헌재의 양심적 병역거부 결정에 대한 비판적 검토

Abstract

The issue of conscientious objection which has been raised mostly by Jehovah’s Witnesses has a very long history in our society. § 88 Military Service Act prescribes anyone who refuses to serve in the military without legitimate reason will be punished to imprisonment under 3 years. According to the decision of the Supreme Court, the conscientious objection does not belong to the legitimate reason. Therefore, the conscientious objectors have been punished over for 5 decades without exception. The Constitutional Court decided § 88 Military Service Act constitutional, arguing that the introduction of the alternative service belongs to the discretion of lawmakers, and that military duty is prior to the freedom of conscience. The Supreme Court ruled with similar reasoning. On the contrary, the National Human Rights Commission recommended the acknowledgement of conscientious objection and the introduction of the alternative service. However, the unilateral preference of the military duty to the freedom of conscience cannot be justified according to our constitution, which means § 88 Military Service Act is unconstitutional. That is, the paragraph contravenes the principle of harmonious interpretation of constitution, the principle of proportionality, the principle of equal opportunity, the duty of state concerning guaranteeing constitutional rights according to Article 10 of Constitution, and the principle of respect for international law. Therefore, the introduction of the alternative service is mandatary, not discretionary. It is natural the service should provide reasonable criteria, process, and contents which the people can understand, agree and accept. In conclusion, § 88 Military Service Act is unconstitutional unless it introduces the alternative service acknowledging the conscientious objection.