation on the duty of national defense under the Constitution is either a means to resolve the normative clash or coordination between the constitutional freedom of conscience and the duty of national defense, or accords with the purport of the Military Service Act is neither acceptable from the constitutional interpretative perspective nor consistent with the established legal doctrine of the Supreme Court and the Constitutional Court.

(6) Constitutional interpretation of the freedom of conscience

(A) Among the freedom of conscience guaranteed by Article 19 of the Constitution, the freedom of conscience formation and the freedom of conscientious decision refer to an individual’s freedom to form one’s conscience within the inner realm and to make a conscientious decision without any unlawful external interference or coercion. The freedom of conscience realization means an individual’s freedom to externally express an inner-formed conscience and to establish a life according to that conscience; in detail, it includes the freedom to express conscience or not be coerced into expressing conscience (freedom of conscience expression), the freedom to not be coerced into acting against conscience (freedom of conscience realization by omission), and the freedom to act according to conscience (freedom of conscience realization by commission) (see, e.g., Constitutional Court en banc Decision 2002Hun-Ga1, Aug. 26, 2004).

Insofar as the freedom of conscience formation and the freedom of conscientious decision remain within, the same cannot be restricted or need to be restricted, and therefore, constitutes absolute conscience (see, e.g., Supreme Court Decision 2005Do9205, Mar. 23, 2006; Constitutional Court en banc Decision 96Hun-Ba35, Jul. 16, 1998). Meanwhile, even if the freedom of conscience is a fundamental right that should be guaranteed above all other fundamental rights, principally limiting the exercise of all fundamental rights including the freedom of conscience is that a fundamental right under the Constitution should be exercised to the extent that it enables a communal life with others within a community state and should be realized within the scope of not hurting other constitutional values and the legal order of the State. In that context, the established legal doctrine of the Supreme Court and the Constitutional Court is that, insofar as a constitutionally-protected legal interest exists to justify the restriction of the freedom of conscience realization, then the same can be deemed as a relative freedom subject to restriction by law pursuant to Article 37(2) of the Constitution (see, e.g., Supreme Court Decision 82Do1219, Jul. 13, 1982; Supreme Court Decision 2009Do7981, Oct. 15, 2009; Constitutional Court en banc Decision 2008Hun-Ga22, Aug. 30, 2011). In short, conflict with other legal interests may arise during the process of fulfilling the freedom of conscience expression and the freedom of conscience realization by passive omission, and thus, inevitably lead to the restriction of such freedom, but nonetheless, it cannot be deemed as the inherent substance of the freedom of conscience being infringed (see, e.g., Supreme Court Decision 2005Do4083, Jul. 28, 2005).

According to the foregoing legal doctrine, if the purport of the Majority Opinion, although relatively unclear, is that the “maintenance of conscience” ought to be regarded as the substance of the freedom of conscience (which is a right of passive defense against a State’s public power), this is ultimately a freedom not to be coerced by a State, etc. to either express one’s conscience or give up one’s inner conscience through expression, thereby deemed de facto identical as the existing “freedom of conscience expression.” Yet, as a type of the freedom of conscience realization, the freedom of conscience expression falls under a relative freedom and cannot be regarded as superior to that of other constitutionally-protected legal interests, and may be restricted by law if the need arises for national security pursuant to Article 37(2) of the Constitution. Even if the maintenance of conscience or the freedom of conscience realization by passive omission may appear on the surface to be closely related to the freedom of inner conscience, such as the freedom of conscientious decision or the freedom of conscience formation, it cannot be treated differently solely on such reason. In particular, this is all the more true where a State’s imposition of the duty to act, which is the premise of conscience realization by passive omission, is based on the fundamental duties under the Constitution that equally apply to all citizens for the purpose of realizing the constitutionally-protected legal interests identical to that of the freedom of conscience.

Therefore, the duty of military service is imposed according to the content and procedure stipulated in the Military Service Act that was legislated based on the provision on the duty of national defense under the Constitution. The act of conscientiously objecting performance of such duty, which requires participation in military drills or training, grounded on the fact that it goes against one’s religious belief formed through self-decision cannot be justified on the basis that said act pertains to “maintaining conscience” or “freedom of conscience formation by passive omission.” Furthermore, notwithstanding that criminal punishment based on the instant penal provision is imposed against conscientious objectors as an inevitable means to realize practicality as to equally distributing the burden of, and performing, military service under the Military Service Act, such circumstance alone is insufficient to deem that a State’s enforcement of an individual’s performance of military duty going against the individual’s inner conscience will neither result in the destruction of the value of existence as a human being or the unlawful coercion of opting the individual to endure criminal punishment to maintain conscience, nor excessively restrict fundamental rights and/or infringe or undermine the inherent substance of the same.

(B) On the premise that conscience objection is always superior to that of the constitutionally-protected legal interests related to the duty of national defense that the Constitution and the Military Service Act aspires to maintain and protect, as regards the maintenance of conscience or the restriction of the freedom of conscience realization by passive omission, the Majority Opinion presents the following as its rationale that has never been properly discussed by the Supreme Court and the Constitutional Court or within the academic circle: the nature of conscience maintenance as an absolute right, the distinction of the scope of protection between the freedom of conscience realization by passive omission and the freedom of affirmative conscience realization, unlawfulness of a State’s restriction of the freedom of conscience realization by passive omission through exercise of punitive authority, and the restriction of conscience realization by passive omission to excessively restrict inner conscience or threaten the inherent substance of the freedom of conscience. However, absent an obvious logical and theoretical basis, the Majority Opinion equates the freedom of conscience already externally realized by passive omission with the inherent substance of the freedom of conscience, and, based thereon, unilaterally declares that the same possesses de facto absolute superiority overall other constitutional values. Furthermore, this is no different from suddenly denigrating previous judicial precedents, which were established by the Supreme Court and lower courts through extensive arguments and reflection, as unconstitutional for having undermined the inherent substance of all fundamental rights.

In the previous en banc Decision, the Supreme Court, premised on the fact that conscience objection constitutes a relative right related to the freedom of conscience realization by passive omission, presented the legal doctrine that the justification of conscientious objection should be reasonably determined according to the proportionality doctrine or the over-breadth doctrine under Article 37(2) of the Constitution. This takes into consideration the unreasonableness of the interpretative theory of the Majority Opinion as noted above.

(C) The Majority Opinion states that “In light of the current status of conscientious objection as seen earlier along with Korea’s economic power and national defense power and the public’s high level of security awareness, etc., permitting conscientious objection cannot be necessarily deemed as impeding efforts toward ensuring national security and strengthening national defense. Therefore, forcing genuine conscientious objectors to perform military service accompanied by participation in military training and bearing arms and punishing the same for nonperformance may be excessively restricting the freedom of conscience or distorting the inherent substance of such freedom.”

Yet, while the Majority Opinion deems that conscience, which is a motive for conscientious objection, includes not only a religious conscience but also an ethical, moral, philosophical or other similar conscience formed, regarding the current state of conscientious objection, the Majority Opinion only cites the cases of believers of a specific religious sect, i.e., punishment of imprisonment with labor of not less than one year and six months is being unilaterally handed down; there are several instances where a father and son or male sibling are serving a prison term; and these conscientious objectors do not deny the duty of national defense itself under the Constitution. However, there is no mention of cases involving people who are asserting or likely to assert conscientious objection according to religious creeds or dogmas, or based on an ethical, moral, philosophical or other similar motive.

In addition, the Majority Opinion fails to present any relativity between the need to permit conscientious objection with the currently limited status of conscientious objection, Korea’s economic and defense power, and the public’s high level of security awareness. Moreover, it is unknown as to what basis the Majority Opinion drew the conclusion that permitting conscientious objection would not impede the efforts toward the preservation of national security. Furthermore, the Majority Opinion is silent on why disproving conscientious objection and rendering punishment would be not only an excessive restriction of the freedom of conscience but also a threat to the inherent substance of the same.

Such position of the Majority Opinion can only be deemed as having interpreted the instant penal provision by confining the applicable scope to a specific religious sect, namely, Jehovah’s Witnesses including the Defendant. Then, in this case, the Defendant’s fundamental right clashing with the constitutionally-protected legal interest (national security) is not the universal freedom of conscience but the freedom of religion as prescribed by Article 20(1) of the Constitution. More specifically, construing that an individual’s freedom to passively engage in religious acts, i.e., not being coerced to act going against one’s religious conviction, may be restricted by law is more in tune with the constitutional norm.

(D) As seen earlier, the instant penal provision, which is a sanction against avoidance of enlistment, was established as a reasonable means to ensure the practicality of military service, one of the most basic duties of national defense. If national security and homeland defense (legal interests protected under the Constitution) are not preserved upon the nonperformance of the military service duty, the dignity and value as a human being (constitutional values) cannot be properly guaranteed. Inasmuch as a conscientious objector’s freedom of conscience realization by passive omission, as a relative right, cannot be deemed as superior to that of other constitutional legal interests, even if the freedom of conscience of the Defendant who is asserting conscientious objection is restricted according to Article 37(2) of the Constitution to protect such constitutional legal interests, then it should be regarded as a justifiable restriction permissible under the Constitution (see, e.g., Supreme Court Decision 2007Do4522, supra).

D. Issues pertaining to the Majority Opinion’s conclusion

(1) Historical, religious, and cultural backgrounds of conscientious objection

(A) It is a well-known fact that conscientious objection was derived from a specific religious faith: that is, the religious precept and tradition of Christianity that originated from the Roman Empire (periodical aspect) and from the West, such as Europe and neighboring countries (geographical aspect). According to the record, most conscientious objectors in Korea who were penalized on the ground of evading enlistment were Jehovah’s Witnesses, which is a sect of the Christian religion (page 74 of the trial record), including the Defendant of this case. However, all religious sects of Christianity do not adopt the dogma of refusing military service, including participation in military training and bearing arms.

Today, most countries deny a state religion and adopt the principle of the separation between church and state to either lessen or sever the impact that a religious precept has on a community state. In line with the emergence of new political ideologies, such as pluralism and democracy, as a society’s governing value system, it is a veritable fact that an individual’s religious belief has generally weakened. However, in the West, over thousands of years, the ideology and dogma of the Christian religion have deeply impacted and continues to impact a State, social order, and individual life. For this reason, the Christian precept and tradition to this day functions as a deeply-rooted ethical and moral standard or social norm among the constituent members of Western society.

Based on such common historical, religious, and cultural background, most constituent members of Western society may be able to better resonate, from a religious or ethical standpoint, with people following the doctrine of another Christian sect who are asserting conscientious objection. Therefore, it can be inferred that (i) a more tolerant society of the minority asserting conscientious objection based on a Christian ideology can be easily formed, (ii) there is relatively lower resistance among the majority of societal members toward accepting alternative military service or military exemption, etc. through legislative and policy measures, and (iii) reaching social consensus on such matter is relatively easier.

The reasonableness of the foregoing inference is strongly backed by the following. Countries that are active proponents in the legalization of conscientious objection and the introduction of alternative military service to protect conscientious objectors and encourage neighboring countries to do the same are mostly Western nations, i.e., the United States, the United Kingdom, France, Germany, Sweden, Norway, Finland, the Netherlands, Israel, Canada, Australia, and New Zealand. On the other hand, countries that are known to still punish conscientious objectors are nations outside of the influence of Christianity, such as Algeria, Singapore, Turkey, Egypt, and Turkmenistan.

(B) Meanwhile, in the case of Korea, while we have succeeded and maintained a long history and cultural tradition, it is well-known that Korea has not adhered to a specific religion or ideology accepted as a nation or society to function as a basic principle to govern the way of thinking and act as a moral compass among community members. Such tradition continued on after the founding of the Republic of Korea, which led to the denial of a state religion and the development of the principle of separation between church and state upon the establishment of the Constitution (Article 12), and this remains intact under the current Constitution (Article 20(2)). Consequentially, as of around 2015, among Korea’s total population of roughly 49.05 million, the number of people with a religion stands at roughly 21.55 million (43.9%); other than Christianity, there exist various religions in Korea such as Protestantism, Catholicism, Buddhism, Won Buddhism, Confucianism, Cheondogyo, and Daejonggyo (2015 Population Census Report by Statistics Korea). Also, it was after the Joseon Period that Christianity officially entered Korea, so it has only been roughly 200 years since having embraced the religion. Excluding Christianity, among the religious beliefs followed by the remaining half of the Korean population, no particular religions or religious sects are observed that apply the creed of refusing to participate in all military training and bearing arms based on the ideology of respecting life that served as the ground for conscientious objection.

In full view of such circumstances, within our society, Christian ideology is not universally recognized as a social ethic, and conscientious objection based thereon remains an unfamiliar ideology or term among most constituent members of society. Based on our historical and religious tradition or experience, the assertion of conscientious objection underpinned by a Christian ideology or dogma is difficult to be accepted among the general public.

From a historical perspective centering on the Joseon Period (1392-1910), in the case of Confucianism that functioned as a social ideology and ethics led by the ruling power, the underlying political ideology was the realization of a humanitarian country based on the so-called “moral excellence (德治)” and “rule of right (王道)” by influencing people to respect life, avoid killing and violence, and respect conscience and personality. Buddhism, another influential religion, placed stronger emphasis on the respect for life by adopting the so-called “no destruction of life (ahimsa)” precept as the central norm in life. As such, in terms of ideology or dogma, it can be deemed as conforming with the Western society’s ideology of Christianity or the concept of pacifism or anti-war position, which is recognized as the underpinning ideology of conscientious objection. However, with the country’s security and defense hanging in the balance upon military invasion from neighboring powerful nations, such as China and Japan, and thus in urgent need to organize a military force, our ancestors naturally took a step back from such individual and religious ideology or precept and organized military force comprised of civilians and monks who did not hesitate to carry a weapon and engage in war to fight foreign enemies. Furthermore, with respect to such acts as fulfilling the righteous duty as a constituent member of society, this clearly contrasts with the underpinning ideology or belief of conscientious objectors as history has proven.

Today’s situation is not that different even if compared with such prevalent historical traditions or changing of the times. That is, amid military and political conflicts with neighboring powers, it is quite natural that the familiar attitude of our ancestors with regard to national defense known as “the service of gratitude to one’s country (保國獻身),” i.e., respecting life, avoiding killing and war, and fulfilling one’s responsibility by pursuing harmony between an individual’s religious and ideological belief and secular community, is sealed in the minds of most Koreans.

This is indicative of the fact that, compared to other Western nations, generating consensus among the general public would not be easy related to the legal and policy-based acceptance of conscientious objection on the grounds of religious conscience, etc. In short, extensive empirical arguments and considerable time are needed for conscientious objection to be held as a conventional wisdom or sound common sense, or, at the very least, an obvious change in our nation’s security environment ought to be observed to overturn such deeply-rooted notion empirically accumulated over a prolonged period. As to the reality where no clear change in attitude toward accepting conscientious objection is observed and where there are still many who are against the same, it would be inappropriate to simply attribute it to the lack of understanding and tolerance of pluralism and diversity due to the country’s short history of democracy.

Albeit criminal punishment has been continuously handed down against conscientious objection over several decades and the media have keenly expressed interest on the matter, a public survey conducted around November 2013 reveals that a whopping 76% of the respondents stated that they did not understand conscientious objection. In another public survey conducted around November 2014, 58.3% were opposed to permitting alternative military service as a means to replace criminal punishment (pages 80 & 149 of the trial record).

(C) In construing the indefinite concept of “justifiable cause” as above, the Majority Opinion overlooked key historical, religious, and cultural backgrounds and differences underpinning conventional wisdom and sound common sense.

On the premise that two different things are the same, the Majority came to its conclusion without extensively considering the extent of the fundamental difference in common ideologies and values that can sway the general public’s perspective and judgment in the process of inferring the issues disputed in the instant case. In so doing, the Majority Opinion cannot avoid criticism for lacking logical reasoning as well as having erred in presenting a view that distorts from reality.

(2) Sanction against avoidance of military service duty

(A) We agree with the following assertions contained in the grounds of appeal: (a) the freedom of conscience is an utmost fundamental right that should be guaranteed above all other fundamental rights; (b) a State has the duty to confirm and guarantee the fundamental and inviolable human rights of individuals; (c) the concept of pacifism and respect for life adhered by conscientious objectors ought to be respected as a universally-accepted common value of humankind; and (d) efforts need to be made to realize the above as it coincides with our constitutional values.

(B) However, sustainable peace and security are the underlying premise to safeguard and preserve the foregoing constitutional values (see, e.g., Constitutional Court en banc Decision 2005Hun-Ma268, Feb. 23, 2006). In the preamble, the Constitution declares that the Republic of Korea shall pursue the peaceful unification of the Korean Peninsula and endeavor to maintain international peace. The following provisions prescribed in the main text serve as the constitutional ideology or purpose. Article 5(1) of the Constitution provides, “The Republic of Korea shall endeavor to maintain international peace and shall renounce all aggressive wars.” Article 6 thereof stipulates that “Treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea” (Parag. (1)) and “The status of aliens shall be guaranteed as prescribed by international law and treaties” (Parag. (2)) (see, e.g., Constitutional Court en banc Decision 2007Hun-Ma369, May 28, 2009).

Peace and security can only be wholly preserved through realizing national security and homeland defense, that is, protecting a State’s existence and safety and preserving the territory from external threats or invasions (see Article 5(2) of the Constitution). If not, the freedom of conscience, not to mention respect for life, world peace, and welfare of humankind cannot be properly guaranteed as constitutional values (see, e.g., Supreme Court Decision 2009Do7981, supra).

The duty of national defense and the universal conscription system and the compulsory draft system based thereon is a pivotal means adopted by the Constitution to attain the purpose of preserving national security and defending our homeland. According to the universal conscription system and the compulsory draft system, the practicality in the performance of military service can only be assured via a fair and just conscription based on the principle of equal sharing of military service burden. For this, not only should the duty of military service be equally imposed, but also the means to ensure the performance of said duty ought to be firmly in place. However, the degree as to the means for ensuring the performance of military service duty may vary depending on the military environment; that is, the more dangerous and deteriorating the military environment, the more inevitable are stronger sanctions as to acts of avoiding the performance of military service (see, e.g., Constitutional Court en banc Decision 2008Hun-Ga22, supra). Meanwhile, as regard a specific human act, the issue of whether a State should exercise its penal authority on the grounds that said act is an illegal offense or whether to apply other sanctions, and the issue of selecting the type and scope of statutory punishment are matters to be determined by the legislative branch in full view of the following elements (e.g., nature of the relevant offense and the legally-protected interests, Korea’s history and culture, circumstance at the time of legislation, values or legal sentiment of the general public, and policy measures on crime prevention); that said, legislative discretion or the freedom of legislative formation should be recognized (see, e.g., Constitutional Court en banc Decision 2009Hun-Ba46, Apr. 29, 2010).

(C) The conditions for performing duties as an active duty serviceman are prescribed in the following statutes: (i) The service period of an active duty soldier shall be two years or two years and four months (Article 18(1) of the Military Service Act); (ii) An active duty serviceman, even if the service period has ended, has the duty to respond to a call for military force mobilization in a national emergency by transferring to reserve service (Article 5(1)2 and Article 44 Subparag. 1 of the Military Service Act); and (iii) Those assigned to reserve service shall have the duty to respond to a call for assembly or mobilization to participate in annual training that does not exceed 20 days over the course of roughly eight years (Articles 3(1)2 and 6(1) of the Reserve Forces Act). According to the Military Code of Conduct (amended by Presidential Decree No. 24077, Oct. 28, 2014) by delegation from the Military Service Act and the Military Personnel Management Act that was legislated for the purpose of regulating basic matters related to a soldier’s military life: a soldier has the duty to faithfully perform his duties even though it may be dangerous (Article 7(1)); a soldier has the duty to comply with the “rule of war” in the case of war (Article 10-2(1)); a soldier has the duty to not deviate from his base (Article 12); a soldier has the duty to follow the command of his superior officer (Article 23); a soldier has the duty to respond to a call for mobilization in a national emergency (Articles 26 and 27); a soldier has the duty to live in a tight quarter with other fellow soldiers (Article 29(1)); and a soldier shall be proscribed from engaging in acts that disturb the performance of duties or undermine military unity on the grounds of a religious dogma or a religious life (Article 32).

Furthermore, as a means to enforce the performance of such duties, the Military Criminal Act (amended by Act No. 12232, Jan. 14, 2014) prescribes as follows: a sentry who breaks away from his or her station of defense in the face of the enemy shall be sentenced to death or punished by imprisonment with labor for an indefinite term or for a term of not less than ten years (Article 28 Subparag. 1); a person who neglects his or her duty shall be punished by imprisonment with labor for an indefinite term or for a term of not less than one year (Article 35 Subparag. 3); a person who resists or disobeys a legitimate order of his or her superior in the face of the enemy shall be sentenced to death or punished by imprisonment with labor for an indefinite term or for a term of not less than ten years (Article 44 Subparag. 1); and a person who temporarily leaves his or her place of service or a designated place without permission shall be punished by imprisonment with or without labor for not more than one year or by a fine not exceeding KRW 3 million (Article 79).

