형법상 정당한 사유로서 양심에 근거한 병역거부와 대체복무제도의 방향

Abstract

Conscientious objection is to object participating in military service for religious belief or conscience. Military Service Act Article 88 Clause 1 prescribes any one who refuses to military service without legitimate reason will be punished to imprisonment under 3 years. The Constitutional Court decided this statute constitutional, arguing that the conscientious objection does not belong to the legitimate reason. Therefore, conscientious objectors have been punished without exception. But it is necessary to consider whether it is appropriate to punish conscientious objectors as criminals because they will not kill or harm people according to their religious convictions or conscience. Article 88 (1) of the Military Service Act violates the principle of excessive prohibition such as appropriateness of means, minimum of infringement, and balance of legal interests, because conscientious objectors are punished only with imprisonment for less than three years without recognizing other alternative means. Also, it is an unconstitutional law that violates the freedom of conscience and the freedom of religion because it imposes an act against conscience through criminal punishment. Just as International human rights norms and the European Union Fundamental Rights Charter recognized conscientious objection as right, the perceptions and circumstances of the international community have changed. Through legislation, conscientious objection must be recognized as a legitimate reason. The question is where to place the legitimate reason of conscientious objection in Criminal law. It would be appropriate to place the conscientious objection to illegality than liability in terms of clarity and predictability of law. As a specific method, the conscientious objection will be defined as a legitimate reason of Article 88(1). In relation to the introduction of the alternative service system, it is important to set the length of service and intensity of work in consideration of the equality of military service personnel. And it is necessary to establish a fair screening procedure for the alternative service applicant. National consensus on concrete contents of alternative service is needed in consideration of social needs and public interests.