양심적 병역거부와 병역법 제88조 제1항의 정당한 사유

Abstract

In countries with a compulsory conscription system, the so-called “conscientious objection” refers to an act of refusal to perform the duty of military service on the ground of a conscientious decision that was formed by a religious, ethical, moral, and philosophical motive or other motives similar thereto. Article 88 of the Military Service Act of Korea punishes the avoidance of enlistment without “justifiable cause” and the issue here is whether the aforementioned conscientious objection constitutes “justifiable cause” under the foregoing Article 88. Previously, the Supreme Court of Korea and the Constitutional Court of Korea have acknowledged criminal punishment of conscientious objectors on the grounds delineated as follows: (i) in principle, “justifiable cause” as prescribed by Article 88(1) of the Military Service Act (hereinafter “instant penal provision”) is confined to causes that cannot be attributable to a non-performer of military service duty, such as illness; (ii) the freedom of conscience propounded by a conscientious objector is not superior than the duty of national defense; (iii) whether to impose criminal punishment against a conscientious objector or permit alternative military service of the same is a matter of broad legislative discretion; and (iv) in view of our nation’s security atmosphere, the non-existence of an alternative military service system cannot be deemed as infringing the freedom of conscience in contravention of the over-breadth doctrine. Discourse regarding the issue of conscientious objection had been replaced with the issue of alternative military service. In other words, the alternative military service system needs to be introduced to recognize conscientious objection, and criminal punishment of conscientious objectors is inevitable insofar as the same is not in place. Moreover, those in favor of recognizing conscientious objection is premised on the introduction of the alternative military service system. Recently, the Constitutional Court handed down a constitutional nonconformity decision to the effect that alternative military service ought to be permissible for conscientious objectors, which in turn may be regarded as the issue of conscientious objection having been fundamentally resolved. However, inasmuch as the issue of conscientious objection precedes that of alternative military service, whether to criminally punish conscientious objectors is a matter of permitting conscientious objection, and thus, pertains to the construction of “justifiable cause” as defined by the instant penal provision. The subject case is clear on this point and tackles the issue of conscientious objection through a direct interpretation of “justifiable cause” under Article 88(1) thereof. In the subject case, the Supreme Court held that, unlike grounds for exclusion of illegality or exclusion of responsibility, “justifiable cause” under the instant penal provision should be construed by factoring in a defendant (conscientious objector)’s individual and personal circumstances so as to realize well-grounded reasonableness. Furthermore, the subject case deemed that a military obligor’s individual and personal circumstances making it improbable for the same to cope with the performance of military service may be included under “justifiable cause” as stipulated by the instant penal provision, not just confined to causes (such as illness) that a non-performer of military service duty cannot be held liable. Based on the foregoing interpretation, the subject case, in deeming that forcing a conscientious objector to perform military service that involves participation in military exercise and bearing arms may either excessively restrain the freedom of conscience or undermine the inherent substance of the same, determined that “genuine” conscientious objection may constitute “justifiable cause” under Article 88(1), supra, thereby overruling all precedents that deemed otherwise. Moreover, in the subject case, the Supreme Court stated as follows: (a) genuine conscience refers to a devout, firm, and sincere belief that ought to be proven via indirect facts or circumstantial evidence; (b) a conscientious objector (defendant) is required to present prima facie evidence that one’s conscience is devout, firm, and sincere; and (c) a prosecutor bears the burden of proving the non-existence of genuine conscience by way of impeaching the credibility of the evidence presented. The subject case is significant in that: (i) from a criminal law perspective, it shed a new light on the interpretation of “justifiable cause” under the instant penal provision that had not been discussed in judicial precedents; and (ii) from a constitutional law perspective, it is a ground-breaking ruling that goes beyond the existing concept with respect to the meaning of the freedom of conscience and its inherent substance. That said, the subject case is likely to have a considerable impact within the academic circle and the judiciary. Furthermore, the subject case is historic in that by recognizing conscientious objection in relation to the equity of military service duty, which is one of the most sensitive topics within our society, this has placed emphasis on the need for embracement and tolerance of the minority and recognition of “the freedom to be different” within our community.