In addition, the Military Service Act heavily punishes those who attempt to either avoid military service duty or who performs such duty in place of another by stipulating as follows: any person who enlists in the military or complies with a call, in place of a person to be enlisted or called after receiving a notice, shall be punished by imprisonment with labor for at least one year but not more than three years (Article 88(2)); any person who undergoes a draft physical examination, follow-up draft physical examination, physical examination, or physical examination for confirmation on behalf of a person liable for such examination shall be punished by imprisonment with labor for not less than one year but not more than three years (Article 87(1)); and any person who deserts, absconds, etc. with the intention of having military service reduced or exempted shall be punished by imprisonment with labor for not less than one year but not more than five years (Article 86).

As can be seen, an active duty serviceman (military service obligor) are mostly young men in their 20s and 30s who are required to enlist by either having to temporarily suspend their academic studies or pass up the opportunity to find steady employment or receive occupational training for two years or more, which, in turn, also imposes considerable economic burden. Also, in the process of adapting to the strict chain of command and poor military service environment, they tend to suffer from severe psychological distress and mental conflict, and are constantly exposed to serious risks that can harm their body and threaten their life from having to handle firearms and explosives while undergoing repetitive training and combat operations during the service period and the reserve service transfer period. Despite a sense of loyalty to one’s country and a sense of responsibility to the community, given the substantial physical, psychological, and economic burden and risks accompanying the performance of military service, the desire to be exempted from performing such duty, if given the chance, is strong among those who are obliged to enlist in active duty service. As a human being, this is a very natural feeling to have. Taking the above under consideration, the Military Service Act stipulates the duty of military service as a duty that is irreplaceable under any circumstances.

(D) As a way to enforce the performance of military service duty, the Military Criminal Act has a penal provision, and statutory punishment is heavily imposed similar to that of other criminal offenses in line with the national purpose or public interest. Insofar as the level of military manpower, military strategy or weaponry remains intact to sustain the current national defense power, the exemption of one person from enlistment in active duty service consequentially leads to the substitution and division of military service duties to another military service obligor. However, in the event of invasion by enemy forces, a soldier performing the duty of military service has the duty to bear firearms and engage in combat by putting his life and body at risk, and cannot send another person to the battle line while one stands back. This is what sets the duty of military service apart from other national duties as well as public-interest duties, and is the reason for the need to ensure constitutional justification in the process of imposing and performing such duty, as well as the need for equality based on a rigid set of criteria.

For the purpose of evading any and all physical, psychological, and economic burden or risks that may inevitably occur in the process of performing the duties as an active duty serviceman, it is a well-known fact that law-evading and illegal acts using extreme means to evade military service (such as renunciation of nationality, intentional self-harm or document forgery) are frequently occurring within our society regardless of social class or economic rank.

Under the instant penal provision, imprisonment with labor is the harshest form of sanction against violation of a national duty. That said, regarding acts of avoiding military service without any “justifiable cause” as subject to considerable social criticism and applying rigorous punishment against such violators is justifiable (see, e.g., Supreme Court Decision 2005Do4083, supra). The Military Service Act’s imposition of administrative penalties, such as limiting employment in government agencies or restricting various government-approved businesses (Article 76(1)-(2)), against military service evaders can be understood in the same context.

(E) The Majority Opinion asserts that enforcing the performance of military service by imposing sanctions, such as criminal punishment, against conscientious objectors is an excessive restriction of fundamental rights and therefore, unconstitutional and unlawful.

Yet, no instances arose where a person gave up one’s religious belief or faith due to criminal punishment based on the instant penal provision. As such, unless evidence materializes to support the following ― whether a person waived his decision for refusing military service that was formed and maintained based on his genuine conscience in anticipation of criminal punishment or likelihood of criminal punishment (and if so, the number of persons) and whether imposing a certain degree of heavy criminal punishment against a person attempting to refuse military service based on his conscience may actually result in that person’s self-destruction of the value of existence as a human being upon having given up his genuine conscience as to objecting military service ― the Majority Opinion’s position itself not only lacks logic but also contradicts conventional wisdom and sound common sense.

(F) Nevertheless, if a court were to exempt criminal punishment on the ground that conscientious objection falls under “justifiable cause” and permits the same, this is likely to drive a considerable number of people obliged to serve in the military, who had been unable to evade compulsory military service due to various disadvantages (including criminal punishment) and waiting for the opportunity, to do just that by asserting conscientious grounds. In particular, the foregoing is a serious concern amid the current situation where alternative military service, etc. is not in place that ensures equivalence to the various risks or burdens accompanied by having to perform the duty of military service. Moreover, there lies the risk of the sudden dismantling of the foundation of military service administration that has steadily remained intact based on the principle of equal sharing of military service burden. Furthermore, this may also weaken the overall morale of military officers who honor the duty of military service as a service and dedication to one’s country and society and who are faithfully performing their duties, thereby undermining the nation’s momentum of defending our homeland. Taking note of the fact that South Korea and North Korea are still technically at war and the security atmosphere fueling tension and ramping up military pressure on the Korean Peninsula, legalizing conscientious objection may turn the public’s trust into distrust over domestic peace and security that have been well sustained based on credible normative and policy measures relating to military service. Amid uncertainties over national security, the realization of constitutional values, that is, guaranteeing fundamental human rights only feasible based on sustainable peace and security, may become remote.

(G) The Majority Opinion opines that the recognition of conscientious objection would not impede efforts to ensure national security by citing the following as its rationale: the number of people obliged to serve in the military who refuse to do so on conscientious grounds stands at roughly 600 each year, and the number does not appear to be sharply rising and remains relatively smaller than the total number of military service obligors. However, what should not be overlooked is that the above was the result of criminal punishment pursuant to the instant penal provision and additional sanctions being regarded as considerably burdensome, similar to performing military service, and exhibiting effectiveness in preventing those tempted to commit unlawful acts to evade military service.

(3) Recognition of conscientious objection and normative confusion

(A) The Majority Opinion purports that free democracy functions according to the principle of majority rule but the same can be justified only when premised on the embracement and tolerance of the minority, and that doing so would not significantly impede the efforts toward preserving national security or defending our homeland. At the same time, the Majority Opinion asserts that, even prior to the introduction of the alternative military service, a conscientious objector who satisfies certain requirements based on the interpretation of “justifiable cause” should be exempt from criminal punishment according to the instant penal provision.

(B) However, in light of the cited public survey results as above, most Koreans are still opposed to the social acceptance of conscientious objection underpinned by a religious dogma, and express negativity toward attempts to relieve such conscientious objectors by way of introducing the alternative military service system. This is not simply an output of an instrumental framework (such as the Military Service Act) or a legal order. As seen earlier, such public sentiment originates from our nation’s historical, religious, and cultural tradition of respecting religious diversity and not being governed by a specific religious ideology and endeavoring to harmonize religious ideologies and secular values; the unique security atmosphere of the Korean Peninsula that is unseen in other countries; and the notion, perception or value among the constituent members of our society regarding the division or performance of military service duty based on the universal conscription system and the compulsory draft system as a service or dedication to the nation.

Although having been a controversial topic in society, conscientious objection has been recognized among military service obligors as well as most constituent members of society as an obvious illegal act that can in no way be included as a “justifiable cause” under the instant penal provision.

A court, which makes the final decision on the anti-value and unlawfulness of an act, disregards such background and reality and does not dole out criminal punishment against conscientious objectors by deeming conscientious objection to fall under the foregoing “justifiable cause,” the adverse effects and social ripple effects arising therefrom will not be confined to this case alone. Unlike the present where a refusal of military service on a conscientious ground is lawful and justifiable, and, based on such non-criminal nature, where most conscientious objectors are confined to a very small number of believers of a specific religious sect (Jehovah’s Witness), there is no guarantee that there will be those converting their religion to the same to be exempt from military service. In view of the ideology of Christianity in which the core is disseminating the Christian doctrine through missionary work, such inference cannot be regarded as impractical. Furthermore, albeit the refusal of military service is not demanded according to the generally-accepted doctrine of an individual’s religion, the likelihood of the sharp rise in the number of people seeking to justify military service objection citing pacifism and respect for life that most religions embrace or one’s own values and views (regardless of a specific religion) in the same context as that of existing conscientious objectors cannot altogether be ruled out.

In Germany, the number of conscientious objectors merely stood at hundreds immediately following the legalization of conscientious objection through the introduction of the alternative military service system while operating the compulsory conscription system; however, up until 2010, which was right before the transition to the volunteer conscription system, the number hugely increased to roughly 130,000 each year. In the case of Taiwan where the security environment is similar to that of Korea and is benchmarked as a country that successfully legalized conscientious objection, between 2001 (year following the introduction of the alternative military service system) and 2017, the number of people performing alternative military service ranges from 10,000 to 26,000; during the same period, only scores of men performing alternative military service objected to military service on religious grounds. While the significance and substance of such statistics vary depending on each country’s unique military service system and historical, religious, and cultural traits, the obvious fact is that the number of people performing alternative military service regardless of religion substantially increased following the legalization of conscientious objection.

(C) According to our Constitution, “… there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status” (latter part of Article 11(1)) and “No privileged caste shall be recognized or ever established in any form” (Article 11(2)). If pacifism and respect for life that conscientious objectors hold sacred also accord with our constitutional values, then the same, irrespective of specific religion or sect, ought to be shared by as many constituent members of society as possible. Doing so would be arriving at the conclusion that those objecting to military service on conscientious grounds, etc. should be accepted in entirety. If social consideration and protection based on such constitutional values were to be confined to only certain conscientious objectors who follow a specific religious doctrine, exempting criminal punishment against conscientious objectors can only but be regarded as a lopsided way of protecting followers of a specific religion or an unfair exemption of military service duty. Moreover, it would be difficult to avoid criticism that legalizing conscientious objection is unconstitutional, inasmuch as the Constitution explicitly proscribes discrimination in social life based on a religion and establishment of a privileged caste.

(D) The Majority Opinion’s logic is the same as stating that conscientious objection ought to be regarded as a universal and general concept, not a specific ideology or conviction of the society’s minority group, by granting normative justification and legality of conscientious objection. If that is the case, it is apparent that the requirement to justify the need to protect conscientious objectors, i.e., the premise that “inasmuch as conscientious objectors comprise only a minority in our society, permitting conscientious objection is unlikely to cause shortage of draftee resources for military service, and thus, disrupt the operation of the military service system and impede efforts toward the preservation of national security and the defense of our homeland” can no longer be upheld. The Majority Opinion includes a critical error in its logical structure that leaves room for doubt as to its reasonableness, and therefore, can be deemed as a contradictory legal and logical argument.

(4) Relationship between conscientious objection and duty of national defense

(A) While overlooked or not clearly revealed in the Majority Opinion’s logic, the core or substance of this case pertains to the clash and conflict between guaranteeing fundamental rights and enforcing the performance of fundamental duties.

(B) In the preamble, the Constitution presents “afford equal opportunities to every person in all fields […] and help each person discharge those duties and responsibilities concomitant to freedoms and rights” as the constitutional ideology and declares as the basic principle that “All citizens shall be equal before the law” (main text of Article 11(1)). Also, the Declaration on the Rights of Man and the Citizen, which most countries refer to as the normative model for guaranteeing fundamental rights including Korea’s Constitution, provides that “Liberty consists of doing anything which does not harm others: thus, the exercise of the natural rights of each man has only those borders which assure other members of the society the fruition of these same rights. These borders can be determined only by the law” (Article IV).

Meanwhile, in a previous case relating to the issue of religious freedom, the Supreme Court determined that “In a predictable situation where there lies the risk that the Victim, a minor, may die if not receiving blood transfusion, the Victim’s mother cannot be deemed as having a justifiable right to refuse blood transfusion for her child on the ground of her own religious faith, etc. and thus causing the Victim’s death. In such case, punishing the Victim’s mother for the offense of death caused by abandonment can be deemed as neither constituting a justifiable act, which is an exercise of the right to liberty, nor contravening the constitutional provision guaranteeing the freedom of religion” (see, e.g., Supreme Court Decision 79Do1387, Sept. 24, 1980). In another case, the Supreme Court ruled that: “Where a religious-affiliated school provides education in the form of propagating the tenets of a religion to students who were compelled to attend the specific school based on the State’s high school education equalization policy, the relevant education provided may be deemed as unlawful if going beyond the scope of universal and neutral education that is acceptable in light of the society’s sound common sense and legal sentiment” (see, e.g., Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010).

Meanwhile, the Constitutional Court has repeatedly affirmed that “In regards to performing the duty of national defense materialized by the Military Service Act, even if the fundamental rights of that obligated party may be restricted in various aspects, this is predicated via the provision on the duty of national defense under the Constitution, and thus, is not a special sacrifice made by an individual for a State or a public-interest purpose” (see, e.g., Constitutional Court en banc Decisions 98Hun-Ma363, Dec. 23, 1999; 2006Hun-Ma328, supra).

However, as evidently revealed in the foregoing, the instant conscientious objection case, unlike the blood transfusion refusal case, does not relate to a State intervening and leaning to one side in a situation where the freedom of religion of a specific individual or minority group that has no relevance with the majority of societal members collides with other fundamental rights or individual legal interests. Moreover, in contrast to the religious-affiliated school case, the pertinent case on conscientious objection does not relate to a State intervening in the free religious activities of a minority group to realize a specific public-interest and policy-based objective (such as education) and imposing a duty or forcing the performance of the same that goes against their religious belief and conviction. The substance of this case deals with the issue of whether all constituent members of a community state, including conscientious objectors, who are entitled to share the constitutional value of being guaranteed fundamental human rights are fulfilling their self-responsibility through equally sharing the burden of and fairly performing the duty of military service according to normative justification within the framework of the Constitution.

As noted in the Majority Opinion, the democratic majority who govern a community state based on ideology does not seek to unilaterally convey their intent and demand sacrifice by forcing individuals or the social minority group, via applying sanctions such as criminal punishment, who follow a religious doctrine in contrast with their established system to perform a duty. Nor should it be viewed as a State imposing criminal punishment and other sanctions against individuals following a specific ideology or religion regardless of key public-interest objectives (e.g., national security) and forcing them to either waive or change their inner-formed conscience via indirect expression, thereby wrongfully intervening or interfering with said individual’s preservation and maintenance of conscience.

(C) From a constitutional value or a public interest standpoint, the instant case and the two cases aforementioned have equal weight. In the two previous cases, the Supreme Court has explicitly declared that the freedom of religion or the freedom of religious conscience formation of an individual or a juristic person who is governed by a religious faith may be considerably restricted. Along with such established legal doctrine, in full view of the following ― immense burden and risk accompanying the performance of military service, difficulty of substituting military service, demand for the Military Service Act to minimize military service exemptions and ensure transparency, the constitutional ideology emphasizing responsibility based on freedom, the general principle of justice and equity, etc. ― the authority to decide whether to exempt military service of certain constituent members of society asserting conscientious objection ought to be deemed as going against the majority of societal members who will be burdened with having to share the military service as a result.

To exempt criminal punishment against conscientious objectors, a clear shift in attitude among the majority of the public should be observed, not to mention the need to generate an official social consensus through the National Assembly’s legislative process, which complies with the constitutional norm.

(5) Improbability of judicial examination as to genuine conscience

(A) The Majority Opinion states that, albeit prior to the introduction of the alternative military service system, if the requirements for acknowledgment of conscientious objection are confined to a dire and specific conscience under which going against it would be the self-destruction of one’s value of existence as a human being and that inner-formed conscience is devout, firm, and sincere (hereinafter “genuine conscience”), and the courts are able to determine genuine conscience based on rigid examination, then the issues pointed above may be avoidable including the sharp rise in the number of conscientious objectors for the purpose of evading military service. Furthermore, the Majority Opinion is of the view that the existence or nonexistence of “genuine conscience” can be determined by way of proving indirect facts or circumstantial evidence that are relevant to conscience in light of the nature of things (dererum natura), which is similar to the method of proving the criminal intent as a constituent element of crime, given that objectively proving a person’s inner conscience is improbable. In the case of conscientious objection to military service on a religious faith, the Majority Opinion presents the following as key indirect facts or circumstantial evidence to determine the existence of “genuine conscience”: the religious creed the conscientious objector believes in; whether refusal of military service is ordered by that religious dogma; whether such believers are actually objecting military service; whether said religion recognizes the conscientious objector as an official member; whether the conscientious objector is familiar and complies with the basic tenet; and whether the assertion of conscientious objection solely or mainly follows such religious doctrine. On such basis, the Majority Opinion states that the repeated instances where people possessing conscientious belief identical to that of the Defendant are already serving a prison sentence on the ground of conscientious objection can serve as an affirmation element for consideration.

(B) The Criminal Procedure Act, underpinned by the no evidence, no trial principle and the principle of free evaluation of evidence, provides that the recognition of a criminal fact shall be based on evidence while probative power shall be determined by the discretion of a judge. However, these principles should be construed as adequate to substantive discovery of the truth, rather than as the citation of a judge’s autonomous judgment. Even if the recognition of a fact is the prerogative of a fact-finding court, whether a criminal fact is acknowledged ought to be determined according to logical and empirical rules; and rejecting evidence with sufficient evidentiary power without any justifiable reason or admitting and using evidence that obviously contravenes an objective fact without any logical basis exceeds the bounds of the principle of free evaluation of evidence, and thus, constitutes violation of law. Also, hastily determining the degree of proof absent any reasonable doubt without proceeding to deliberate on matters necessary for logical argument to determine the existence or absence of a crime is also unlawful since it goes against the fundamental ideology of the Criminal Procedure Act aspiring to discover the truth and ensure a fair trial (see, e.g., Supreme Court Decision 2015Do17869, Oct. 13, 2016).

Meanwhile, “conscience” that the Constitution seeks to protect under the freedom of conscience refers to a “strong and genuine voice within guiding us that one’s value as a human being will be destroyed if one does not act according to his or her conscience; that being said, when determining right and wrong, the outward expression of such conscience ought to be dire and specific.” The freedom of conscience formation and the freedom of conscientious decision is the so-called absolute freedom that is neither restricted nor requires restriction insofar as the same remains within (see, e.g., Supreme Court Decision 2005Do
4083, supra).

Based on the foregoing legal doctrine on the freedom of conscience, with respect to conscientious objection, “genuine conscience” that warrants protection should be an absolute freedom of conscience formed and decided within the inner realm prior to being externally expressed when forced to perform the duty of military service. However, the meaning of “genuine conscience” can only be logically determined based on the subjective perspective of the subject thereto. “Genuine conscience” is not often objectively revealed; moreover, its existence is not easily shared to a third party through the presentation of objective evidence.

Therefore, following the Majority Opinion’s conclusion, even if “genuine conscience” with respect to refusal of military service may be deemed as constituting “justifiable cause” as prescribed by the instant penal provision, such conscience only remains in the inner realm and thus, objective reenactment or proof of its existence or absence as well as scientific and rational disproof or denunciation of such assertion per se is extremely difficult or nearly impossible. That being said, “genuine conscience” is not an appropriate subject for objective proof according to the empirical and logical rules established in the criminal justice system and based on rationale.

Even if there may be instances where there exists such structural and substantial flaw in proving genuine conscience, thereby resulting in the prosecution’s failure to sufficiently prove the existence or nonexistence of the same, a judge may heedlessly acknowledge the existence of “justifiable cause” pinpointing the cause to lack of efforts to prove a case by the prosecution and acquit the defendant. Moreover, according to the Majority Opinion’s legal doctrine, notwithstanding the fact that a defendant who is responsible for presenting prima facie evidence that there exists “genuine conscience” ahead of a prosecutor’s proof of the relevant case, there is a possibility that a judge may convict the defendant for refusing military service by acknowledging the nonexistence of a “justifiable cause” by reasoning that there was insufficient prima facie evidence without proceeding to deliberate all necessary matters. This is not the appropriate attitude of the judiciary that is tasked with the mission to discover substantive truth and ensure fairness in trial proceedings, and is also regarded as trial proceedings going against the fundamental ideology of the Criminal Procedure Act.

(C) The legal doctrine pertaining to the criteria and method for examining “genuine conscience” presented by the Majority Opinion appears to have derived from the legal doctrine on the so-called “indirect proof” relating to the method of proving the criminal intent (subjective constituent element of a crime) that was presented in Supreme Court Decision 2016Do15470 Decided January 12, 2017, etc. The inherent substance of the foregoing legal doctrine is that if a defendant denies a criminal intent, which is an inner intent to carry out a criminal fact that is outwardly revealed, indirect proof is possible by inferring criminal intent through proving indirect facts or circumstantial evidence of considerable relevance on the ground that there is no method to objectively prove the same.

