‘양심적 병역거부’에 대한 헌법재판소 결정의 의미와 남은 과제— ‘헌재 2018. 6. 28. 2011헌바379 등’을 중심으로 —

Abstract

Conscientious objection refers to the refusal to fulfill military obligations involving handguns or military training on the grounds of conscientious decisions formed from religious, ethical, moral, philosophical or similar motives. Without giving up the conscience, he cannot fulfill the military duty involving the gun or military training, and refuses to fulfill the military duty because fulfillment of the military duty destroys the value of his or her personal existence. Unlike the previous decision, the Constitutional Court on June 28, 2018 restricts the types of military service to active duty, reserve service, supplementary service, military service preparation and wartime labor, and conscientious objectors based on freedom of conscience under Article 19 of the Constitution. The deadline for amendment was set as December 31, 2019, with the decision not to conform to the Constitution with respect to Article 5, paragraph 1, etc. of the Military Service Act, which does not provide an alternative service system for the public. In the future, Congress should amend the Military Service Law and enact new laws for alternative service. When combining the decision of the Constitutional Court and international human rights standards with respect to the duration and field of alternative service, the service period is 1.5 times longer than the active service period. Social welfare related work, or public welfare related work such as fire fighting, health care, medical care, disaster prevention, and relief are desirable. In conscientious objectors' judgment, conscientious objection will be recognized if they have firm beliefs in the overall context of life, including the applicant's home environment, growth process, school life, and social experience. There is a great concern that many conscientious objectors will be avoided due to conscience before the implementation of alternative service, but the examples of countries that have already provided alternative service are sufficiently preventable. Although conscientious objection is accepted as a basic human right in the international community, the biggest reason for legal punishment until recently in Korea is the influence of nationalism and military culture, the product of division. Many people are concerned about the possibility of alternative military service as a means of avoiding military service, and the strong question of whether religious beliefs and conscience can outweigh national security, and whether the majority of military service due to tolerance of minorities can be ignored. The reason for having it is found in the soil of division. The key to resolving the social conflict caused by conscientious objection to military service is not to make it difficult for non-military people to suffer in the military, but to improve human rights by improving service conditions and English translation so that it is no longer unfair To turn into a friendly army. The decision of the Constitutional Court can be found in the process of moving away from the much emotional and unproductive conception debate in the past and into a productive discussion of the contents and duration of the alternative service system. It is hoped that democracy in society will become an opportunity for further maturity.