양심의 자유로서의 병역거부의 불법성 - 헌법과 형법목적의 관점으로 -

Abstract

As for the basic human right, the freedom of conscience is prescribed in Korean Consittution Article 19 "All citizens shall enjoy freedom of conscience." And this clause is reconized s source of the freedom of mind. And then look into conscientious objection beoonging to the contents of guaranteeing nonperformance -oriented freedom of conscience realization, from the perspective of Korean Constitution. But there are many problems in the application of the freedom of conscientious objection. The inclusion of the freedom of conscience-realization, especially conscientious objection, in the freedom of conscience could collide with other legal benefits and protections and encroach on other's rights. the approval of the freedom of conscience-realization generates constitutional problems on the principle and limit of its restriction. The core of limit and restriction of the freedom of conscience is to find out the possibility of simultaneous realization of law and consciencs harmoniously. In the case that the freedom of conscience is confined inner sphere, it protects the freedom of form, the freedom th decide, the freedom to keep and the freedom to actulize it and it is protected by the freedom of express. However, in the that if case that the freedom of conscience includes the freedom th actualize it, there are many problems. In Korea, military service is not simple moral duty but the constitutional duty(people's obedience to military duty). For the Korean Constitution not to exist as an abstract standard but to act as a vividly living standard in the reality, accurate answers should be provided to the encountered social problems. The right of conscientious objection to military service could not be allowed in current situation in which North and South Korea are standing face to face. It is because having only the freedom of conscience without fulfilling the military obligations that are about defending the nation implies that there remains no more national community but only the indiviual for whom the premise of guarantee of fundamental rights is isolated, but beceause the individual person lives with the community. In point of view of criminal punishment's purpose, it is not certain that punishing person who refused to serve in military bases on one's conscience is not valid. Deterence is the straightforward, commonsense notion if you do something wrong, you will be punished, and punishment itself will prevent you from doing that wrong thing again. According to this notion, fear of a future punishment dictates the actions people choose. In the point of view of special prevention theory, there may be no effect for conscientious objector to military service. The idea of general prevention theory underpins much of commonsense thinking regarding the way to punish. If punishment is applied to all peoples without partiality, rich and poor alike, without distinction of age, without distinction of sex, without distinction of difference in social position, The effect of general prevention theory would be great. The question whether to introduce alternative military service as the assignment to resolve the future problems even if conscience objection is not admitted under the current system, and the trend of legistration will be examined in order to suggest the harmonious direction of conscience objection and military obligation. In the conclusion, in case of Korea in which there is no Constitutional provision stipulating about conscience objection to military service, the relation between the obligation to defend the nation as stipulated in the article 39 of the Constitution with the first principle of the freedom of conscience and Constitution in the article 19 of the Constitution, suggest that conscience objection to military service could not be allowed.