Yet despite following such legal doctrine on indirect proof presented by the Majority Opinion, if indirect facts have been proven (that is, a conscientious objector has been religious for a prolonged period and had actively carried out religious activities), the mere facts a judge can fairly acknowledge are that “a conscientious objector had inner intent to maintain a religious faith for a long period of time and to actively engage in religious activities” and thus, “a conscientious objector is more religiously devout than other people.” Going beyond that and attempting to infer the existence of a deeper “genuine conscience” formed within an individual’s inner realm is difficult. As anticipated by the Majority Opinion, a conscientious objector may have led a prolonged religious life and actively engaged in religious activities based on one’s “genuine conscience” but, on the other hand, it is also possible that a conscientious objector may have led a religiously devout life due to a realistic and environmental motive to live up to the expectations and interests of family and friends, or due to psychological pressure that is not easily revealed such as wielding of power or threat. If the latter aspect is even remotely intertwined in the back of a conscientious objector’s mind, then the aforementioned indirect fact cannot be regarded as a “genuine conscience” coming from the absolute and pure voice within as stated by the Majority Opinion. This is likewise true regarding other indirect facts presented by the Majority Opinion. That said, even if each indirect fact is proven, this is insufficient to definitively prove that a conscientious objector’s mind is wholly governed by such “genuine conscience” alone.

The Majority Opinion’s logic appears to have overlooked the point that the subject matter of proof in the instant case is the actual existence of “conscience” that forms the inherent motive of a person’s action and remains within that person’s inner realm, unlike criminal intent that is easily revealed through a criminal offender’s action. As regards indirect proof, the criminal intent deemed as the ultimate subject matter of proof includes both definitive intent and willful intent (see, e.g., Supreme Court Decision 2016Do15470, supra). Given that the recognition of criminal intent is premised on the existence of a specific criminal fact that is objectively revealed, the scope of indirect facts required to acknowledge criminal intent or the ability to prove the same can easily be determined through relativity with the specific criminal fact at issue. However, conscience is an entirely different issue. Of note, “genuine conscience” that is determined according to a stringent criteria as stated in the Majority Opinion possesses an obvious substance (deep and firm belief that governs an individual’s overall thoughts and actions, and if not followed, may result in the destruction of one’s value of existence as a human being), which is neither flexible nor invariable, not false, or neither conciliatory nor tactical depending on circumstances. In short, unlike criminal intent, genuine conscience cannot be recognized in terms of whether or not there exists willful conscience. Accordingly, no matter how extensively relevant indirect facts are collected and accumulated through trial proceedings, inferring its credibility is next to impossible or nearly improbable. That being said, the Majority Opinion’s position that the legal principle on indirect proof can be used as a means to prove “genuine conscience” lacks rationale.

(D) While the Majority Opinion deems that conscientious objection based on religious motive as well as ethical, moral, philosophical or other similar motives are permissible, it only presents matters relating to religious activities as specific criteria for determining genuine conscience.

Yet as examined above, if determining genuineness of such conscience even in the case of a military service obligor asserting conscientious objection based on a specific religious ideology or doctrine proves to be difficult, tracking the process of the formation of an extremely personal and subjective conscience and identifying military service evaders hiding behind a non-religious conscience through trial proceedings are even more difficult and nearly impossible.

Furthermore, “conscience” that is protected as the freedom of conscience under the Constitution may be treated differently depending on the changing of the times or cultural context, and may also change among each individual rather than remaining eternal. Therefore, whether a person has led a short or a long period of religious life cannot serve as an absolute standard for determining the genuineness of conscience. If the period when conscience was either formed or when conscientious decision was made based on a particular experience is near the timeline when a person began to express his objection to military service, this leaves room to question as to whether it is feasible to gather objective materials to identify the causal relationship of conscience formation or genuineness, etc.

The record reveals that, among the petitioners related to the case on the filing by Nonindicted 1, etc. of individual communications alleging violation of rights to the United Nations Human Rights Committee (UNHRC), Nonindicted 2, Nonindicted 3, and Nonindicted 4 became a Jehovah’s Witness after being baptized eight days, five months, and eight months prior to receiving the written draft notice, respectively (see Sections 2.35, 2.45, and 2.32 of the UNHRC’s Views pertaining to Nonindicted 2, 3, and 4). The aforementioned petitioners who were baptized were confirmed to be followers of a religious sect that is widely known to be related to conscientious objection as stated in the Majority Opinion. However, in comparing the period that each written draft notice was received, such fact alone is insufficient to deem that the petitioners’ genuine conscience in objecting to military service was clearly exculpated, and thus, shows that the doubt raised earlier is not groundless.

In particular, there may be cases where a person makes a conscientious decision based on the respect for life and pacifism after witnessing the devastating aftermaths of war and refuses to perform military service. Or there may be instances where a person, based on the simple recommendation by a family member or relative, converts to a specific religion that follows the doctrine of conscientious objection and, based thereon, leads a religious life not yet having formed a “genuine conscience” as referred to in the Majority Opinion before receiving a notice of enlistment in active duty service following the draft physical examination, but asserts conscientious objection according to external evidence related to one’s religious life. It is next to impossible for a third party to identify the causal relationship of conscience formation or genuine conscience that serves as the basis for a conscientious objector’s decision-making.

(E) In full view of the inherent issues relating to the criteria for examining and the procedural method for determining the existence or absence of genuine conscience with respect to military service objection, it would be reasonable to deem that such criteria and method is insufficient and incomplete to verify a conscientious objector’s “genuine conscience”to the extent similar to the discovery of substantive truth aspired by the Criminal Procedure Act. Therefore, the foregoing criteria and method can only be regarded as compromising and contingent that comprehensively reflects policy-based considerations, namely, normative and regulatory acceptance of conscientious objection, perception and reaction among societal members as to the degree of acceptance, shortage of military manpower and likelihood of alternative military service that are to occur from the direct and indirect exemption of military duty of conscientious objectors, and adverse impact on the morale of the army in general and on national security and national defense. Examining and determining “genuine conscience” associated with military service refusal without a special standard or method in place is a difficult task to fulfill by the judiciary whose mission is to discover substantive truth. The Majority Opinion appears to have overlooked this point.

Meanwhile, the absence of standards and methods for accurately determining the credibility of “genuine conscience” regarding objection to military service in trial is, if following the Majority Opinion’s position, the same as a conscientious objector, who is primarily responsible for providing prima facie evidence, not being able to accurately predict the conclusion of a trial, and thus, placed at a disadvantage in terms of exercising the right of defense. There are instances where a conscientious objector who is not a member of a specific religious sect but has formed a “genuine conscience” as to refusing military service through extensive reflection and agony, and such genuine conscience is not acknowledged. On the other hand, there may be cases where, based on convincing evidence that a person was a member of a specific religious sect for a prolonged period, conscientious objection is recognized even though the existence or nonexistence of “genuine conscience” has not yet been verified. The public’s distrust in trial proceedings as a result is undeniable.

The matter of establishing the standards and methods for determination is left to the National Assembly that has the discretion to formulate major national policies based on public feedback. Moreover, it would be reasonable to have an independent committee with expertise in the operation of the to-be-introduced alternative military service system, etc. to undergo preliminary examination on the existence or absence of “genuine conscience” regarding conscientious objection.

(6) Inconformity or confusion with the legislation of alternative military service system

(A) In Constitutional Court en banc Decision 2011Hun-Ba379, etc., the Constitutional Court urged the National Assembly to revise the current law to include the introduction of alternative military service that is equivalent to the duty of military service for conscientious objectors by December 31, 2019. However, the Majority Opinion separates the issue of permitting conscientious objection and the issue of introducing the alternative military service system as there is no logically consequential relationship.

(B) As regards the introduction of the alternative military service system for conscientious objectors, several legislative bills have been proposed by the National Assembly. One good example is the Bill for Partial Amendment of the Military Service Act (Bill No. 3582), which was proposed around November 15, 2016 and included the following: (i) revise Article 5 (Categories of Military Service) to include “alternative military service” under “supplementary service”; (ii) newly insert a provision on alternative military service personnel under Article 33 (Extension of Service, etc. of Social Work Personnel); (iii) have the Head of the Military Manpower Administration supervise or intervene in the relevant duties; (iv) confine the scope of duties of alternative military service personnel to “work related to the protection, treatment, recuperation, training, self-support, counseling, and social welfare of children, the elderly, the disabled, and women” or “work related to public interests such as firefighting, medical care, and rescue” and disprove the performance of duties that require possession of anti- personnel weapons; and (v) set the period of service 1.5 times longer than that of military service.

The duties of alternative military service to which legislation is pending in the National Assembly pertains to pure social volunteer work in the private sector, which is starkly different with the duties of military service as seen earlier, and the period of service does not appear to have hugely been extended compared to that of military service. In light of the above, we need to closely observe the progress of whether an alternative military service system can be introduced within the extent that does not undermine the principle of equal sharing of military service burden and that is equivalent in terms of the degree of performing military service duties as an active duty serviceman. Under the notion of ensuring such equivalence, setting the period of alternative military service longer than that of the period of active duty service may reduce the likelihood of military service evaders hiding behind conscientious grounds from enlistment. However, if the duties of alternative military service are excessively burdensome, this may lead to a different controversy of either infringing the freedom of conscience or contravening the principle of equity.

Jehovah’s Witnesses, including the Defendant of this case, objects to the direct and indirect formation of military force, obedience of and cooperation with military operation orders, military training and military support, and working in private sectors subject to instruction or supervision by a military-related organization. However, in the foregoing Revision Bill, alternative military service is regarded as a type of military service system under the Military Service Act that falls under the jurisdiction of the Defense Minister and allows the Head of the Military Manpower Administration to intervene in the system’s operation and management. Following the introduction of the alternative military service system based on such content, if a conscientious objector refuses alternative military service on the grounds of conscientious decision by pointing the above as an issue, this leads to the conclusion that such conscientious objector will inevitably face criminal punishment for having committed the offense of avoiding alternative military service, which is the same as the conscientious objection to military service.

(C) Setting the particular details of alternative military service, equivalent to that of compulsory military service, and the procedure for performing such alternative military service is extremely complicated. Determination through weighing and balancing of the burden of compulsory military service and the burden of alternative military service from a general and abstract level by the National Assembly is insufficient. Coordination of various positions among interested parties based on public feedback as well as extensive research and review to ensure practicality and fairness are required. If alternative military service were to be implemented without undergoing sufficient procedural discourse, this would naturally open the door for criticism that it will distort social unification and cause other conflicts and confrontations. It would not be a simple matter that can be resolved on the premise that there exists a mature level of embracement and tolerance within our society.

Without considering the current state and discussions as to the legislative bill on alternative military service to which only a contour exists and even that is a bone of contention, based on the notion that whether to introduce alternative military service and whether to punish conscientious objectors are separate issues as stated in the Majority Opinion’s logic, it would be inappropriate to determine whether conscientious objection constitutes “justifiable cause” as prescribed in the instant penal provision ahead of the introduction of the alternative military service system. Albeit the lower judgment is reversed and the Defendant is acquitted thereafter for the purpose of protecting the Defendant’s “genuine conscience” according to the Majority Opinion’s conclusion, there is a risk of confounding the criminal justice system whereby depending on the content, requirements, and determination criteria of the alternative military service system that is introduced through legislation, the Defendant may be subject to punishment for committing the offense of evading alternative military service.

E. Domestic and foreign circumstances related to conscientious objection

(1) Domestic normative status

(A) Following the previous en banc Decision on conscientious objection, the Supreme Court has thus far been consistent that conscientious objection is subject to criminal punishment.

(B) The positions of the Constitutional Court, the National Human Rights Commission, the Ministry of Justice, and other relevant institutions do not stray from the Supreme Court.

Immediately following the previous en banc Decision of the Supreme Court, the Constitutional Court handed down a ruling on the issue of conscientious objection in Constitutional Court en banc Decision 2002Hun-Ga1 according to which the Constitutional Court squarely denied the so-called “right of conscientious objection” by reasoning that the freedom of conscience under Article 19 of the Constitution is not construed as an individual’s right to refuse to perform the duty of military service. Moreover, while stating that the unconstitutionality of penal provisions relating to conscientious objectors and the need for punishment are closely related to the issue of whether to introduce the alternative military service system through legislation, the Constitutional Court made it clear that the above issue is a matter to be resolved by the legislative branch, thereby according with the purport of the Supreme Court’s previous en banc Decision. In contrast to the Majority Opinion, the Constitutional Court deemed that the issue of whether to exempt the instant penal provision against conscientious objectors (that is, whether the grounds for refusal of military service based on conscience constitutes “justifiable cause”) was closely related to the change in circumstance (i.e., introduction of the alternative military service system through legislation) and that introduction of the same ought to be a prerequisite. Following the recent constitutional nonconformity decision regarding the provision on the types of military service under Article 5(1) of the Military Service Act, the Constitutional Court has thus far maintained its stance as seen in Constitutional Court en banc Decision 2011Hun-Ba379, etc.

In upholding the foregoing position of the Constitutional Court, other relevant institutions (such as the National Human Rights Commission and the Ministry of Justice) are urging the introduction of the alternative military service system for conscientious objectors; setting aside the need to introduce such system, they do not appear to be arguing the need to exempt criminal punishment of the same.

(C) In the same vein, the Defendant in this case also argues the unconstitutionality or unlawfulness of the same in the grounds of appeal, premised on the fact that an alternative military service equivalent to compulsory military service is introduced.

(D) Against such urgent demand from all levels of society for the legislative branch to introduce the alternative military service system for conscientious objectors, the National Assembly, on more than ten occasions following the Supreme Court’s previous en banc Decision, has proposed a number of bills on amending the Military Service Act centering on the introduction of the alternative military service system but no concrete progress or meaningful discourse have been observed thus far.

We attribute the above to the following. Although the National Assembly, as a representative body of the public under the Constitution and with broad legislative formation power, has continuously dealt with the issue of conscientious objection, it does not seem to have reached a solid stance on whether to grant legality and justifiability of conscientious objection from a community state perspective, the impact on national security, etc. upon the introduction of the alternative military service system, and public consensus on key contents of alternative military service. This also sheds light on the fact that in view of social convention, alternative measures for conscientious objectors have yet to be in place rather than exempting the same from performing the duty of military service. Nonetheless, the Majority Opinion’s conclusion that the grounds for conscientious objection ought to be included under “justifiable cause” of the instant penal provision can be said to deviate from the layman’s reasonable determination based on sound common sense.

Over the past few months, several revision bills have simultaneously been proposed by the National Assembly, which is not significantly noteworthy. Rather, such move by the National Assembly to develop ex post measures can be said to have been driven by Constitutional Court en banc Decision 2011Hun-Ba379, etc., supra. That is, in adhering to the purport of the Constitutional Court’s decision, the National Assembly, as the legislative body, has taken the initiative to resolve the issue of conscientious objection.

(E) The allegation in the grounds of appeal that, since the establishment of the Military Service Act, the number of conscientious objectors that have been subject to punishment based on the instant penal provision has neared 14,000 cannot be deemed as a critical element for consideration when determining the need to overturn judicial precedents on criminal punishment. This is an inevitable outcome arising from the rise in the number of law violators in which such act cannot be recognized as legitimate or justifiable. Here, the core issue is the normative justification of the instant penal provision that applies to conscientious objectors, namely, whether there is an obvious shift in social convention or sound common sense to accept conscientious objection as a legitimate assertion. However, even if based on the domestic progress as seen above, no apparent change has been observed to overrule the established position of the Supreme Court in the previous en banc Decision on conscientious objection.

(2) International normative status

(A) Premised on the fact that Article 18 of the International Covenant on Civil and Political Rights (ICCPR) has identical effectiveness with domestic laws, the Defendant asserts that the so-called “right of conscientious objection” is a right derived from Article 18 thereof.

(B) However, neither Article 18 nor any other provisions in the ICCPR explicitly provide that the right to refuse military service based on conscience is acknowledged as one of the fundamental rights. In light of the language of Article 8 of the ICCPR, said Covenant does not require member nations to necessarily acknowledge conscientious objection. The nonexistence of an alternative military service system cannot be the sole basis to constitute a violation of the ICCPR, and the imposition of punishment against a conscientious objector based on the instant penal provision without exemption from military service or opportunity to perform alternative military service cannot be construed as contravening the ICCPR (see, e.g., Supreme Court Decision 2007Do7941, supra; Constitutional Court en banc Decision 2008Hun-Ga22, supra). Moreover, even if the UNHRC proposed a recommendation related thereto, the same cannot necessarily be seen as having any legal binding force (see, e.g., Supreme Court Decision 2014Do7972, Dec. 11, 2014).

Furthermore, solely based on a partly superficial perception that certain countries either abolished the compulsory conscription system or adopted the alternative military service system when determining criminal punishment of conscientious objectors, merely comparing the one-sided and abstract reality of foreign countries and Korea is not an adequate approach in view of the significance and importance of a State’s heavy responsibility of preserving national security and national defense. On the flip side, domestic policy-based decisions ought to be all the more respected given that such decisions are made by considering various factors pertaining to an individual country, such as historical background, security environment, social class and structure, and political, cultural, religious or philosophical values (see, e.g., Supreme Court Decision 2007Do7941, supra).

Meanwhile, in view of the record, the UNHRC’s key argument for accepting the allegation of the petitioners in the case involving petitioner Nonindicted 1, etc. related to the ICCPR is based on the fact that the petitioners’ right of conscientious objection based on religious faith is acknowledged pursuant to Article 18 of the ICCPR.

However, in light of the foregoing legal doctrine, it is difficult for the UNHRC’s view to be recognized as having normative power in Korea; furthermore, one of the pivotal grounds for UNHRC’s argument is the so-called “right of conscientious objection” that the Supreme Court and the Constitutional Court had consistently denied via judicial precedents. That being said, the position of the UNHRC strays from Korea’s normative system in terms of consistency. Accordingly, the above cannot be regarded as convincing evidence to deem that notable international normative changes have occurred.

(C) As revealed in the record, the resolution details of member nations at the UN Human Rights Committee and the UN Human Rights Council meetings, the result of the investigation of Korea by the Office of the UN High Commissioner for Human Rights (UHCHR), the European Union Council’s purport of adopting the UN Charter of Fundamental Rights, the purport of the judgment in the case pertaining to member nations handed down by the European Court of Human Rights (ECtHR) based on the construction of the European Convention on Human Rights (ECHR), etc. that the Defendant cited in the grounds of appeal deviate from Korea’s normative reality, and as such, this Court does not determine otherwise.

(3) Current status of Korea’s national security

(A) The Majority Opinion deems that efforts toward preserving national security and national defense will not be impeded even if conscientious objection is acknowledged.

(B) Previously, the Supreme Court clearly stated that “North Korea is a partner of conversation and cooperation for the peaceful unification of this country. Nonetheless, despite changes in North-South Korea relations, North Korea also has the characteristics of an anti-government organization plotting to overturn our system of free democracy while adhering to the notions of the national unification by communication” (see, e.g., Supreme Court Decisions 2007Do10121, Dec. 9, 2010; 2015Do1003, Apr. 9, 2015). Likewise, the Constitutional Court also deemed as follows: “North Korea and South Korea remain at a military and political standoff amid cease fire, and North Korea assumes a hostile attitude toward and continues to provoke South Korea such as developing nuclear weapons. Against such state of tension, there is a considerable need to take action in advance to prevent any acts that may put our nation’s existence, security, and constitutional order at risk” (see, e.g., Constitutional Court en banc Decision 2016Hun-Ba361, Mar. 29, 2018).

Such determination is based on the court’s awareness of our country’s security environment, that is, the two Koreas remain militarily and politically at a standoff. Furthermore, as of early 2018, the continuing tension on the Korean Peninsula is hugely affecting the political, diplomatic, and security status of neighboring countries, and thus, the possibility of an incidental and regional military collision exists. Such acute security environment of Korea cannot be observed elsewhere in the world.

Given the geographical trait of the Korean Peninsula, which is surrounded by such countries as China, Russia, and Japan, it is extremely difficult to formulate a collective security system based on military and political partnerships with other countries. Against this backdrop, the key to preserving national security and defending our homeland is to expand military spending through continuous financing as well as sustain a certain military size needed to independently exercise the right of self-defense without support from allies.

Such unique geographical security climate of Korea is starkly different from that of most Western nations (such as the United States, the United Kingdom, France, Germany, Norway, the Netherlands, and Canada) that have institutionally accepted conscientious objection early on ― that is, having reduced the burden of procuring military spending and organizing military force from an individual country standpoint by having formulated a collective security system known as the North Atlantic Treaty Organization (NATO) based on sharing a common Christian background and a homogeneous similarity in geographical, political, and cultural environment. Rather, our country’s security situation is similar to that of Russia (following the end of the Cold War and the dissolution of the “Warsaw Treaty Organization” that functioned as the collective security system of the Eastern Bloc, under a confrontational structure with the West and China, Russia is faced with the burden of having to independently establish military power) or Singapore (around the time when Korea was under Japanese colonial rule, Singapore became independent after being formerly ruled by the British Empire and has greater need to secure independent national defense power amid the geographical disadvantage of being surrounded by much more militarily powerful nations such as Indonesia and Malaysia). Of note, Russia is the birthplace of the “Russian Orthodox,” which is a Christian sect and has sustained a strong Christian tradition similar to that of the West, and appears to be accepting conscientious objection in practice by operating an alternative military service system; on the other hand, Singapore has yet to accept conscientious objection as is the case of Korea.

