양심적 병역거부에 대한 헌법재판소의 비범죄화 결정과 적절한 대체복무법제의 설계

Abstract

In Korea where national drift system has been implemented and its Constitution acknowledges a citizen’s duty to national security, objection to enlistment has been punished under conscription evasion (article 88 paragraph 1 under Conscription Act), and objection to the bearing of arms under disobedience (article 44 under Military Criminal Code) by the judicial body. The Constitutional Court had ratified such position of punishing so called conscientious objection. Meanwhile, the decision of the Constitutional Court in 2018 that article 5 under Conscription Act classifying military service without a category of alternative service for conscientious objectors is against freedom of religion and freedom of conscience secured under Korean Constitution has thrown the assignment of making proper alternative service system to the legislative body. The legislative body should play the role of harmonizing two conflicting demands between the equality of the intensity of active duty and decriminalisation of the objection. This research examines alternative service systems of three representative countries such as Germany, Taiwan and Greece with focus on service types, period, screening process, and practices. The study suggests that Greece-type alternative systemm can fulfill the role and be loyal to the original cause for making alternative service to active military service. Military-service evaders with the disguise of conscientious objection, in addition, should be punished with severity under carefully-designed articles under new law.