양심적 병역거부의 인권법적 의의와 실효적 정책 방향성 소고

Abstract

While the Supreme Court and the Constitutional Court had insisted on a negative attitude toward conscientious objection to military service, they altered their opinions about conscientious objection to military service. According to their attitudes, our legal policy on conscientious objectors is required to be fully revised and supplemented. In particular, the decision of the Constitutional Court is important in a sense that it has brought to an end the decades of controversy over conscientious objection to military service, but it has also given rise to complicated and difficult tasks concerning with the legislative measures. In other words, admission or recognition of conscientious objection to military service does not end with its own problems, rather than that, there can be new problems or situation that the value earned from the recognition of conscientious objection to military service may conflict with other values ​​or principles in guaranteed in Constitution. Namely, our military service system is run on the assumption of the conscription system imposed the obligation on all citizens, especially men. Therefore, the exemption of military duty on the particular person is not admitted with ease, due to the fact that the burden of military service is the sacred duty for all people in our society. On the ground of the fact, the evading or exemption of the military service even on the ground of the conscientious objection to military service could not be admitted in Korea. However, our Constitution directly recognizes conscientious objection to military service as a fundamental right of the Constitution, it is reasonable to say that we should focus on the operation of the related systems especially the legislative strategy. By the way, it is much more important to discuss who is the real conscientious objectors based on the freedom of conscience in the Constitution. But because it is difficult to find out or scope the real conscience guaranteed in the level of the Constitution, we are bound to face the problems in operating the concerned systems. More than any thing else, it is necessary to take into account that most of the conscientious objectors bear religious reasons based on the Bible, but it is true that the interpretation of the Bible may vary according to personal beliefs and experience. In the long run, we are obliged to admit that as conscientious objection is recognized by the Constitutional Court and the Court, the core of discussion seems to be a discussion of the premises for the successful operation of the relevant system, of course that system is the alternative service system. When it comes to the successful operation of the system, most important issue is how to sort out those who try to avoid military service in the excuse of conscience. Therefore, we need to make up the careful and sophisticated system designed for that purpose. In other words, in order to secure the success of the system, we are required to discuss more substantially. To make long story short, it is necessary to consider the technical discussion such as the setting of the time period and the strength of the substitute service in order to select the real conscientious objectors precisely. Especially for this purpose, it is very significant that how we are able to eliminate incentives for alternative service applications throughout the legislative strategy such as the time period and the strength of the substitute service.