Amid the so-called “period of security transition” in which the international situation and security climate surrounding the Korean Peninsula rapidly and constantly changes and such changes are unpredictable, now, more than ever, is the time to concentrate on strengthening the constitutional legal order and solidifying efforts toward preserving national security and defending our homeland, which is clearly depicted in our nation’s painful and tragic history of having experienced foreign invasion and the Korean War.

(C) When considering such a unique security situation of the Korean Peninsula, the argument for the need to recognize conscientious objection and exempt criminal punishment of conscientious objectors by citing the cases of foreign countries whose security environment is starkly different from Korea, or the argument for the need to ease military service burden for conscientious objectors based on an abstract and hasty judgment that military tension has greatly been reduced compared to the past and peace mood is growing lacks persuasiveness. Should exemption of military service on a subjective ground (i.e., conscience) were to be acknowledged without considering Korea’s unique security climate, this is to further aggravate ideological conflict and tension among the public and threaten national security by weakening the country’s independent defense ability.

(D) The Majority Opinion’s view that permitting conscientious objection will not place national security at risk is based on not having fully taken into consideration our country’s unique security situation. That being said, it also discords with the Supreme Court’s responsibility to uphold the constitutional value and maintain legal order for the preservation of a community state.

F. Conclusion

As regards the meaning of “justifiable cause” under the instant penal provision, the legal doctrine established in the Supreme Court’s previous en banc Decision ought to remain intact as is. Such legal doctrine does not completely accord with the legal reasoning of “justifiable cause” as expressed by the Dissenting Justices. Moreover, no obvious normative and practical changes are observed to deem that the established legal doctrine should be overruled to broaden the scope of “justifiable cause” as mentioned above.

Nevertheless, the Majority Opinion’s position to overrule the previous legal doctrine is to bring about the following concerns: (i) distorting legal stability, which is a pivotal judicial value; (ii) undermining the legislative purpose of the Military Service Act by granting excessive preferential treatment with respect to performing the duty of military service; and (iii) causing conflict and confusion as it considerably deviates from the normative demand for equal sharing of the burden of military service and the public’s expectation. Moreover, the judiciary will not be immune to misconception and criticism that it is de facto exercising legislative power that exceeds the bounds of judicial authority.

Albeit there exists somewhat of an unreasonable or harsh aspect of not applying exceptions of the Military Service Act against certain people obliged to perform military service, such as conscientious objectors, this matter ought to be addressed through the National Assembly’s legislative process rather than be resolved by courts through construction of the provisions of the Military Service Act going against the purpose and function of the same. This conclusion, as repeatedly emphasized in the foregoing, is based on the fundamental principle and responsibility that should be followed as a matter of course in the process of a judicial officer’s statutory construction and exercise of judicial authority.

The lower judgment that convicted the Defendant of the facts charged to the same effect is justifiable. In so determining, the lower court did not err by misapprehending the legal principle on construing the term “justifiable cause” under the instant penal provision. Hence, the Defendant’s final appeal should be dismissed.

For the foregoing reasons, we express our Dissent with the Majority Opinion.

9. Concurrence with the Majority Opinion by Justice Kwon Soon-il, Justice Kim Jae-hyung, Justice Cho Jae-youn, and Justice Min You-sook

We concur with the Majority Opinion’s argumentative basis that conscientious objection falls under “justifiable cause” as prescribed by Article 88(1) of the Military Service Act, and express our views as to the Dissenting Opinion.

A. The Dissenting Justices criticize the Majority Opinion for having suddenly overturned previous rulings and derogating the inherent substance of fundamental rights by unilaterally declaring that, on the premise that conscientious objection is always superior to that of the duty of national defense (constitutionally-
protected legal interest), the freedom of conscience realization by passive omission has absolute superiority above all other values without any reasonable basis. However, such criticism is attributable to misconstruing the Majority Opinion.

The Majority Opinion explicitly stated that the freedom of conscience should not be regarded as unilaterally superior to that of other constitutional values, and, while respecting previous rulings, expressed to the effect that those precedents deeming conscientious objection as not constituting justifiable cause as prescribed in Article 88(1) of the Military Service Act should be overruled by citing new circumstances based on its legal doctrine.

The Majority Opinion’s position is that the freedom of conscience realization should not be easily restricted on the grounds that it is either an external freedom or a relative right. Inasmuch as the freedom of conscience realization by passive omission is closely related to the freedom of inner conscience that comprises the substance of the freedom of conscience, the Majority Opinion also emphasizes that the principles of restricting fundamental rights under the Constitution should be strictly followed even where such restriction is needed. On that premise, the Majority Opinion deems that in light of the current state of conscientious objection and the degree of punishment, etc., permitting conscientious objection and not imposing criminal punishment against conscientious objectors will not hugely impede efforts toward preserving national security and defending our homeland. Nevertheless, continuing to force conscientious objectors to perform military service duties (including participation in military training and bearing arms) and sending them to prison (not the military) for nonperformance is regarded as excessively restricting the freedom of conscience or undermining the inherent substance of the same. In addition, the Majority Opinion states that conscientious objection constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service Act when factoring the ideology of free democracy, i.e., embracement and tolerance of the minority.

B. According to the Dissenting Opinion, the legislative progress needs to be closely viewed given that the issue of conscientious objection is a matter to be resolved through legislation of the alternative military service system. Moreover, even if a defendant were to be rendered an acquittal, he may be subject to punishment again for evading alternative military service depending on the content, requirements, and determination standard of the alternative military system when introduced through legislation, thereby confounding the criminal justice system.

As delineated infra, there exist contrasting views as to the relationship between criminal punishment of conscientious objection and alternative military service. One view is that, insofar as no justification exists to introduce the alternative military service system and said system does not exist, imposing criminal punishment against conscientious objectors is inevitable. Another view is that criminal punishment should not be imposed given that doing so without an alternative military service system in place would be unconstitutional. As can be seen, the absence of an alternative military service system is cited as the reasoning in both cases of asserting that conscientious objectors should be convicted or acquitted. The emerging issue is whether to criminally punish conscientious objection when an alternative military service system is not in place. If there is an adequate system in place, it is highly unlikely that the issue of criminal punishment against conscientious objection will arise. It appears that the nonexistence of an alternative military service system was fully utilized to the best advantage of each side.

Ultimately, as regards the relationship between alternative military service and criminal punishment, the two views only highlighted one aspect of the alternative military service system to justify their view on whether conscientious objectors ought to be found guilty or innocent. Moreover, alternative military service and criminal punishment are not in a logically consequential relationship. Rather, it is tenable to deem that alternative military service will resolve the issue of equal sharing of military service burden, which may arise from permitting conscientious objection.

Recently, the Constitutional Court ruled that “punishing conscientious objectors without an alternative military service system goes against the over-breadth doctrine” and urged the National Assembly to introduce an alternative military service system by December 31, 2019. Accordingly, even if legislation will soon happen, it can neither be a reason to push back a trial nor a basis to render a conviction or an acquittal.

Albeit a not-guilty verdict is handed down as to a conscientious objector, alternative military service can be imposed on the same through legislation, and may be charged with the offense of evading alternative military service upon refusal. However, such conundrum can easily be solved through legislation, and a pending trial cannot be discontinued while awaiting future legislation. Furthermore, insomuch as there is room to acknowledge “justifiable cause” regarding the Defendant of this case, a judgment shall be rendered accordingly.

In a criminal trial, a court has judicial authority to determine guilt or innocence. The principle of a nimble trial is one of the guiding principles of criminal litigation. Regarding a judgment by an appellate court that was appealed, the Supreme Court has the duty to fully adjudicate the relevant case. Adjudication cannot be pushed back while waiting for the legislative branch to come up with a solution. This is all the more true if future legislation does not affect the outcome of a trial.

Young men who should be concentrating on academic studies or making a living and who should be contributing to the nation and society have undergone long-lasting investigations and trials, and are now waiting for the Supreme Court, as the final appellate court, to render a ruling. It is up to the Supreme Court to hand down a final judgment to these young men whose uncertain future is left hanging in the balance.

C. The Dissenting Opinion argues that (i) the purpose of statutory interpretation should in all respects be on finding a concrete reasonableness within the extent that does not undermine legal stability, (ii) the same holds true in cases where “justifiable cause,” which is an indefinite concept, is regarded as the constituent element of crime, and (iii) a court’s formulation of a completely new law unintended by the legislator under the notion of statutory interpretation is wrong.

However, in cases where such indefinite concept (“justifiable cause”) is used in penal provisions, well-grounded reasonableness ought to be emphasized more, and doing so accords with the legislative purport. Our reasoning is explicated below.

(1) Other than Article 88(1) of the Military Service Act (instant penal provision), there are other penal provisions using the phrase “without justifiable cause.” As such, there should be a clear distinction between the provisions that include the foregoing phrase and those that do not. Statutory interpretation begins with the language and text, and this is all the more true when construing a penal provision underpinned by the principle of no crime or punishment without the law. If a statutory provision differs in language and text, then such difference ought to be respected when interpreting and applying the relevant provision.

(2) The difference in the inclusion or exclusion of “justifiable cause” lies in the fact that the existence or absence of a justifiable cause is a key determinant of guilt or innocence. The use of the phrase “without justifiable cause” is not required in the case of malainse (acts that are wrong or evil by nature regardless of statute or law) such as theft, rape, and murder. For instance, the core of criminal assessment regarding an act of stealing another’s property is the existence of an objective fact (i.e., theft). However, in the case of mala prohibita (any action that is criminalized strictly by statute and statutory law), such as discriminatory acts against persons with disabilities (Article 4 of the Act on the Prohibition of Discrimination against Persons with Disabilities, Remedy Against Infringement of Their Rights, Etc.), the phrase “without justifiable cause” may be needed and the absence of the same may at times be regarded as unlawful. For example, the core of a criminal assessment as to a default on pension premium without a justifiable reason lies in the existence or absence of “justifiable reason” rather than the objective fact (i.e., default) (see, e.g., Supreme Court Decision 2006Do6445, Jun. 12, 2008).

As seen in the Majority Opinion, “nonexistence of a justifiable cause” and “justifiable cause” under penal provisions are constituent elements of crime. Therefore, “justifiable cause” is regarded as a ground for excluding the constituent elements, and its structural meaning is completely different from that of the grounds for excluding illegality or the grounds for excluding liability. As regards acts falling under the constituent elements, the grounds for excluding illegality or the grounds for excluding liability are exceptionally recognized from the perspective of overall legal order or based on a layman’s viewpoint (see, e.g., Supreme Court Decisions 2003Do3000, Sept.26, 2003; 2005Do10101, Oct. 23, 2008).However, when determining justifiable cause as the grounds for excluding constituent elements, in light of the principle of subsidiarity and the principle of no crime or punishment without the law, a defendant’s extenuating circumstances may be considered, and, if the nonexistence of a justifiable cause is unclear, then the interpretation needs to be favorable to the defendant.

Moreover, the use of such indefinite concept (“justifiable cause”) in penal provisions in which clarity is vital ought to be understood as having reflected a defendant’s unique circumstance that is difficult to generalize, changing of the times that are difficult to predict at the point of legislation, etc.

Fully viewing the above, penal provisions that include the term “justifiable cause” attain well-grounded reasonableness to the fullest extent possible. Generally, the principle and the purpose of statutory construction are in finding such reasonableness within the scope that does not undermine legal stability (see, e.g., Supreme Court Decision 2006 Da81035, Apr. 23, 2009). Concrete reasonableness may be emphasized more when interpreting penal provisions that stipulate justifiable cause, which is the very reason for using that term in penal provisions.

Accordingly, bearing in mind that justifiable cause, as the ground for excluding constituent elements, is an indefinite concept, the same ought to be interpreted based on reasonability by factoring in a defendant’s personal and specific circumstances as well as social and periodic changes.

(3) The Majority Opinion’s interpretation of justifiable cause does not harm legal stability. The relationship between legal stability and concrete reasonableness should not be understood schematically, and the possibility of diverse relationships materializing depending on the issue at hand should be recognized. Emphasizing concrete reasonableness does not immediately mean the undermining of legal stability. Likewise, stressing legal stability does not necessarily mean the weakening of concrete reasonableness.

If the Majority Opinion is purporting that conscientious objection should no longer be subject to criminal punishment, this is the same as saying that overruling a judicial ruling is impossible. Following the Majority Opinion, if the Dissenting Opinion were also to purport that it is unclear what falls under a justifiable cause, it is up to the court to present a clear determination on a case-by-case basis to which the outcome of the court’s determination is produced through a written judgment. In light of the purpose of the Military Service Act, the Majority Opinion construed the scope of the meaning of “justifiable cause” to include causes for not being able to cope with performing military service. Here, the argument of legal stability being harmed is incomprehensible. Rather, the Dissenting Opinion’s argument for the maintenance of legal stability in regard to the interpretation of justifiable cause is unclear.

Since its establishment, the Military Service Act does not simply provide that “evasion of enlistment shall be punished” but, rather, stipulates that “evasion of enlistment without justifiable cause shall be punished.” In short, as regards the literal construction of “justifiable cause,” the Military Service Act has from the beginning left room to consider the multifaceted and complex reality and to address unexpected circumstances. Whether the legislator had in mind what constitutes justifiable cause is not important. The legislator’s intent ought to be considered when construing laws, but should not be bound by the same. Rather, the focus ought to be on the law itself ― the very law that provides for “justifiable cause.” The law can be said to be wiser than the legislator.

D. The Dissenting Justices state that, inasmuch as the disposition of military service and the disposition of enlistment are two separate issues, and justifiable cause under Article 88(1) of the Military Act ought to be structurally interpreted along with justifiable cause prescribed in the other provisions of the same Act, justifiable cause under Article 88(1) thereof should be narrowly interpreted solely based on circumstances related to a specific enlistment disposition. Thus, causes to justify not being able to assemble on the designated date and place upon receiving the written notice of enlistment, that is, reasons that cannot be attributable to an individual, such as illness or disaster, for either temporarily postponing or delaying enlistment can only constitute the foregoing causes.

Yet the aforementioned logic is sustainable only in cases where the issue of conscientious objection occurs in relation with other provisions, not Article 88(1), of the Military Service Act and where the same issue is solvable via those other provisions. Indeed, the Majority Opinion appears to have construed the law in accordance with the Constitution by factoring in the overall purport and intent of the Military Service Act. Our reasoning is explicated as follows.

(1) When interpreting laws, the outcome thereof should be considered. If a statute itself has room for diverse interpretations, even though a construction appears to be consistent with the language, logic, and structure, if the outcome is considerably unreasonable, and furthermore, if contradicting the value of a superior law (such as the Constitution), then we need to think differently and reflect as to what constitutional statutory interpretation truly means based on the Constitution.

(2) In relation to conscientious objection, justifiable cause under Article 88(1) of the Military Service Act becomes an issue because the problem arose from the process of applying said Article 88(1). In the previous phase (military service disposition), a conscientious objector is not directly faced with the difficult situation of having to assert one’s conscience. A conscientious objector is in that situation when having received the written draft notice. There is no other means or method for a conscientious objector to assert one’s conscience other than not responding to the written draft notice. Disregarding such circumstances and deeming that there is no room to remotely consider conscientious objection to constitute justifiable cause as prescribed by Article 88(1) of the Military Service Act is nothing more than blockading conscientious objection without any substantive review, and thus, not acceptable. In the same vein, the Supreme Court’s previous en banc Decision (which did not acknowledge conscientious objection as a justifiable cause) can be understood as having dealt with the issue of conscientious objection in connection to the issue of interpreting justifiable cause as defined in Article 88(1) of the Military Service Act.

(3) Whether a military service obligor is fit to enlist in active duty service and whether the same person is “capable” of performing the relevant military service is considered when issuing the disposition of military service, particularly, active duty service (see Articles 5, 11, 12, 47, 61, 64, 65, and 66 of the Military Service Act). In view of the matters considered when imposing the duty of military service, the grounds for issuing the disposition of military service do not necessarily have to be limited to physical conditions. Other circumstances such as mental and personal conditions can also be sufficiently factored. From the perspective of “suitability” in performing the duty of military service, the foregoing circumstances need to be taken into account as a matter of course. The current Military Service Act also provides for a psychological examination to be used as reference material to determine whether a person is fit to perform military service; provided, such examination is deemed necessary only for the purpose of determining whether a person is suffering from a psychological disorder or a mental or physical disorder (see Article 11, etc. of the Military Service Act).

“Justifiable cause” under Article 88(1) of the Military Service Act serves as a legislative mechanism to include circumstances deemed significant depending on social and periodical changes as one of the grounds for issuing military service disposition. On that basis, the legislative branch delegated the judiciary branch with the task of realizing the specific and ultimate justice regarding the performance of military service. By interpreting and applying the term “justifiable cause” in specific cases, a court has the final authority and responsibility to ensure that the duty of military service is not excessively burdensome for citizens to perform.

(4) The foregoing “justifiable cause” is not confined to temporary and objective circumstances, i.e., illness or disaster, which makes it difficult for a defendant to perform a specific military service. Circumstances where a defendant is permanently incapable of performing a specific military service (including enlistment) deemed excessively burdensome ought to include circumstances that were not considered during the process of imposing the duty of military service and issuing the disposition of military service.

(5) The Dissenting Justices argue that the Majority Opinion’s construction of “justifiable cause” to mean “an unbearable excessive burden” is merely replacing one abstract legal term with another abstract legal term. However, this is not how the Majority Opinion defined the term as it merely interpreted the scope of justifiable grounds by stating that circumstances that are deemed as an unbearable excessive burden may be “included” under that scope. Moreover, whether “an unbearable excessive burden is justifiable” is an abstract concept is questionable. The Majority Opinion appears to have interpreted such an abstract concept that is difficult to uniformly define from an individual case-by-
case basis. Thus, as otherwise pointed out in the Dissenting Opinion, the Majority Opinion did not answer a question with a question or replace an issue with another issue.

According to the Dissenting Opinion, inasmuch as exceptions that are not explicated in the Military Service Act cannot be acknowledged, and as the grounds for exemption under the same Act are not only limited but are also confined to objective and value-neutral grounds that are directly related to a person’s ability to smoothly and adequately perform military service, subjective circumstances based on an individual’s value judgment (conscience) are not suitable for inclusion under a justifiable cause.

However, the reason that conscientious objection may be recognized as a justifiable cause is that it is based on the freedom of conscience guaranteed by the Constitution. Furthermore, as seen above, the Military Service Act has from the start left room for such interpretation through the term “justifiable cause.” The Majority Opinion appears to accord with the true intent of the Military Service Act. Moreover, no rationale exists to deem that “justifiable cause” as prescribed by the Military Service Act only includes objective circumstances and excludes subjective circumstances, or only includes value-neutral circumstances and excludes circumstances for value judgment. Not only is it a challenge to clearly distinguish circumstances as either objective or subjective to determine whether a person is able to cope with military service, making that distinction also does not seem inherently significant from the perspective of determining such capability. This is also true regarding value-neutral circumstances and value-judgment circumstances. Even if from the perspective of whether performing military service is suitable or not, a person may be deemed as unfit if that person, based on one’s conscience, cannot participate in military training or bear arms, or, in certain cases, attempt to kill another person.

E. The Dissenting Opinion states that conscientious objection is historically and realistically based on a Christian belief in most cases. Given that Western nations have a Christian tradition, social perception, tolerance, and consensus related to conscientious objection can be relatively easily formed, but this is not the case for Korea. That said, the Dissenting Opinion points out that the Majority Opinion’s view, which overlooked the historical, religious, and cultural differences between Korea and the West, is devoid of logic and strays from reality going beyond the socially acceptable norm and sound common sense.

However, the Majority Opinion does not purport that Korea should acknowledge conscientious objection on the grounds that Christianity is a dominant religion in Korea and that conscientious objection is accepted by the West. It also does not overlook our nation’s unique history and culture. The Majority Opinion merely places emphasis on the importance and guarantee of the freedom of conscience. So long as democracy and human rights are pursued, the freedom of conscience is a significant and universal value that transcends periodic, regional, religious, and cultural differences. Criticizing the issue of conscience by confining it to a religious issue deviates from the essence of the instant case. Moreover, linking the issue of conscientious objection with the Christian-based tradition or culture of the West is inappropriate. Disregarding the fact that diverse religious sects exist and clash with one another in Western nations and readily concluding that conscientious objection is acknowledged on the premise of a single religion (Christianity) is not acceptable. If following the Dissenting Opinion’s logic, countries without a Christian tradition should not acknowledge conscientious objection; there is no need to underline further how unreasonable this view is. Moreover, the Majority Opinion does not confine conscience based on which conscientious objection is recognized to a specific religious belief. The Majority Opinion cited conscientious objection based on a religious faith when deliberating and determining genuine conscience because the instant case pertains to the same. Deeming the Majority Opinion’s argument for the need to guarantee the freedom of conscience to the fullest to realize the value of democracy and human rights as devoid of logic or straying from reality is inappropriate.

F. According to the Dissenting Opinion, decisions rendered by the UNHRC or the ECtHR neither have binding force in Korea nor can be applied as is in Korea due to different normative systems.

However, the Majority Opinion does not purport that the stance of other countries or the international community should be followed as is. Rather, the Majority Opinion calls for the need to acknowledge conscientious objection in light of our nation’s overall legal order including the Constitution. Provided, global empirical views and attitude shifts regarding the issue of conscientious objection may be considered when construing justifiable cause under the Military Service Act.

With respect to the issue of conscientious objection, breakthroughs are being observed within the international community.

Article 18 of the ICCPR to which Korea is also a signatory guarantees the freedom of thought, conscience, and religion. In 1993, under the General Comments No. 22, the UNHRC stated that the right of conscientious objection could be derived from Article 18 of the ICCPR. Also, the UN Human Rights Committee and the UN Human Rights Council, which replaced the former UN Commission on Human Rights from around 2006, have strongly voiced support for the recognition of conscientious objection on ten (10) occasions during the period from 1989 to 2013.

Meanwhile, the UNHRC explicitly recognized the right of conscientious objection in Article 10(2) of the Charter of Fundamental Rights of the EU adopted on December 7, 2000. (“The right to conscientious objection is recognized in accordance with the national laws governing the exercise of this right.”) Pursuant to Article 6(1) of the Treaty on European Union that took effect on December 1, 2009, the foregoing Charter became legally binding on member nations. Citing the UNHRC’s view dated November 3, 2006, the ECtHR, on July 7, 2011, determined that the right to conscientious objection was guaranteed according to Article 9 of the European Convention on Human Rights and overruled the precedent of the European Commission of Human Rights that deemed otherwise. In so doing, the ECtHR deemed that imposing criminal punishment without permitting alternative military service against a person refusing military service on the ground of a genuine religious faith was not a necessary restriction in a democratic society (Bayatyan v. Armenia (Application No. 23459/03)).

While the interpretation of the UNHRC et al. of the ICCPR ought to be respected, it is not legally binding since the Covenant per se is not a regulation, and the position of the EU and the ECtHR cannot be deemed as a generally acknowledged international law or customary international law (see, e.g., Supreme Court Decision 2007Do7941, Dec. 27, 2007; Constitutional Court en banc Decision 2011Hun-Ma306, etc., Jul. 26, 2018). However, the foregoing shift in the stance of the international society is thought-provoking in relation to determining whether conscientious objection constitutes justifiable cause as prescribed by Article 88(1) of the Military Service Act in Korea, with the reason being that the freedom of conscience and its recognition is a universal issue of mankind.

G. In the Dissenting Opinion, the Justices opine that conscientious objection should not be permissible by reasoning that: (i) an individual’s fundamental rights such as the freedom of conscience cannot be guaranteed without the assurance of national security and homeland defense; (ii) that being said, the duty of national defense and the duty of military service cannot be refused by anyone who is a constituent member of a community state; and (iii) this is all the more true in the case of Korea with a security environment that is unstable and unpredictable than any other country in the world.

Preserving national security and defending our homeland are prerequisites for ensuring the dignity and value of all citizens. As the only divided nation in the world, we fully share the Majority Opinion’s view that the security environment surrounding the Korean Peninsula has become increasingly severe that is incomparable with other countries. The existing state of international affairs and the current South-North Korea relationship does not present a rosy outlook on the future security environment surrounding the Korean Peninsula.

However, in light of the fact that conscientious objectors upon criminal punishment are sent to prison and in view of Korea’s economic and defense power and the public’s high level of security awareness, etc., deeming that not penalizing conscientious objectors will impede efforts toward preserving national security and defending our homeland is difficult. On June 28, 2018, the Constitutional Court handed down a constitutional nonconformity decision by determining Article 5(1) of the Military Service Act as unconstitutional. In said ruling, the Constitutional Court held that, even if considering the unique security environment of the Korean Peninsula, imposing conscientious objectors to perform alternative military service will not have a significant impact on the nation’s defense power.

The Majority Opinion is not indifferent toward the constitutional value of national security and homeland defense, as well as the importance of the duty of national defense and the duty of military service to realize such constitutional value. We are on the same page with the Majority that the duty of military service is a sacred duty to be fulfilled by all citizens; provided, however, the duty of national defense does not necessarily have to involve participation in military exercises and bearing arms, and may be performed through alternative military service. Conscientious objectors whom the Majority seeks to protect do not deny the duty of national defense itself; rather, they are merely pleading to be given a chance to contribute to society via means other than having to bear arms or receive military training.

H. According to the Dissenting Opinion, inasmuch as (i) active duty service may threaten lives, cause bodily harm, inflict severe psychological pain, and impose heavy economic burden, and (ii) exemption of one military service obligor inevitably leads to substitution by another military service obligor, the principle of equal sharing of military service burden should be strictly maintained; however, in light of the current tendency toward evading military service, not punishing conscientious objectors may result in rampant cases of evading military service hiding behind conscientious objection.

While the need to emphasize equality in the performance of military service is incontestable, it is difficult to accept the Dissenting Opinion’s view at face value. The Dissenting Justices appear to purport to the effect that, even if conscientious objection is permitted and alternative military service is imposed, there is a huge gap in the risk to life and body between active duty servicemen and alternative military servicemen. While we resonate with parts of the Dissenting Opinion including the need for measures to be in place, we do not agree with the view that such problem only arises between active duty servicemen and alternative military servicemen if permitting conscientious objection.

Recognizing conscientious objection does not mean unjustly passing on the duty of military service to another person. As of now when conscientious objection is not permitted, conscientious objectors are not serving as active duty servicemen and merely serving prison sentences. Meanwhile, permitting conscientious objection does not mean that those not serving as active duty servicemen will do just that. Indicating that the legalization of conscientious objection would be infringing another person’s right is either an expression of antipathy or an exaggeration of the seriousness of a situation relating to conscientious objection.

The issue of military service evasion hiding behind conscience as pointed out in the Dissenting Opinion can be easily resolved through deliberation of genuine conscience. More importantly, evasion of military service ought to be prevented as a matter of course but should be handled differently from what is stated in the Dissenting Opinion. As a way to curb tendencies in evading military service, continuous efforts need to be made to improve the military service environment and ensure better social treatment of those who served in the military. Moreover, neither rationale nor cases exist to deem that punishing conscientious objectors reduces evasion of military service.

I. According to the Dissenting Opinion, the issue of conscientious objection merely deals with whether all constituent members of a community state, including conscientious objectors, who are entitled to share the constitutional value of being guaranteed fundamental human rights are fulfilling their self-responsibility through equally sharing the burden of and fairly performing the duty of military service, rather than the issue of unjust oppression of the minority by the majority. On that note, the Dissenting Opinion opines that whether to permit conscientious objection depends on the intent of the majority of societal members who will have to share the additional burden of military service duty that ought to have been performed by conscientious objectors.

However, even if such view appears to be justifiable on the surface, the underlying meaning is that conscientious objection is impermissible if not accepted by the majority of societal members. The Majority Opinion disagrees on this very point. Issues related to the minority cannot be resolved through a majority decision. Rather, minority-related issues are the only ones left among the issues unresolved by a majority decision. Furthermore, conscientious objection is a minority issue related to military service, which is the most sensitive topic in Korea. That said, the judiciary cannot avoid this issue.

Continuing to criminally punish those objecting to military service based on religious faith is forcing them to choose between giving up their religious doctrine and enduring criminal punishment upon nonperformance of military service. A democratic society aspires to tolerate and embrace the minority having a set of beliefs that are different than the majority and to coexist as members of society. The time has come for society to take that stance toward conscientious objectors.

J. The Dissenting Opinion states that, permitting conscientious objection would be granting legitimacy and justifiability on a social level, thereby causing more people to convert to a specific religion (such as Jehovah’s Witness) for the purpose of being exempt from military service or refuse military service on the grounds of respect for life, etc. that are embedded in most religions. In addition, the Dissenting Opinion points out that the Majority Opinion’s view is no different than asserting that conscientious objection ought to be deemed as a universal and general right rather than a specific ideology or conviction among the minority.

However, the issue of conversion to Jehovah’s Witness and the issue of conscientious objection based on a general religious doctrine ought to be differently viewed. In refusing blood transfusion and refusing to pledge allegiance to the national flag, Jehovah’s Witnesses have already chosen the path to be labeled as the social minority; moreover, the requirements to receive baptism by immersion or carry out missionary activities as a devotee are very strict. It is highly unlikely that the number of people converting to Jehovah’s Witness will sharply rise just for the purpose of not wanting to enlist in the military. Regarding the issue of conscientious objection on the grounds of respect for life, etc. that are embedded in general religions, conscientious objection should be permitted as a matter of course if such grounds are recognized as a genuine conscience but not when the intent is to evade military service hiding behind conscience. No religion should be discriminated when conscientious objection is acknowledged, inasmuch as the same is premised on genuine conscience. Meanwhile, noting that the Constitution guarantees the freedom of religion, the choice of religion or the expression of religious conversion or belief, etc. should not be questioned solely on the basis that it may somewhat be related to military service duty. Ultimately, the Dissenting Opinion’s argument on this portion either lacks practical reasoning or deviates from the inherent substance of the issue at hand.

The Majority Opinion does not assert that conscientious objection ought to be protected since it is universally valid or that it should be considered as so. While conscientious objection runs counter to the majority of the public’s sense of belief and justice, the public sentiment is that if the same is guaranteed under the freedom of conscience by the Constitution, then it should be protected and accepted. If extending the purport of the Dissenting Opinion, it can be concluded that the substance of such conscience may be universally valid and that only a universally valid belief falls under that conscience. This blatantly contravenes the precedents of the Supreme Court and the Constitutional Court regarding the meaning of conscience that the Constitution seeks to protect.

K. The Dissenting Opinion argues that conscience is not an appropriate subject matter of proof during criminal judicial proceedings inasmuch as conscience cannot be objectively determined. Also, criminal intent can only be proven if there is an objectively revealed action, whereas that is not the case for conscience that remains in the inner realm as a matter of principle. As such, applying the method of proving criminal intent to prove conscience is next to impossible.

However, the subject matter of proof regarding conscientious objection is the existence or absence and the degree of conscience. This is basically a fact-finding issue and cannot be deemed as impossible to prove. If punishment were to be handed down on the grounds that proof of conscience is either improbable or difficult, this is concluding that evidence of guilt has been presented. This contradicts the fundamental principle of criminal law, i.e., “when in doubt, in favor of the defendant (in dubio proreo),” and is the same as allocating the burden of proof on the defendant. Deeming that conscience cannot be asserted as a justifiable cause on the ground that the same is difficult to prove by the prosecution is confusing means and ends. The unreasonableness of the Dissenting Opinion’s argument is sufficiently verified by the fact that many countries are winnowing out genuine and false conscientious objection and permitting the former.

Moreover, conscience not only remains within but can also be outwardly revealed. If that conscience is a devout, firm, and genuine belief that governs a person’s life, it is natural that the same is expressed through that person’s overall course of life, such as family background, childhood, school life, and social experience. In the end, the issue of conscience as regards conscientious objection can be proven when externally expressed, and is not that different from an externally performed act that is a premise to prove criminal intent. Just as inferring criminal intent through an externally revealed act is possible, inferring conscience through an externally expressed act is feasible.

L. As a prerequisite underlying human dignity, the freedom of conscience is a universal right that humans are entitled to. An individual’s inner conscience cannot be violated by anyone, including a State.

Conscientious objectors appeal to the law to protect one’s dire conscience. The only choice left for them is to protect their conscience at the risk of facing criminal punishment or to give up their conscience to be exempt from criminal punishment. Faced with being forced to give up one’s inner conscience and destroy one’s value of existence as a human being, there ought to be some breathing room for conscientious objectors to uphold one’s command of conscience. If such minimal passive omission is not even permissible, the Constitution’s guarantee of the freedom of conscience has no significance whatsoever.

Permitting conscientious objection is not granting special treatment to conscientious objectors. It seeks to only protect their rights. In short, this is the recognition of freedom that may be different from that regarded within our community, and, in so doing, safeguarding the value of democracy and ensuring human dignity and worth for all citizens.

As above, we express our Concurrence with the Majority Opinion.

10. Concurrence with the Majority Opinion by Justice Park Jung-hwa, Justice Kim Seon-soo, and Justice Noh Jeong-hee

We express our concurrence with the Majority Opinion deeming that conscientious objection constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service Act from the perspective of the ICCPR, which is an international human rights treaty to which Korea is a signatory.

A. The Majority Opinion and the Dissenting Opinion appear to be on the same page as to the point that shifts within international society and changes in international norms ought to be considered in the instant case dealing with the issue of criminal punishment against a conscientious objector.

Despite the aforementioned shifts and changes, foreign legislations and/or the European Convention on Human Rights (ECHR) adopted by the Council of Europe in 1950, the Charter of Fundamental Rights of the European Union adopted by the European Parliament on December 17, 2000, or the judicial precedents of the European Court of Human Rights (ECtHR) established by the Council of Europe, etc. cannot be deemed as directly related to Korea. Accordingly, the foregoing materials can only be referenced when introducing laws and policies or construing statutes, and cannot be seen as being directly effective toward Korea.

However, in the case of the ICCPR to which Korea is a signatory, it has an identical effect as that of a domestic law pursuant to Article 6(1) of the Constitution and can directly function as an adjudicatory norm. The legal effect of the same is also acknowledged by the Supreme Court and the Constitutional Court (see, e.g., Supreme Court Decision 96Da55877, Mar. 26, 1999; Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004; Supreme Court Decision 2007Do7941, Dec. 27, 2007; Constitutional Court en banc Decision 97Hun-Ba23, Jul. 16, 1998; Constitutional Court en banc Decision 98Hun-Ma4, Oct. 29, 1998; Constitutional Court en banc Decision 99Hun-Ga13, Apr. 26, 2001).

B. The ICCPR is a treaty that was adopted at the UN General Assembly on December 16, 1966 and was effectuated as of March 23, 1976 (provided, Article 41 took effect as of March 28, 1979). Upon having witnessed human destruction following World War II, in determining “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small” (preamble of the UN Charter), the United Nations (UN) was founded “[t]o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (Article 1(3) of the UN Charter). The Universal Declaration of Human Rights (UDHR), which was declared in 1948 according to such respect for human rights, sets out the human rights and fundamental freedoms that ought to be guaranteed for all people. Provided, however, inasmuch as the UDHR is not legally binding, the International Covenant on Economic, Social and Cultural Rights (ICESCR) was established in 1966 thanks to the efforts of the international community to legally bind the substances therein. Article 26 of the ICCPR established the UN Human Rights Committee (UNHRC) that is composed of 18 human rights experts responsible for ensuring that each signatory to the ICCPR complies with its terms.

Following two World Wars, international efforts to prevent wars and maintain peace around the world are well reflected in the domestic laws of each country, thereby resulting in pacifism and respect for international law being expressly stipulated in the constitution. In the case of Korea, based on the preamble (“contribute to lasting world peace and the common prosperity of mankind”), Article 5(1) of the Constitution provides, “The Republic of Korea shall endeavor to maintain international peace and shall renounce all aggressive wars” and Article 6(1) provides, “Treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.” In the current Constitution, the respect for international peace and international law is recognized as a pivotal principle for setting the basic direction of forming national order, and all state organizations including the legislative, administrative, and judicial branches are required to “endeavor toward realizing the purport of international laws to the fullest extent in respect of international cooperation” (see, e.g., Constitutional Court en banc Decision 2003Hun-Ba51, Aug. 30, 2007).

As regards the ICCPR, Korea submitted the application form to the UN Secretary-General on April 10, 1990 following a deliberation by the State Council on October 5, 1989 and obtaining consent from the National Assembly on March 16, 1990, thereby effectuating as of July 10, 1990 (Treaty No. 1007). At the time of becoming a signatory to the ICCPR, Korea also subscribed to the Optional Protocol to the International Covenant on Civil and Political Rights (Treaty No. 1008) according to which the UNHRC adopted the individual communication procedure whereby “the UNHRC may consider individual communications alleging violations of rights set forth in the ICCPR.” Inasmuch as the ICCPR is a treaty concluded upon obtainment of consent from the National Assembly, it has domestic legal effect according to Article 6(1) of the Constitution and that effect at the very least accords with law. The following is indicated in the 1st report that the Korean government submitted to the UNHRC in 1993, not to mention the 2nd report submitted thereto for the 1791st-1792nd session of the UNHRC meeting held on October 22, 1998: “The ICCPR, which was ratified and promulgated by the Korean government upon obtaining consent from the National Assembly according to Article 6(1) of the Constitution, has the effect of domestic laws without the need for additional legislation. Therefore, the administrative branch and the judicial branch are obligated to comply with the same when exercising their respective authority.” Of note, the two reports clearly state, “All rights protected by a treaty shall be guaranteed pursuant to Article 37(1) of the Constitution. Therefore, a treaty ought to be respected even if not explicitly prescribed in the Constitution. If a statute prior to the aforementioned ICCPR clashes with the provisions thereunder, the Covenant shall take precedence. No rights stipulated in the Covenant shall be infringed by any law established in the Republic of Korea, and such law will be a violation of the Constitution.”

Article 2 of the ICCPR provides that “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind […]” and that “Each State Party to the present Covenant undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy […]” Korea becoming a signatory to the ICCPR is a clear promise to the international society that it will fulfill the foregoing duties.

C. According to Article 18 of the ICCPR, “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his voice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching” (Parag. 1) and “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice” (Parag. 2). As can be seen, the Covenant has specific provisions similar to the provision on the freedom of conscience under Article 19 of the Constitution of the Republic of Korea. Furthermore, similar to Article 37(2) of the Constitution that provides for the restriction on the right of freedom by the principle of law reservation, the Covenant also has a similar provision under Article 18(3) stipulating that “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” While partially reserving such provisions as Article 22 in subscribing as a member state of the ICCPR, Korea did not do so as to Article 18. It is the position of the Supreme Court and the Constitutional Court that Article 18 of the ICCPR guaranteeing the freedom of conscience constitutes a law that directly applies to all citizens of Korea without the need for any special legislative measure (see, e.g., Supreme Court Decision 96Da55877, Mar. 26, 1999; Constitutional Court en banc Decision 2008Hun-Ga22, Nov. 30, 2011).

D. The Covenant not only provides for the types of freedoms and rights guaranteed but also provides for the organization of a committee and grants the relevant authority and responsibility to the same in order to guarantee and realize said freedoms and rights pursuant to Article 28, as well as provides for each State Party to faithfully perform their required duties. Therefore, in construing the specific content and scope of guaranteeing the freedoms and rights under the Covenant, matters such as the overall provisions of the Covenant, committee activities, and duties to be performed by each State Party should also be considered.

(1) Prior to 1991, citing Article 8(3)(c)(ii) of the ICCPR (“For the purpose of this paragraph the term ‘forced or compulsory labor’ shall not include: Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors”) as its rationale, the UNHRC adopted the view that whether to recognize conscience objection was a matter falling under the purview of a domestic issue, and that Article 18 of the Covenant did not acknowledge conscientious objection. However, in the General Comments No. 22 that was adopted in 1993, the UNHRC overturned its previous view by stating as follows: “Many people have asserted the right to refuse to perform military service (conscientious objection) based on Article 18. Accordingly, the number of countries has increased that have legislated laws exempting military service and imposing alternative military service for people who refuse military service based on a genuine belief derived from a religion or another reason. Although the Covenant does not explicitly mention the right to conscientious objection, inasmuch as the duty to use weapons of mass destruction may seriously clash with the freedom of conscience, individual religion, or the right to express a belief, the right to conscientious objection can be deemed as derivable from Article 18 of the Covenant.”

(2) To ensure that each State Party to the ICCPR is complying with and performing the duties prescribed thereunder from a holistic and concrete perspective, the UN requires the UNHRC to deliberate government reports submitted by each State Party and to express the Committee’s concluding observations. In the same context, Article 40 of the ICCPR provides, “The State Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights […]” and “The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties […]”

In November 2006, following the review of the 3rd government report submitted by the Republic of Korea, the UNHRC recommended the following in its concluding observations: “There is no limitation in handing down a maximum prison sentence of three years against conscientious objectors according to the Military Service Act and newly imposing punishment by reassembling the conscientious objectors. If failing to complete military service, there exist concerns that they will be excluded from the opportunity to find employment with government bodies or public institutions, and that they will have a criminal record if subject to punishment for conscientiously objecting to military service. All necessary measures need to be taken to recognize the rights of conscientious objectors and to exempt them from military service. The Committee urges Korea to undertake legislative action in line with Article 18 of the Covenant.” In November 2015, in the concluding observations regarding Korea’s 4th report, the UNHRC strongly criticized the Korean government for having failed to provide specific relief for conscientious objectors even though the Committee called upon the Korean government to do so via the individual communications procedure. Moreover, expanding its views regarding the 3rd government report, the Committee pointed out key concerns and made the following recommendations: “All conscientious objectors, who were handed down a prison sentence on the grounds of having exercised one’s right to be exempt from military service, should immediately be released. The Korean government should ensure that their criminal records are erased, adequate compensations are provided, and their personal information is not disclosed. Also, the Korean government should legalize conscientious objection and have conscientious objectors perform alternative military service in the private welfare sector.”

(3) As examined earlier, Korea also subscribed to the Optional Protocol on an Individual Communications Procedure at the time of subscribing to the ICCPR. In full view of Article 2 of the ICCPR and the provisions of the Optional Protocol, having subscribed to such protocol is indicative of the fact that a State Party recognizes the UNHRC’s right to examine an individual petition submitted against the relevant State, and that it shall respect and abide by the examination outcome. Therefore, signatories to the Optional Protocol ought to be deemed as having a duty under international law to accept the UNHRC’s Views on Individual Communications pursuant to the ICCPR that is a universal and multilateral treaty.

In the View on Individual Communications as of November 3, 2006, regarding the petition submitted by Korean nationals (Nonindicted 5 and Nonindicted 6) who were convicted by a final judgment in Supreme Court en banc Decision 2004Do2965 Decided July 15, 2004, the UNHRC stated as follows: (a) Article 8 of the Covenant itself neither recognizes nor denies conscientious objection. Therefore, the pertinent individual communications case needs to be reviewed in light of only Article 18 thereof. (b) Interpretation of Article 18 of the Covenant tends to gradually change with time in line with the context and purport. There are increasing numbers of States Parties that are introducing an alternative military service system by respecting the Views in the General Comments No. 22 adopted in 1993. Moreover, the introduction of an alternative military service system that may eliminate imbalances between military service obligors and alternative military servicemen is feasible and universal in practice. (c) As regards the Korean government’s argument that criminal punishment against conscientious objectors is a necessary restriction for the purpose of securing national defense power, maintaining social unity, and ensuring public safety, whether such restriction is essential was not clearly proven. Therefore, the Republic of Korea violated Article 18 of the Covenant for not having acknowledged conscientious objection (Yeo-Bum Yoon and Myung-Jin Choi v. Republic of Korea, CCPR/C/88/D/1321-1322/2004).

Thereafter until 2017, the UNHRC expressed 15 separate Views on Individual Communications related to conscientious objection. As enumerated infra, four Views pertain to Korean nationals and include the Committee’s concluding observation that Korea violated Article 18 of the Covenant: (i) View adopted on March 23, 2010 (Nonindicted 7 (English name omitted) and 11 others v. Republic of Korea, CCPR/C/ 98/D/1593-1603/2007); (ii) View adopted on March 24, 2011 (Nonindicted 8 (English name omitted) and 100 others v. Republic of Korea, CCPR/C/ 101/D/1642-1741/2007); (iii) View adopted on October 25, 2012 (Nonindicted 9 (English name omitted) and 388 others v. Republic of Korea, CCPR/C/106/D/1786/2008); and (iv) View adopted on October 15, 2014 (Nonindicted 1 (English name omitted) and 50 others v. Republic of Korea, CCPR/C/ 112/D/2179/2012) (hereinafter each referred to “View1,” “View2,” “View3,” and View 4” for convenience).

In View 2, the UNHRC expressed that “The right to conscientious objection is embedded in the freedom of thought, conscience, and religion. If harmony between compulsory military service and an individual’s religion or faith is improbable, any individual is entitled to the right to be exempted from said duty of military service. If desired, a State may enforce conscientious objectors to perform non-punitive alternative military service in the private welfare sector.” Thereafter, the Committee has adopted a consistent view on all Individual Communications cases. In View 4, while maintaining the view that the right to conscientious objection is embedded in the freedom of conscience, the UNHRC concluded that execution of an actual prison sentence according to the judiciary’s trial proceeding constitutes arbitrary detention that is proscribed by Article 9 of the Covenant by determining that “Just as imprisonment against a lawful exercise of right to the freedom of expression that is guaranteed by Article 19 of the Covenant constitutes arbitrary imprisonment, the same holds true for handing down a prison sentence for the lawful exercise of right to the freedom of religion and conscience under Article 18 of the Covenant.” Meanwhile, as to the Korean government’s argument to the effect that “public consensus has not been reached on national security, equity between military service obligors and alternative military servicemen, and alternative military service,” the UNHRC determined as follows: “The Korean government appears to be repeatedly arguing the foregoing points. The Committee has already reviewed such claims in previous Views relating to Nonindicted 5, Nonindicted 6, Nonindicted 8, etc., and therefore, no particular reason exists to change our previous stance.” Furthermore, regarding the Korean government’s claim that “recognition of conscientious objection may serve as an excuse to justify the refusal of the duty to pay taxes and the duty to receive mandatory education,” the Committee rejected the same by reasoning that “unlike the duty of tax payment and the duty of education, military service is a duty that involves activities anyone can obviously perceive as threatening another’s life.”

E. The Dissenting Justices opine that nowhere in the ICCPR (including Article 18) does it explicitly provide for the right to conscientious objection, and that the same does not require a State Party to necessarily acknowledge conscientious objection. Thus far, grounded on the fact that the ICCPR itself does not clearly state the right to conscientious objection as a human right, the Supreme Court and the Constitutional Court have maintained the stance that the interpretation of international human rights organizations such as the UNHRC only has validity as a recommendation and not a legally binding force in each country (see, e.g., Supreme Court Decision 2007Do8187, Nov. 29, 2007; Supreme Court Decision 2007Do7941, Dec. 27, 2007; Constitutional Court en banc Decision 2008Hun-
Ga22, Aug. 30, 2011).

However, the foregoing Dissenting Opinion as well as the views of the Supreme Court and the Constitutional Court is not sustainable in that it disregards the international community’s interpretation that the right to conscientious objection is recognized pursuant to Article 18 of the ICCPR following the UNHRC’s adoption of the General Comments No. 22 in 1993. The fact that the right to conscientious objection in included under Article 18 of the ICCPR has consistently been acknowledged by not only the UNHRC but also the UN Commission on Human Rights (one of the subsidiary organs of the UN Economic and Social Council), the UN Human Rights Council (which replaced the former UN Commission on Human Rights from March 2006), and the ECtHR, and thus, it can be said that an international standard on the issue has been established. In construing the ICCPR that is a universal international treaty on human rights, narrowly interpreting that “rights only explicitly provided for in the Covenant” are acknowledged is neglecting the international legal duty on the compliance of the ICCPR.

Moreover, in light of the fact that the ICCPR provides for the organization of a committee tasked with guaranteeing the right of freedom and taking the necessary measures to ensure the same and the duties of each State Party, the contents therein cannot be narrowly interpreted to only explicit provisions. In view of the fact that the right to conscientious objection is consistently recognized in the overall context of the ICCPR, the UNHRC’s General Comments, the UNHRC’s Recommendations following the review of government reports, and the UNHRC’s Views on Individual Communications petitioned by Korean nationals, the right to conscientious objection should be construed as recognized in Article 18 of the ICCPR. As provided for in Article 37(1) of the Constitution of the Republic of Korea (“Freedoms and rights of citizens shall not be neglected on the grounds that they are not enumerated in the Constitution.”), it is tenable to deem that fundamental human rights are derivable through interpretation of the ICCPR in line with the spirit of times within democratic nations, even if there is no explicit provision in the ICCPR.

In the case of international human rights treaties like the ICCPR, a court should endeavor to interpret constitutional fundamental rights as well as statutes in accordance with the relevant treaty. From the perspective of universal human rights, construing laws in harmony with an international human rights treaty is a responsibility that the judiciary ought to uphold. In particular, this is all the more true when construing laws in accordance with the ICCPR, which was established to justify that human rights issues are not just a domestic-oriented problem but a global and universal one, and directly granting such rights to individuals.

That being said, conscientious objection should be deemed as constituting “justifiable cause” as prescribed by Article 88(1) of the Military Service Act according to Article 18 of the ICCPR that is perceived to have the identical effect as that of domestic laws pursuant to Article 6(1) of the Constitution.

F. Even if construing that the right to conscientious objection is not acknowledged by Article 18 of the ICCPR itself, the UNHRC’s General Comments, as well as recommendations following the Committee’s review of State Party’s reports, the Views on Individual Communications petitioned by Korean nationals that the UNHRC adopted, and recommendations of the UN Human Rights Council should be regarded as a viable normative basis to interpret “justifiable cause” under Article 88(1) of the Military Service Act from a constitutional perspective of the respect for international law. Interpreting that conscientious objection falls under “justifiable cause” as prescribed by Article 88(1) of the Military Service Act can be supported by such principle on the respect for international law in light of the following: (i) Conscientious objection has come to be generally accepted by international law. There exists an international norm on human rights that explicitly acknowledges conscientious objection and, in particular, most European countries recognize the right to conscientious objection; (ii) Under the principle of the respect for international law, the interpretation by international organizations regarding universal treaties such as the ICCPR ought to serve as a convincing basis for statutory construction; (iii) Deeming that the right to conscientious objection is included under Article 18 of the ICCPR is now an established international standard; (iv) After becoming a signatory to the ICCPR, the Korean government expressed that the Covenant shall be respected despite not having been explicitly stipulated in the Constitution, that the rights under the Covenant shall not be violated by any law, and that laws violating those rights are unconstitutional; and (v) Inasmuch as the UNHRC’s Views on Individual Communications pertain to the Committee’s determination on whether a State Party has violated the Covenant upon receiving a petition from an individual alleging that one’s right has been infringed, it is similar to that of a judiciary decision. Also, in light of the numerous views expressed by the UNHRC as to the petitions submitted by Korean nationals through the individual communications procedure, the Committee without exception is likely to continue to adopt the view that petition cases involving conscientious objectors who were convicted by a domestic court fall under a violation of the Covenant.

G. One of the key bases of the Dissenting Opinion’s argument is Korea’s unique historical, religious, and cultural background and the ever-more stringent security environment surrounding the Korean Peninsula. However, an international treaty on human rights can be regarded as an objective treaty on norm establishment given that it is identically applied to all signatories. Such norm is applied by the relevant signatory regardless of its performance by another signatory, and furthermore, extenuating circumstances of a signatory should not be overestimated. The principle of reciprocity of conventional treaties is inapplicable toward an international human rights treaty. Article 27 (International Law and Observance of Treaties) of the Vienna Convention on the Law of Treaties provides that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.” As such, violations of international legal duties cannot be justified. To address such violations of international law, the decision or recommendation by an international human rights organization should be regarded with utmost respect and statutes should be interpreted accordingly as doing so coincides with the principle of the respect for international law. Given that human rights is a universal right and evolves with time, merely focusing on the circumstances unique to Korea and taking an interpretative stance that does not comply with the ICCPR is a complete disregard for the duty to respect international law by Korea, a country that is regarded by the international community as having achieved remarkable economic growth.

H. While the dignity and value of humans is a fundamental ideology of our Constitution, certain freedoms and rights have been restricted depending on circumstances facing the nation and society at the time, and such restriction had been justified by courts. However, inasmuch as fundamental freedoms and rights need to be restricted within the minimum extent necessary, if there is a legitimate demand by society that the time has come to lift that restriction due to changes in circumstance, a court has the responsibility to promptly and clearly affirm those freedoms and rights.

Based on the fervent desire to bring to recollection the enormous responsibility of the judiciary and with great anticipation that Korea can stand shoulder to shoulder with the international community regarding human rights issues, we express our Concurrence with the Majority on the foregoing reasons.

11. Concurrence with the Dissenting Opinion by Justice Kim So-young and Justice Lee Ki-taik

A. The Majority Opinion states that, inasmuch as forcing conscientious objectors to perform military service including participation in military exercises and bearing arms and punishing those for nonperformance of such duty may excessively restrict the freedom of conscience or threaten the inherent substance of the same, the refusal of military service based on genuine conscience should constitute “justifiable cause” as prescribed by Article 88(1) of the Military Service Act, and defines “conscience” as a devout, firm, and sincere belief. On that basis, in a case pertaining to the violation of the Military Service Act, should a defendant assert conscientious objection, the foremost thing to do is to distinguish whether such belief is devout, firm, and sincere. Inasmuch as directly and objectively proving a human being’s inner conscience is improbable, the matter ought to be determined by way of proving indirect facts or circumstantial evidence in light of the nature of things (dererum natura).

B. However, the foregoing Majority Opinion’s position not only deviates from the basic principle on the freedom of conscience aspired by the Constitution, it is also difficult to accept in light of the nation’s current situation as well as the public sentiment revealed during discussions that were held related to conscientious objection. Moreover, not only is it unreasonable to determine whether conscientious objection based on a religious belief can be acknowledged as a justifiable cause under the Military Service Act through interpretation of the freedom of conscience, but also inappropriate to approach the matter as a policy issue (that is, whether to institutionalize conscientious objection in any form or scope) in harmony with the constitutional value of maintaining the nation’s independence and defending our homeland.

As explicated infra, we do not agree with certain parts of the Majority Opinion.

C. Conscience that the Constitution seeks to protect refers to a strong and genuine voice within guiding us that one’s value as a human being will be destroyed if one does not act according to his or her conscience; that being said, when determining right and wrong, the outward expression of such conscience ought to be dire and specific. This remains a commonly shared view among the academia, the judiciary, and the Majority Opinion in the instant case.

The Majority goes on to state that “conscience” as referred to in conscientious objection should be a devout, firm, and sincere belief. More specifically, being devout means deeply committed or devoted to a belief that has an overall impact on one’s thoughts and actions; having a firm belief means that such belief is neither fluid nor variable; and sincere belief means that no falsehood exists and that such belief is neither conciliatory nor tactical depending on circumstances.

In construing the meaning of conscience separate from the previously established definition and newly setting the scope of conscience as referred to in conscientious objection, the Majority Opinion does not present a clear rationale to regard “devout, firm, and sincere” as additional elements for determination.

However, insofar as the basis for protecting conscientious objection lies in the freedom of conscience as prescribed by Article 19 of the Constitution, there is room to question whether it is feasible to develop a new concept of conscience that is only applicable toward conscientious objection. The Majority Opinion’s interpretation may appear to be a supplementary explanation on conscience, but, in truth, such interpretation further narrows the scope of conscience by adding “devout, firm, and sincere” as elements for conscience to be warranted protection under the Constitution. If the Majority Opinion’s position is that the foregoing elements ought to be generally applied to conscience as defined by Article 19 of the Constitution, this is devoid of constitutional basis, strays from the previously established interpretation, and further narrows the scope of conscience that the Constitution aspires to protect so as to resolve the issue of conscientious objection. Ultimately, it would result in the suppression of the freedom of conscience. Constitutional basis is also nonexistent if conscience as mentioned above were to be deemed as a determination criteria only pertaining to conscientious objection; furthermore, it would merely be justifying the Majority Opinion’s construction that the legal doctrine on the freedom of conscience ought to be utilized to resolve the issue of military service objection by a specific religion known as Jehovah’s Witness.

D. Meanwhile, as noted in the Majority Opinion, the examination of “genuine conscience” (namely, whether a conscience is devout, firm, and sincere) itself may be another form of infringement of the freedom of conscience. Therefore, it neither accords with the basic principle of the freedom of conscience declared by the Constitution nor becomes possible to determine the same in criminal proceedings under the current Military Service Act.

(1) The Majority Opinion says that if a defendant asserts conscientious objection in a case involving the violation of the Military Service Act, whether conscience is devout, firm, and sincere ought to be examined and determined via the method of proving indirect facts or circumstantial evidence related to conscience.

Under the current Military Service Act that does not provide for alternative military service, so long as conscientious objection is deemed as constituting “justifiable cause” as prescribed by Article 88(1) of the same Act, examination as to the genuineness of conscience is inevitable in cases relating to the violation of the Military Service Act as above. In other words, if a defendant asserts conscientious objection as the reason for not enlisting, a prosecutor shoulders the burden of having to prove that conscience, as mentioned in the Majority Opinion, is not a “conscience that is devout, firm, and sincere,” and a judge should render guilt or innocence by determining whether a defendant’s conscience falls under such definition.

As pointed out in the Majority Opinion, “conscience” that the Constitution seeks to protect refers to a “strong and genuine voice within guiding us that one’s value as a human being will be destroyed if one does not act according to his or her conscience; that being said, when determining right and wrong, the outward expression of such conscience ought to be dire and specific” (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004). Insomuch as the freedom of conscience formation and the freedom of conscientious decision remain within the inner realm, it cannot be restricted and restriction is not necessary as such conscience is regarded as an absolute freedom (see Supreme Court en banc Decision 2004Do2965, supra). Moreover, conscience does not refer to the so-called “kind heart” or “proper thought”; rather, it refers to a value-driven and moral attitude of a person to determine what is right and wrong.

In a criminal case pertaining to the violation of the Military Service Act where a defendant asserts conscientious objection, a prosecutor refutes the same, and a judge hands down a ruling thereto, conscience that is the subject matter of examination from a criminal justice perspective is not that different from a defendant’s inner-formed conscience that acts as the defendant’s value-driven and moral attitude. Just because conscience, which was originally an absolute freedom, was revealed due to nonperformance of the State-imposed duty of military service, this does not mean that whether such conscience is genuine or not falls under the purview of determination by the State.

According to the Majority Opinion, for the Defendant’s conscientious objection to be acknowledged as a justifiable cause, the Defendant’s conscience ought to be recognized as a “strong and genuine voice within guiding us that one’s value as a human being will be destroyed if one does not act according to his or her conscience, and that such conscientious belief is devout, firm, and sincere.”

However, the Majority Opinion does not present a clear picture in terms of what “genuineness” is for conscience to be recognized as a “justifiable cause” and its degree, as well as the extent of the destruction of the value of existence as a human being if such conscience is not followed. An individual’s entitlement to the freedom of conscience and a State’s examination and determination of the same is a completely different matter. While there is no way for a defendant to reveal one’s inner side, if the defendant is able to establish a prima facie case (that is, if a prosecutor fails to prove his or her case), then the defendant’s genuine conscience can be deemed as having been acknowledged and vice versa. Be that as it may, depending on circumstances, a genuine conscience may not be deemed as genuine. However, it goes without saying that such is infringing the freedom of conscience. Furthermore, in light of the inner aspect and absoluteness of the freedom of conscience, a State’s examination of a person’s genuine conscience itself cannot be regarded as fully guaranteeing the freedom of conscience. The Majority Opinion’s view to broadly guarantee the freedom of conscience rather oppresses such freedom.

(2) Underpinned by the no evidence, no trial principle and the principle of free evaluation of evidence, criminal litigation seeks to ensure procedural legitimacy and discovery of substantive truth. In addition, excluding a judge’s discretionary judgment, the principle of no crime and punishment without the law is pursued in fact-finding and statutory interpretation and application. While there are risks of a completely different outcome being derived due to the incompleteness of the current criminal litigation procedure, it is evident that such litigation procedure was formulated to realize the basic principle of criminal proceedings as above. Yet, regarding the following pointed out by the Majority Opinion (i.e., destruction of value of existence as a human being; a strong and genuine voice within; dire and specific; devout, firm, and sincere), we cannot help but be skeptical as to whether the above can be proven in a criminal trial by a prosecutor as evidence, whether a judgment can determine its evidentiary power, and more importantly, if a conviction is handed down based thereon, whether it can be deemed as having complied with the guiding principle of criminal litigation, that is, “In a criminal trial, a guilty verdict should be handed down based on evidence with probative value so that a judge may ascertain that the facts charged are true without any reasonable doubt.”

Moreover, the Majority Opinion says that proving the nonexistence of an indefinite fact is improbable in light of social norm ought to be considered in determining whether a prosecutor has proven the nonexistence of genuine conscience. Going further, the Majority Opinion opines that (i) a defendant asserting conscientious objection should present prima facie evidence that his objection of military service is based on one’s dire and specific conscience to the point that going against it would be destroying one’s value of existence as a human being, and that such conscience is based on a devout, firm, and sincere belief, and (ii) a prosecutor may prove the nonexistence of genuine conscience by way of impeaching the credibility of evidence. However, such interpretation by the Majority Opinion regarding a defendant to present prima facie evidence has no merit whatsoever under the Constitution declaring the legal doctrine that all defendants in criminal cases are presumed to be innocent until proven guilty beyond reasonable doubt. This stems from the Majority Opinion’s rather unreasonable theory of attempting to examine the genuineness of conscience, which is next to impossible, and to acknowledge the same as a justifiable cause in a criminal trial.

(3) As an example of proving indirect facts or circumstantial evidence related to conscience, the Majority Opinion cites conscientious objection to military service based on a religious belief. In doing so, the Majority enumerates the following as key determinants as to the assertion of conscientious objection based on a religious belief: (i) the religious creed the conscientious objector believes in; (ii) whether refusal of military service is ordered by that religious dogma; (iii) whether such believers are actually objecting military service; (iv) whether said religion recognizes the defendant (conscientious objector) as an official member; (v) whether the defendant is familiar and complies with the basic tenet; (vi) whether the defendant’s assertion of conscientious objection solely or mainly follows such religious doctrine; (vii) the motive and developments surrounding the defendant’s vanguarding of the religion; (viii) if the defendant converted to said religion, the background and reason thereof; and (ix) the defendant’s period of religious belief and actual religious activities. Moreover, the Majority Opinion deems that repeated instances where people possessing conscientious belief identical to that of the defendant are already serving a prison sentence on the ground of conscientious objection can serve as an affirmation element for consideration.

It is evident that the foregoing determination criteria pertain to a specific religion. According to such standard, the genuineness of the conscience of Jehovah’s Witnesses is highly likely to be recognized. This is because conscientious objection is ordered under said religious doctrine, and most believers are serving a prison sentence for having objected to military service on conscientious grounds. This is easily understandable noting that most cases involving conscientious objection are related to Jehovah’s Witness. However, deeming that conscientious objection can be generally recognized as a justifiable cause under the Military Service Act if presenting and satisfying the determination criteria that pertain to a specific religion is confusing means and ends. Although it is apparent that the Majority Opinion’s legal doctrine and interpretation do not apply solely to Jehovah’s Witnesses, the Majority Opinion does not express its view on what the standard is for determining cases where conscientious objection is asserted by Catholics, Protestants, Buddhists, etc. whose religious doctrine does not command conscientious objection and followers have not served an actual prison sentence. In short, it is unclear as to whether other religious believers (excluding Jehovah’s Witnesses) need to submit prima facie evidence in a criminal proceeding. If the Majority Opinion’s position were to be followed, then assertion of conscientious objection by these religious followers is unlikely to be accepted.

As adequately pointed out by the Dissenting Opinion, the Majority Opinion’s stance cannot but be regarded as going against the Constitution declaring the principle of the freedom of conscience and religion, and the principle of separation between church and state.

(4) Meanwhile, it would not be tenable to regard conscience as referred to in conscientious objection as a devout, firm, and sincere belief that constitutes a justifiable cause for the reason that the foregoing standard presented by the Majority Opinion is satisfied. According to the Majority Opinion, a devout, firm, and sincere belief as a symbol of conscience should be neither flexible nor variable and should neither be conciliatory nor tactical depending on circumstances. This can be perceived to the effect that there should be consistency in an individual’s action based on conscience.

However, based on the above, if there is a strong and genuine voice within that not refusing military exercises and bearing of arms will destroy the value of one’s existence as a human being, other activities pertaining to that person, such as paying taxes, contributing to the nation should also be refused. This is because the State uses taxpayers’ money to organize the military, develop weapons, and support other citizens to participate in military exercise and bear arms. If an individual refuses to perform such act but accepts supporting another’s act, this cannot be deemed as not being conciliatory.

Propagation and missionary work are inherent traits of all religions, and this is likely to be true for a religion that adopts the doctrine of conscientious objection. However, as the number of such religious believers increase, the number of soldiers may decline; and in an extreme case, the military itself may disappear. If such situation were to arise, it would become impossible to defend the nation from foreign enemies, and the freedom of conscience and the freedom of religion cannot be guaranteed. Ultimately, even where military service is refused on a conscientious ground, this only pertains to that specific person and is no different from taking the stance in which one will enjoy the freedom of religion while hoping that others will make the sacrifice and devote themselves to safeguarding the nation by serving in the military. Such inherent nature embedded in conscientious objection is inconsistent and contradictory, and whether that belief is devout, firm, and sincere is questionable.

(5) According to the Concurrence with the Majority Opinion expressed by Justice Kwon Soon-il, Justice Kim Jae-hyung, Justice Cho Jae-youn, and Justice Min You-sook (hereinafter “Concurrence with the Majority”), conscience that is the disputed issue in conscience objection is a matter pertaining to fact-finding regarding its existence and degree rather than substance and cannot be proven. Moreover, the Justices Concurring point out that, if all conscientious objectors should be punished on the ground that proof of conscience is de facto improbable and difficult, this is the same as deeming that there is proof of guilt. Inasmuch as doing so contravenes the fundamental principle of criminal law (in dubio proreo), deeming that conscientious objection cannot be asserted as a justifiable cause due to difficulty of proof is confusing means and ends.

The Dissenting Opinion clearly opines that conscientious objection cannot be included in “justifiable cause” under Article 88(1) of the Military Service Act. In other words, premised on the fact that the Majority Opinion’s interpretation that conscientious objection constitutes a justifiable cause is erroneous, the Dissenting Opinion points out the following problems arising therefrom, i.e., improbability of examining the genuineness of conscience under a criminal justice procedure, absence of means to prove the legitimacy of such procedure and reasonableness of outcome, and occurrence of a State’s new form of infringement of the freedom of conscience.

Although the Concurrence with the Majority Opinion asserts that conscience is a matter of existence and degree rather than substance, this is nothing more than an empty logic disregarding the fact that no relevant standards exist to determine the same. Determining whether an individual’s conscience is “devout, firm, and sincere” or setting the boundary on the degree of “destruction of an individual’s value of existence as a human being” if such conscience is not followed is next to impossible, and proving the same by the prosecution is even more difficult. The principle of clarity should be followed when interpreting and applying criminal law, and a criminal defendant ought to face trial on the principle of in dubio proreo. In having interpreted the substantive law according to which procedural resolution is impossible, this is the same as having shown recklessness by claiming that the latter comes before the former. If the Majority Opinion’s position is that in a case where a defendant asserts conscientious objection, a court should acquit the defendant barring special circumstances given that proving whether conscience is genuine by the prosecution is improbable, then this can be preferably deemed as a consistent attitude. However, as in the instant case, we do not agree with the Majority Opinion’s view that conscience is provable by way of having the defendant submit prima facie evidence to support the genuineness of conscience and having the prosecutor impeach such evidence, given that it is devoid of any constitutional basis.

The Justices Concurring with the Majority state that, inasmuch as conscience has both an inner and outer trait, it may be expressed during the course of an individual’s life (such as school life and social experience); therefore, conscience may be proven through such outwardly expressed form.

Under the current Military Service Act, all male citizens of the Republic of Korea are required to undergo draft physical examination in the year of attaining the age of 19 and may be issued an enlistment disposition around the same time. Generally, the age of 19 is when students graduate from high school, so there lives would have been centered around school life and studying. The Majority Opinion presented the criteria for determining the genuineness of conscience regarding the assertion of conscientious objection based on a religious belief, but such criteria are confined to a specific religion as seen earlier. If a male citizen of the Republic of Korea, who does not follow a religion that adopts the doctrine of conscientious objection or who has no religion, were to form an inner conscientious belief on non-violence and pacifism, completes mandatory education (graduating high school), receives the draft written notice for enlistment, and asserts conscientious objection, how to express such inner conscience externally is difficult to come across one’s mind. This is indicative of the fact that the Majority Opinion’s logic is confined to believers of a specific religion and requires the remainder of the public to self-prove one’s genuine conscience; moreover, it is a forceful rationalization that determining and proving genuine conscience are possible when in fact they are not.

(6) Freedom existed long before the founding of a State and was not granted to the people following the State’s foundation. In that sense, citizens have the right to enjoy freedom and a State has only the duty to confirm and guarantee the same. In enjoying that freedom, there is no need for the people to prove whether such freedom is genuine or not, and a State cannot determine as to whether the same is genuine or not.

The Majority Opinion’s stance further narrows the scope of conscience protected by the Constitution and goes against the national duty granted by the Constitution. The Majority also deems that, in a criminal trial involving the violation of the current Military Service Act, genuine conscience can be examined, and on that premise, the refusal of military service according to such genuine conscience that is devout, firm, and sincere constitutes “justifiable cause” to exclude the constituent elements. However, as seen earlier, conscience cannot be the subject matter of examination by neither the State nor criminal trial courts. Under a legal system that has the alternative military service, there may be a need to examine the genuineness of conscience; however, examination as an administrative procedure to grant opportunity of alternative military service and examination to render criminal punishment are two separate things. If following the Majority Opinion’s interpretation, on the premise of punishment, having a State determine genuine conscience based on the standard confined to a specific religion that cannot be said to be closely related to determining such genuineness does not guarantee the freedom of conscience to the fullest, but rather, constitutes another form of infringement or suppression of the freedom of conscience.

E. Conscientious objection according to a religious belief is not an issue to be resolved through the freedom of conscience under the Constitution. Rather, it ought to be approached as a policy-based issue on whether to introduce the alternative military service system.

(1) As noted in the Dissenting Opinion, conscience objection historically originated from the Western society’s Christian faith, and most conscientious objectors who were punished in Korea are Jehovah’s Witnesses, which belong to a sect of Christianity.

In contrast to the West with a deeply-rooted tradition of Christianity, the religious history is relatively short and there exist diverse religions in Korea. Against such background, there was a strong sentiment within the Korean society that resisted or did not tolerate conscientious objection. The present situation is not that different from the past. However, there appears to be a broader common understanding to be considerate of diversity in values and the minority, and shifts in perception are being observed that rather than unilaterally punishing conscientious objectors (who are mostly Jehovah’s Witnesses), relief measures need to be in place, such as the alternative military service system, so that those conscientious objectors who are also members of our society ought to be given the opportunity to perform their responsibilities and contribute to society. This is well demonstrated in the previous rulings of the Constitutional Court, i.e., the provision on punishing conscientious objection under the Military Service Act was deemed as not unconstitutional but then determined that Article 5 of the same Act that does not provide for alternative military service as a type of military service did not conform to the Constitution.

In other countries, no cases existed where conscientious objection was immediately acknowledged upon the provision of the freedom of conscience under the constitution. Moreover, as stated in the Majority, no cases were found where not-guilty verdicts were handed down as to acts of refusing military service based on conscientious objection. Rather, most countries appear to have provided relief for conscientious objectors through legislation, such as the introduction of alternative military service upon gathering public feedback and forming public consensus. In short, the rationale that conscientious objection should be recognized as the freedom of conscience without question is not acceptable. Historically, other countries tackled and resolved the issue of conscientious objection through extensive efforts in forming social consensus and understanding.

(2) In view of the cases of other countries that provided for the freedom of conscience under the constitution and institutionally recognized conscientious objection, as well as changes in the perception among Koreans as to conscientious objection based on a religious belief, etc., conscientious objection based on a religious doctrine followed by an individual cannot be included under and guaranteed as the freedom of conscience as a matter of course; rather, the matter of whether to provide relief for conscientious objectors ought to be dealt with by legislative measures in consideration of public sentiment and current state of the nation. The fact that conscientious objection based on a religious belief had been dealt with in the past as the issue of conscience is not a consequentially logical argument to exempt military service on the ground that the conscientious objectors are Jehovah’s Witnesses. The matter was merely regarded as such by applying the constitutional principle on the freedom of conscience.

Examining genuine conscience and determining whether conscientious objection constitutes justifiable cause according to the standard presented by the Majority Opinion is merely paving the road for exempting military service for specific religious believers. This is nothing more than a State justifying a specific religious doctrine, which does not even adopt conscientious objection, to be applied to the issue of the freedom of conscience under the frame of a legal doctrine. In light of Korea’s historical background and current situation, not only is this difficult to accept, but it is also a retrogression of the global efforts toward resolving the issue of conscientious objection through legislation such as the introduction of alternative military service.

F. As regards the instant case, it would be tenable to render a final judgment following the legislative amendment of the Military Service Act that pertains to the provision on the type of military service.

Recently, the Constitutional Court rendered a constitutional nonconformity decision regarding Article 5 of the Military Service Act that does not provide for alternative military service as a type of military service, and ruled that the same would become ineffective as of January 1, 2020 unless amendment is made by December 31, 2019. From an empirical standpoint, a long and painful process awaits to form a concrete system related to the content, permissible scope, and examination method of alternative military service. However, if Article 5 thereof becomes invalid, this creates a serious problem where the basis for the State to impose military service duty on citizens disappears; therefore, barring extenuating circumstances, we expect the Military Service Act to be revised to include the introduction of an alternative military service system by no later than late 2019. Moreover, if the revised Act were to include a transitional provision as to those indicted for having refused military service on a conscientious ground (such as the Defendant of this case), the instant case can be handled accordingly. In the same vein, the Constitutional Court appears to have set a provisional time limit for statutory revision in rendering a constitutional nonconformity decision as to Article 5 of the Military Service Act.

Transition from a previous legal doctrine (uniformly subjecting criminal punishment against conscientious objection) to a new legal doctrine (exempting military service and granting the opportunity of alternative military service through legislative amendment) is not only what the majority of the public expects but is also a way to reasonably tackle the issue of conscientious objection without confounding the overall legal order.

Nevertheless, amid the situation where legislative amendment has not taken place to introduce the alternative military service system, the Majority Opinion seeks to hand down a ruling by applying Article 88(1) of the current Military Service Act. Moreover, on the premise that the Military Service Act’s provision on the type of military service is unconstitutional, the Constitutional Court tentatively applied the same Article 88(1) to prevent any vacuum in imposing the duty of military service. That being said, Article 88(1) should not be construed and applied as is to determine guilt or innocence regarding acts of conscientious objection because the foregoing provision is merely provisional and has an unconstitutional aspect. If following the Majority’s logic, the lower court hearing the remanded case should examine whether the Defendant-asserted conscience is devout, firm, and sincere and decide whether to convict or acquit the Defendant. If based on the revised Act, the Defendant may even be exempt from alternative military service even after having been acquitted, or may be deprived of the opportunity to perform alternative military service that would have been granted if not having been convicted. This conclusion is the formation of a new legal order that not only the Defendant (who is willing to perform alternative military service) but also what the majority of the public would not have anticipated. At the risk of confounding the nation’s legal order, the Majority’s attempt to conclude this case based on an interpretation that is devoid of constitutional logic and unprecedented in other countries is incomprehensible is an understatement. The Majority Opinion not only strays from judicial precedents that have historical significance related to the freedom of conscience but also retreats from the legal doctrine on the freedom of conscience by interpreting and applying an unconstitutional statutory provision and is merely a dogmatic judgment going against the public’s constitutional intent.

Therefore, judgment on this case ought to be pushed back to a period when it can be resolved under the frame of the alternative military service system that the National Assembly is expected to introduce. Doing so would be the road to arrive at an honorable conclusion for the defendants who are currently indicted on the charge of violating the Military Service Act, the prosecutors who indicted them, the courts that are tasked with hearing their cases, the National Assembly that is responsible for legislation, and the constituent members of society who value tolerance and embracement. Furthermore, it would be paving the way to overcome any social conflict and form public consensus surrounding conscientious objection that is regarded as one of the most sensitive issues within our society.

G. We also do not wish for criminal punishment against the Defendant.

However, based on the interpretation of the current Military Service Act in which certain provisions have been rendered as unconstitutional, it is difficult to accept the Defendant’s act of conscientious objection as lawful under the current legal system that does not have an alternative military service system in place.

The only way to acquit the Defendant is through a constitutional legislative amendment, which is to take place soon, and through a new legal doctrine that accepts conscientious objection along with the introduction of an alternative military service system.

As above, we respectfully concur with the Dissenting Opinion criticizing the Majority Opinion’s position as devoid of logic.

12. Concurrence with the Dissenting Opinion by Justice Jo Hee-de and Justice Park Sang-ok

The Majority Opinion’s interpretation is not acceptable as it disregards our history and the Constitution. Being oblivious of history and misinterpreting the Constitution puts the nation’s future at risk. On this point, we concur with the Dissent as below.

A. Countries acknowledging the so-called “conscientious objection” as referred by the Majority Opinion are Germany and other European countries.

(1) The former Basic Law of West Germany, which was established in 1949, explicitly provided for the right to conscientious objection as a basic right in Article 4(3) by stipulating that “No one shall be forced to participate in military exercises or bear arms against his or her conscience. Relevant details shall be prescribed by federal law.” Through the revision in 1956, the Basic Law provided for both the duty of military service by conscription and alternative military service for conscientious objectors under Article 12(2) by stipulating, “A person refusing to receive military training and bear arms on a conscientious ground may be subject to perform alternative military service. The period of alternative military service may not exceed that of military service. Relevant details shall be prescribed by law; Provided, That said Basic Law shall not infringe the freedom of conscientious decision and shall permit alternative military service irrelevant to the military.” In 1968, the provision on military service and alternative military service under the Basic Law was amended to Article 12a according to which the basis for military service duty became explicit. Paragraph(1) stipulates that “All males, from the age of eighteen, may be subjected to serve in the military, the federalborderguardorthecivildefensecorps” and Paragraph(2) provides for the duty of alternative military service of conscientious objectors similar to the content of the former Article 12(2).

Based on each provision under the Basic Law, the conscription system was implemented through the establishment of the Military Service Law in 1956, the Alternative Military Service Law was enacted in 1960, and the Law on Refusal to Perform Mandatory Military Service on Conscientious Grounds was established in 1983.

Following the unification of East and West Germany in 1990, the Basic Law of the Federal Republic of Germany (hereinafter “German Constitution”) and other relevant statutes include similar provisions.

(2) In having witnessed countless number of people perish and international peace and order collapse during World Wars I and II caused by Imperial Germany, the people of Germany still feel a deep sense of regret and shame for having caused such a war of unprecedented scale. Furthermore, based on a constitutional resolution to completely sever from militarism and state socialism, the right to conscientious objection was explicitly stipulated under the former Basic Law of West Germany and the same was provided for under the German Constitution following unification.

(3) There are slight differences in the legislative and amendment history of the constitution and war history between Germany and other European countries. Nevertheless, as was the case of Germany, countries like the Netherlands, Switzerland, Portugal, and Russia that witnessed the devastations of World Wars I and II either explicitly provide for the right to conscientious objection through establishment and amendment of the constitution or by law.

B. However, the Constitution of the Republic of Korea is fundamentally different from that of Germany and other European nations.

(1) Based on the long historical tradition of respecting the humanitarian ideal (弘益人間), Korea has pursued a good-neighbor policy and the principle of live-and-let live, has not organized an army for the purpose of invading another country or started an aggressive war; on the other hand, the country suffered from several foreign invasions following the Joseon Period.

Prior to the Japanese Invasion of Korea in 1592, there was a need to develop countermeasures against foreign enemies, but it was frowned upon as it would only perturb public sentiment. The royal court at the time was often neglectful in carrying out military training and frequently exempted the duty of military service. When foreign enemies raided, the royal forces got cold feet by their power, lost the will to fight, and ran away. King Seonjo (14th King of the Joseon Dynasty) deserted Hanyang (capital city of Joseon) and fled to Euiju. The people blocked the King’s refuge way by shouting obscenities, and slaves burned the Slave Ownership Paper. The royal court struggled in vain to rally the royal forces. In a defenseless state, Joseon’s territory was overrun by enemy forces, and countless number of people were killed by guns and swords or taken away. The active role of the naval forces led by Admiral Lee Sun-sin and the loyal troops all across the country paved the way for a counterattack, and, at last, succeeded in driving out the enemy forces and ending the war; however, the postwar effect was quite destructive.

In the second Manchu Invasion in 1636, King Injo (16th King of the Joseon Dynasty) had to surrender and be forced to engage in the ritual of kneeling three times and bowing to touch his head nine times on the ground (三拜九叩頭), accompanied by three prime ministers and six ministers, to the emperor of the Chinese Qing Dynasty at Samjeondo (scene of King Injo’s surrender). The Crown Prince was taken as a hostage, and numerous government officials and ordinary citizens were either captured or killed.

During the Late Joseon Dynasty, Joseon was an arena of the struggle among world powers, resulting in the dissolution of the military and annexation by Japan upon losing national sovereignty. National patriots committed suicide as an act of defiance, and carried on independence movements at home and abroad by risking their lives but were not enough to prevent Japan’s invasion and brutality. Kang Wu-gyu was among the large number of patriots who became victims of national independence. “A warm spring breeze blows even on the scaffold. I remain gloomy as I have a breath of life in my body but lack my homeland.” These lines were recited by Kang (also known as the Death Poem) before being executed at the Seodaemun Prison. Issues relating to wartime forced labor during the Japanese colonial rule period and sexual enslavement of Korean women by the Japanese military have yet to be settled.

Following the country’s independence, North Korea concluded the General Security of Military Information Agreement with the former Soviet Union according to which it received military support and beefed up military exercise. If war were to break out in the Republic of Korea, the powers that be boasted that they will march north and have lunch in Pyeongyang but did not strengthen national defense power (*A figure of speech to mean that South Korea could easily win a war against North Korea). Just before the outbreak of the Korean War, a large number of soldiers were on vacation. Based on superior military power, North Korea advanced unresisted to the south and occupied the area near Nakdonggang (River). Following the United Nations Forces and the Student Volunteer Army taking part in the war, the Korean Army was able to brace up and reclaim Seoul before advancing to the Yalu River. However, in having been thrust back to the south by the Communist Chinese Army, the two Koreas engaged in a fierce battle at the 38th parallel before reaching an armistice. The entire country was burnt to the ground as a result of the Korean War, and caused massive deaths and property damages.

(2) Drawing from the nation’s horrendous and painful history, the Constitution provides for a State’s duty to preserve national security and defend our homeland, and the people’s duty of national defense.

The preamble of the Founding Constitution established in 1948 states as follows: “We, the people of Korea, proud of a resplendent history and traditions dating from time immemorial, upholding the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919 and the democratic ideals of the April Nineteenth Uprising of 1960 against injustice, having assured the mission of democratic reform and peaceful unification of our homeland and having determined to consolidate national unity with justice, humanitarianism, and brotherly love[.]” In the main text, the Founding Constitution provides for the guarantee of fundamental rights including the freedom of religion and conscience (Article 12), renounces any and all aggressive wars and grants the Armed Forces with the sacred mission to defend our homeland (Article 6), and imposes all citizens to perform the duty of defending our homeland as prescribed by Act (Article 30).

The underlying principle of the Founding Constitution remains intact in the current Constitution that was amended in 1987 and applied in the instant case. The relevant provisions and its contents in the current Constitution are explicated in the Dissenting Opinion.

(3) Since the Constitution’s establishment, the duty of national defense is stipulated as a fundamental duty that ought to be imposed on all citizens, but, on the other hand, any exceptions to performing such duty and grounds for exclusion (including the right to conscientious objection) are not provided for thereunder. In addition, nowhere in the Constitution does it normatively express that the freedom of conscience or religion is deemed superior to that of the duty of military service.

Based on deep regret and shame for having started an aggressive war of unprecedented massive scale, that is, World Wars I and II, Germany and several European nations explicitly provide for the right to conscientious objection as a fundamental right under the constitution or law, or provide for exceptions as to the duty of military service under the conscription system.

For Korea to not repeat the painful history of invasion by foreign enemies, the Constitution was enacted to fulfill the State’s mission of preserving national security and national defense. This is where the historical background motive differs among Korea, Germany, and other European countries.

At the time when the Constitution was enacted, there was social controversy over conscientious objection centering on followers of certain Christian sects including Jehovah’s Witnesses. From around 1950, regarding conscientious objection by Jehovah’s Witnesses as an act of military service evasion, said act was subject to criminal punishment according to the relevant provision of the Military Service Act. Around that time, there have been several legislation cases (similar to that of the former Basic Law of West Germany) to explicitly provide for the right to conscientious objection or alternative military service under the Constitution as a way to resolve normative clashes with the duty of military service. In light of such fact, the constitutional issue arising from conscientious objection (that is, the clash between the guarantee of the freedom of conscience and the duty of national defense) has been a widely-perceived social and normative phenomenon at the time of enacting and amending the Constitution, and was not something that the Constitution could not have predicted.

Against such backdrop, not having provided a constitutional basis on conscientious objection in the current Constitution ought to be deemed as an intentional choice of the Constitution’s legislator to exclude the same from a constitutional normative perspective, rather than as a legislative overlook or defect regarding the Constitution or relevant statutes.

In Korea, for conscientious objection to be recognized as a “justifiable cause” under Article 88(1) of the Military Service Act that exempts military service under the same Act according to which the duty of national defense under the Constitution was materialized, the right to conscientious objection needs to be newly inserted under the Constitution or explicitly provided for in the relevant law within the scope conforming to the current Constitution.

(4) It may be feasible and desirable for a State to take measures, such as alternative military service, that are deemed considerate of those rejecting the duty of military service stipulated by the Constitution or law on religious grounds. On the other hand, if conscientious objection were to be recognized by means of stretching the statutory construction of “justifiable cause” under Article 88(1) of the Military Service that was legislated upon the legitimate delegation of the Constitution as a key measure to ensure the practicality in the performance of the duty of military service under the Military Service Act, this is clearly not acceptable from a normative or a practical standpoint in light of the Constitution’s fundamental ideology on preserving national security and defending our homeland, and our nation’s unique historical background, etc. relating thereto. As legitimate grounds for restricting the freedom of conscience, this would not only undermine the constitutional value of the duty of national defense that aspires to ensure the constitutional purpose of preserving national security and defending our homeland, but would also cause social confusion by deeming a State’s legitimate exercise of public power as unlawful.

While somewhat belated, the Constitutional Court’s nonconformity decision has ignited efforts led by the National Assembly to introduce the alternative military service system through legislation, which is expected to take place in the not too distant future. Against this background, it would not be timely to suddenly overturn the established legal doctrine of the Supreme Court’s en banc decision that conforms to the constitutional interpretation theory.

(5) As noted earlier, based on the established legal doctrines of the Supreme Court and the Constitutional Court related to the constitutional provisions on the dignity and value of humans and the guarantee of fundamental human rights (Article 10), the freedom of conscience (Article 19), the duty of national defense (Article 39(1)), and the general principle of the restriction of fundamental rights and the proscription of the infringement of the essential aspect of freedom and right (Article 37(2)), the right to conscientious objection can neither be acknowledged from the constitutional interpretative theory nor can conscientious objection be naturally derived from the freedom of conscience as a constitutional value that is superior to that of the duty of national defense. There is also no room on the premise to construe that conscientious objection constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service Act. Therefore, the Majority Opinion deeming that the refusal of enlistment on conscientious grounds such as a religious faith may be included under “justifiable cause” is an acknowledgment of exceptions to the duty of national defense that the Constitution did not originally intend, which apparently runs counter with the Constitution.

C. In view of such construction of the Constitution, the so-called “conscientious objection” referred to in the Majority Opinion cannot be included in “justifiable cause” under Article 88(1) of the Military Service Act; moreover, even based on specific and individual construction of the same in this case according to the Majority Opinion’s position, the Defendant has no “justifiable cause” to refuse enlistment.

(1) As stated in the Majority Opinion, if “justifiable cause” under Article 88(1) of the Military Service Act is viewed as an issue to be determined by a judge on a case-by-case basis, there is a need to examine the specific content of the Defendant’s assertion and then determine whether the same constitutes “justifiable cause.”

(2) Through the petition, written statement of appeal, and written statement of final appeal (page 32 and the ensuing pages) that the Defendant self-prepared and the oral pleadings on the date of trial, the Defendant, as a Jehovah’s Witnesses, asserts the “right to conscientious objection” on the following grounds: (i) according to the doctrine of Jehovah’s Witness, educate people to engage in national efforts toward disarmament and cessation of war and to achieve world peace; (ii) as the right to exercise power was granted by God, upholding the secular law and paying taxes are faithfully performed as such duties were bestowed upon us by God, not because of fearing punishment upon carrying out the same; and (iii) in cases where the legal order of a State and that of a religious doctrine contradict one another, the command of God that is superior ought to be followed.

(3) The Defendant appears to be refusing military service based on a religious conviction, not based on the freedom of conscience.

The Majority Opinion defines “conscientious objection” as an act of refusing the performance of military service, including the participation in military exercises and bearing arms, on the ground of a conscientious decision that was formed according to a religious, ethical, moral, philosophical or other similar motive. While it is unclear in the case of the Defendant, Jehovah’s Witnesses tend to assert that serving in the military that carries guns and kills enemies goes against their conscience. In that sense, there is room to deem that conscientious objection asserted by a Jehovah’s Witness as objecting to military service based on the freedom of conscience.

In Germany and other parts of Europe, a sense of reflection came to be naturally formed that performing military service, including participation in military exercises, goes against the traditional Christian belief, and that the same runs counter to the conscience of humans after having directly witnessed or having learned from World Wars I and II that caused the loss of countless numbers of lives. Accordingly, the right to conscientious objection is provided for in the constitution or by law in Germany and most European nations.

In the case of Korea, given that the country only experienced invasions by foreign enemies and the military had never caused massive killings by starting an aggressive war, no circumstances exist to deem that serving in the military by carrying a firearm either goes against conscience or requires to form such conscience to refuse the same.

The Majority Opinion, which is premised on the view that the Defendant’s aforementioned assertion constitutes an objection to military service based on the freedom of conscience, is incomprehensible as it exaggerates the Defendant’s argument without any basis and as it is devoid of logic.

(4) Regardless of whether the Defendant’s refusal of military service is based on the freedom of conscience or a religious belief, the Defendant’s assertion purporting that serving in the military that carries guns and kills enemies goes against the freedom of conscience (as stated by the Majority Opinion and some Jehovah’s Witness believers) cannot be deemed as constituting “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.

Based on the history of not having started an aggressive war unlike Germany and other European countries, and awakening from the painful history of foreign invasion resulting in countless number of people being killed and losing national sovereignty, the Constitution of Korea renounces all types of aggressive wars, imposes the Armed Forces with the sacred mission of preserving national security and defending our homeland, and imposes the duty of national defense on all citizens. Amid repetitive invasions by foreign enemies, all citizens of Korea, regardless of social position and economic status, as constituent members of society have shared the duty of national defense through sacrifice and a sense of responsibility to defend the nation by volunteering in the raising of righteous troops or monk soldiers. Led by independent movement activists and the Provisional Government of the Republic of Korea, Korea struggled in various ways to fight to become independent from the Japanese colonial rule and succeeded in reclaiming national sovereignty. Following the establishment of the Republic of Korea, North Korea provoked the Korean War during which the Student Volunteer Army was organized and took part in the war. The Defendant’s conscientious objection on the premise of viewing the army as a group that kills with guns cannot be accepted as a “justifiable cause” since it goes against the Constitution.

(5) The Defendant is even asserting conscientious objection in linkage with the Jehovah’s Witness doctrine of national disarmament, pacifism, refusal to pay tax, and religious superiority.

Article 20 of the Constitution declares the principle of separation between church and state by providing that “all citizens shall enjoy freedom of religion” (Parag. (1)) and “no state religion shall be recognized, and religion and state shall be separated” (Parag. (2)).

The freedom of religion, as a fundamental right of freedom under the Constitution, means a passive right of defense that an individual’s religion in essence cannot be infringed by state power. It is not regarded as an affirmative right that each citizen can exercise as a means to achieve one’s subjective purpose related to a religion.

In the instant case, the reason for the Defendant asserting the right to refuse military service including the participation in military exercise and bearing arms on a religious belief may appear, on the surface, to be based on the fact that the same is strictly prohibited under the Jehovah’s Witness doctrine that the Defendant follows as pointed out by the Majority. However, in viewing the substance of the Defendant’s assertion, the Defendant seeks to achieve the following purposes: (i) upon being acknowledged the right to conscientious objection and exempt from criminal punishment under the Criminal Act, maintain one’s religious life that simply adheres to pacifism and passively avoid any situation within one’s realm of having to use armed force against another, and (ii) based on expressing or revealing such actions, spread one’s religious doctrine to other people and educate them on the doctrine adhering to disarmament, pacifism or conscientious objection, thereby forming the perception that the exercise of the right to conscientious objection based on a religious belief is universal. This is the same as pursuing the religious objective, similar to a political ideology, of disarmament, cessation of war, and establishment of peace from a national and global-wide perspective.

In light of the inherent nature of the freedom of religion that merely ends at exercising the passive right of defense, i.e., demanding a State to not unlawfully intervene or force an individual’s formation and realization of a religion, seeking to curb the efforts of an individual to influence the outer world and actively change and form a society according to one’s religious belief and decision exceeds the constitutional boundary that guarantees the freedom of religion. Within the constitutional frame of fundamental rights that regards the assurance of human dignity and free manifestation of individual personality as the utmost value, the freedom of religion should only be seen as a way for an individual to maintain one’s religious identity and homogeneity by granting the individual to exercise the right of defense against the State’s forceful demand.

It is undeniable that aspects of the Defendant’s assertion are either consistent with or similar to traditional political ideologies or platforms, such as pacifism, anti-war sentiment, and anarchism. Moreover, it cannot altogether be ruled out that such religious ideologies may be put to bad use as a political ideology of a specific political party or faction seeking to gain political power by adhering to the same ideologies. If the right to conscientious objection is accepted as a constitutional value and justification of the same is granted, such risk is likely to further increase. If this were to occur, this would shake the State’s neutral position toward religion and result in the State either supporting or protecting a specific religion.

In this case, acknowledging the Defendant’s right to conscientious objection exceeds the bounds of the freedom of religion guaranteed by the Constitution and contravenes the principle of the separation between church and state.

(6) Inasmuch as the fundamental rights related to an individual’s spiritual life, such as the freedom of conscience guaranteed by Article 19 of the Constitution, cannot regulate the inner and spiritual aspects of a person, it cannot be restricted by any law; however, if such aspects are externally revealed, it may be restricted for the purpose of preserving national security, ensuring public order, maintaining good morals, and realizing public welfare (see, e.g., Supreme Court Decision 82Do1219, Jul. 13, 1982). An individual’s conscience is subjective and that conscience of all nature (including irrational, unethical, and antisocial aspects) needs to be protected under the freedom of conscience. Be that as it may, the notion that “a State’s legal order remains valid so long as it does not go against an individual’s conscience” means the dismantlement of legal order and the dissolution of a community state, and is thus impermissible. No fundamental right to freedom can serve as a basis to dismantle a State and dissolve legal order, and cannot be interpreted as such (see, e.g., Constitutional Court en banc Decision 2002Hun-Ga1, Aug. 26, 2004).

As recognized by the Majority Opinion, the issue of the instant case does not relate to a pure inner conscience that cannot be the subject matter of regulation under positive law. Rather, the issue pertains to the clash between the legal order of a State (such as the Military Service Act according to which the constitutional duty of defense materialized) and the legal order of a religious doctrine that the Defendant follows upon the Defendant’s refusal to perform the duty of military service imposed by the Military Service Act on a religious conscience and seeking to realize one’s conscience by passive omission that goes against the country’s legal order. That being the case, based on the interpretative theory of the current Constitution, the right to conscientious objection is difficult to recognize. Nevertheless, doing so would be acknowledging that an individual’s subjective and inner conscience has absolute superiority over a State’s legal order, and would also be indicative of the de facto dismantlement of a State’s legal order and the dissolution of a community state based on an individual’s conscientious decision. This obviously exceeds the boundary of the freedom of conscience guaranteed under the Constitution from a legal principle standpoint and is contrary to the theory on constitutional fundamental rights.

(7) Article 11(1) of the Constitution provides, “All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status” and Parag. (2) of the same Article provides, “No privileged caste shall be recognized or ever established in any form.” Meanwhile, the preservation of national security and defense of homeland that the State aspires to realize through the duty of national defense, by nature, ought to be determined in line with the purpose of maintaining adequate level of defense power against the fast-changing state of affairs at home and abroad. That being said, the legislative branch was granted broad power in setting the scope of military service obligors or the requirements for military service exemption under the Military Service Act (see, e.g., Constitutional Court en banc Decision 2002Hun-Ba45, Nov. 28, 2002).

As pointed out in the Dissent, the Military Service Act provides for the universal conscription system and the compulsory draft system, while narrowly providing for the personal and subjective grounds to be exempted from military service to carry through the principle of the equal sharing of military service burden, namely, criminal record, mental and physical disorder, and whether having defected from North Korea. Other factors, such as an individual’s religious doctrine or faith and value, are not provided for as grounds for military service exemption, and interpretation that it can be is not possible. Inasmuch as the grounds based on a specific religious doctrine are inherently different from the grounds for military service exemption, recognizing the right to conscientious objection and deeming the same as a “justifiable cause” to refuse enlistment would be ultimately contravening the principle of the equal sharing of military service burden. Moreover, it would be discriminating people who believe in that specific religion and who do not, thereby contradicting the principle of equity under the Constitution and is impermissible under the same as it constitutes the formation of a privileged caste based on a religion.

D. In reviewing the issues pertaining to this case as above, the following conclusion can be derived.

(1) The Defendant asserts that there is a “justifiable cause” for his refusal to enlist. As a Jehovah’s Witness, he aspires to educate others on the need for national disarmament and that the command of God is superior to that of a State’s legal order and should be followed.

(2) The Majority Opinion deems that there is room to regard the Defendant’s so-called “conscientious objection” as constituting “justifiable cause.”

(3) The rationale for not accepting the Majority Opinion’s legal doctrine and conclusion that disregards the Constitution is summarized below.

First, based on deep regret for having started World Wars I and II and upon having witnessed the devastations of war, Germany and several European nations explicitly provided for the right to conscientious objection under the constitution or by law and introduced the alternative military service system. Awakening to the painful history of having been invaded by foreign enemies and having been under colonial rule, the Constitution of the Republic of Korea strictly provides for the preservation of national security and homeland defense and the duty of national defense, and does not have exceptional provisions on conscientious objection either in the Constitution or other statutes. The legislator’s intent and decision cannot be lightly regarded given that the issue is directly related to national security and homeland defense. In light of the legislation and amendment history of the Constitution and the legislator’s decision, etc. the so-called “conscientious objection” cannot be acknowledged without amending the Constitution and relevant laws or enacting new laws. Moreover, leaving room to acquit conscientious objectors rather than assigning them to alternative military service should not happen.

Second, the Majority Opinion says that while the freedom of conscience realization can be restricted by law, its inherent substance cannot be violated, and that caution and prudence were needed when restricting the freedom of conscientious realization by passive omission. According to the established legal doctrine of the Supreme Court and the Constitutional Court, the freedom of conscience formation and the freedom of conscientious decision are deemed an absolute freedom that may neither be restricted nor is there reason to so long as it remains in the inner realm; however, the freedom of conscience expression and the freedom of conscience realization by passive omission are considered to be a relative freedom that can be restricted. The Defendant in the instant case is even asserting conscientious objection in linkage with the Jehovah’s Witness doctrine of national disarmament, pacifism, refusal to pay tax, and religious superiority. Arriving at the conclusion of acquitting the Defendant rather than assigning him to alternative military service is not only justifiable by any legal doctrine, but also may adversely affect the overall morale of the military.

Third, according to the Majority Opinion: (i) “conscientious objection” refers to a conscientious decision formed based on a religious, ethical, moral, philosophical or similar motive; (ii) “conscience” as referred to in conscientious objection falls under an inner ethical realm, is a dire voice within and is based on a devout, firm, and sincere belief; and (iii) in a specific case involving the violation of the Military Service Act where a defendant asserts conscientious objection, the foremost thing to do is to determine whether such conscience is devout, firm, and sincere. Yet, the Majority fails to provide a concrete standard that can be generally applied toward cases involving the determination of the refusal to military service based on a conscience formed by a religious, ethical, moral, philosophical or similar motive, and only presents a standard related to religious activities. It is difficult to speculate and comprehend as to how a fact-finding court will examine and determine matters based on such unclear standard. If a conscience falls under an ethical inner realm and is a dire and specific voice within, this would be next to impossible for a court to examine and determine. More so, calling on the court to do the impossible is impractical. Such problem arises from having to recognize conscientious objection by stretching the statutory construction of provisions that are not even provided for under the Constitution and relevant laws.

Fourth, the elements for consideration when determining conscientious objection based on a religious faith as cited by the Majority Opinion can merely function as distinguishing devout followers of a specific religion and cannot serve as a means to determine genuine conscientious objectors. The person objecting to military service is the person who ultimately makes that decision based on one’s conscience. A fitting comparison would be, if a person had a way of saying to those around him that he wants to marry someone, what is deemed important is that person’s final decision on who he has chosen to marry. What that person has been thinking or saying prior to that final decision is irrelevant. The same is true in the case of conscientious objection. Based on that logic, it would be appropriate to acknowledge all assertions based on a conscientious decision without examining and determining the genuineness of the same. If not and sticking to the elements presented by the Majority Opinion as the standard for determination, it would be granting special treatment to a specific religion such as Jehovah’s Witness. No matter which logic is accepted, it may result in contravening the principle of the separation between church and state exceeding the bounds of the freedom of conscience or the freedom of religion guaranteed by the Constitution, and undermining the State’s legal order. This may serve as a significant risk to our nation’s constitutional order.

For the foregoing reasons, we express our Concurrence with the Dissenting Opinion.

Chief Justice Kim Myeongsu (Presiding Justice)

Justices Kim So-young

Jo Hee-de

Kwon Soon-il

Park Sang-ok

Lee Ki-taik

Kim Jae-hyung (Justice in charge)

Cho Jae-youn

Park Jung-hwa

Min You-sook

Kim Seon-soo

Lee Dong-won

Noh Jeong-hee