Supreme Court Full Bench Decision on Conscientious Objection


This is a summarised version of the Supreme Court Decision. Here you can see the full version

2004Do2965 Delivered on July 15, 2004*

Violation of the Military Service Act

Main Issues

[1] The meaning of a "justifiable cause" under Article 88(1) of the Military Service Act, a punishment provision for evasion of enlistment
[2] The scope of protection and the nature of the freedom of conscience under Article 19 of the Constitution
[3] Whether the freedom of conscience under Article 19 of the Constitution is a relative one which can be restricted by law pursuant to Article 37(2) of the Constitution (affirmative)
[4] Whether the freedom of conscience of a conscientious objector outweighs the constitutional duty of national defense (negative)
[5] Whether Article 88(1) of the Military Service Act, which does not provide a special rule creating an alternative military service system for a conscientious or religious objectors, violates the principle prohibiting excessiveness (negative)
[6] Whether a lawful act opposing one's own decision, based on conscience, can be expected from a conscientious objector (affirmative)

Summary of Decision

[1] The "justifiable cause" of Article 88(1) of the Military Service Act, a punishment provision for those evading enlistment, is in principle premised on the existence of an abstract military duty and affirmation of performance thereof, but shall be limited to conditions which could justify nonperformance of military duty materialized by the decision of the Commissioner of the Military Manpower Administration etc, such as diseases which cannot be attributed to actions of the non performer. On the other hand, in case where the right upon which a non performer based his decision to evade enlistment is guaranteed by the Constitution and furthermore that right is acknowledged to have a superior constitutional value surpassing the legislative purpose of the above article, if a punishment is imposed under Article 88(1) of the Military Service Act, then it will unduly infringe upon his constitutional right and to avoid such a result, it should be viewed that the non performer has a justifiable cause to refuse enlistment, exceptionally, in order to avoid the aforesaid unconstitutional situation.
[2] The conscience that the Constitution intends to protect is "an acute and concrete conscience that is the powerful and earnest voice of one's heart, the failure to realize which in action upon judging right and wrong of a matter would destroy one's existential value as a person" The freedom of conscience consists of not only the internal realm of formation and decision of one's conscience, but also the external realm of expressing and realizing one's decision of conscience by means of passive nonperformance, that is to say, a freedom of not being forced to act against one's decision of conscience. Accordingly, the freedom of conscience has the nature of a passive defensive right, in principal, requesting the state not to exert unjust legal compulsion effecting the process of formation and realization of individual conscience.
[3] Since the exercise of basic rights, including the freedom of conscience has the general limitation in so far as constitutional basic rights should be exercised within the extent that they enable a communal life with others, within a state community, and should be realized within the limit of not endangering other constitutional values and the legal order of the state, the realization of the freedom of conscience is ultimately a relative freedom which can be limited by law under Article 37(2) of the Constitution if constitutional benefits exist which justify the restriction.
[4] Article 88(1) of the Military Service Act is contrived to materialize the citizen's duty of national defense. Since it is obvious that military duty is not fulfilled and national security is not ensured, the dignity and value of citizens, as human beings, would not be guaranteed, military duty is ultimately for guaranteeing the dignity and value of the whole citizens as human beings. Because the freedom of a conscientious objector does not outweigh the above benefit of the Constitution in its value, the limitation of the freedom of conscience of the defendant, in favor of the above legal benefit, under Article 37(2) of the Constitution is constitutionally justified.
[5] Legislators have extensive discretion whether punishment shall be imposed on objectors or alternate military service shall be allowed in order to secure military duty compliance. Although a Military Service Act provision stipulates an exemption from military duty for those who cannot serve because of diseases or mental handicaps as well as provides a special military service system by allowing those qualified to serve as personnel for public interests service, personnel for special research personnel, personnel for industrial technique etc., and although it stipulates only punishment without any special treatment by a system of alternative military service for objectors who refuse active duty military service based on conscientious and religion, it cannot be viewed that the principle prohibiting excessiveness, the proportionality principle, or the principle of non-discrimination based on religion are breached.
[6] In order to decide whether the defendant can be expected to act contrary to his decision based on his conscience, a socially average person, instead of the actor in the concrete situation, at the time of such an act should be postulated and a decision should be made on the possibility of expecting the lawful act from the perspective of the average person. Although it seems that the conscientious objector's decision may discourage him from forming motives that may lead to lawful conduct, proceeding to a lawful conduct is not at all impossible. The legal norms require, in principle, an individual to abstain from acting according to one's conscience in exceptional case where the realization of conscience is opposed to law that complies with the Constitution.

Dissenting Opinion by Justice Lee Kang-kook

Granted we cannot say that the binding power of the punishment provisions of the Military Service Act does not reach the defendant if a penalty, the states most powerful measure to sanction, is imposed on the defendant who is a conscientious objector. The dignity of the defendant as a human being would be severely violated and it would result in an excessive measure that breaks from the balanced proportionate relationship with the offender's responsibility as the main ground for an imposition of punishment. It is also evident that the punishment for the defendant, without regard to degree, cannot meet, from any perspectives, the original goal of punishment such as retribution, prevention of crime, and reformation of the defendant, etc. Especially, the defendant, who followed the unconditional imperative of religious conscience, under pressure of the conflict between the duty to bear arms reflecting a general value system and the imperative of religious conscience, is hardly expected to lawfully act in conformity with the positive law of the Military Service Act. Since in the case of the defendant, an individual's freedom of conscience should be protected and respected prior to the state's right of punishment, the element of responsibility, among the elements of a crime, cannot be acknowledged and in this respect the defendant has a "justifiable cause," excluding the application of Article 88(1) of the Military Service Act.

Supplementary Opinion to the Majority Opinion by Justices You Ji-dam, Yoon Jae-sik, Bae Ki-won, Kim Yong-dam

While the introduction of the alternative military service system is desirable from the perspective of legislative policy, it can hardly be deemed as constitutional duty. As the Majority Opinion above has pointed out, legal formation on the duty of national defense, as a citizen's basic duty, is in purpose directly connected to national security and is an area which needs to be oriented purposefully toward forming the national armed forces with the best defense capacity reflecting national and international security circumstances, and for this reason comprehensive legislative power is granted to legislators. The Military Service Act cannot be regarded as unconstitutional, as a result of impairing the freedom of conscience and religion and violating the principle of equality, only because it imposes the duty of military service, in its concrete form, without providing any alternatives that can contribute to lessening conflicts of conscience arising from religious reasons etc. to part of citizens confronted with such conflicts. Also, the interpretation that there exist "justifiable causes" excluding the application of Article 88(1) of the Military Service Act on the premise that the state did not accomplish the constitutional duty to coordinate the freedom of conscience and military duty cannot be accepted. For this reason, the application of Article 88(1) of the Military Service Act to the defendant is unavoidable.

Supplementary Opinion to the Majority Opinion by Justice Cho Moo-jeh

Granted that the military duty to bear arms, among other military duty acts, contradicts faith according to the defendant's religious conscience, the act of enlistment performed by the defendant, as a concrete obligatory act, is in fact a stage before military arms drill training (the refusal of which is regulated not by the Military Service Act but by the Military Criminal Law) which instructs on how to kill people and inflict pain upon people, and the enlistment itself is neither military arms drill training, nor any similar act. Therefore, enlistment should not be definitely concluded as being unexpected since it is contradictory to the faith of the defendant's religious conscience.

Reference Provisions

[1] Article 88(1) of the Military Service Act / [2] Article 19 of the Constitution / [3] Article 19, 37(2) of the Constitution / [4] Article 88(1) of the Military Service Act, Article 37(2) and 39(1) of the Constitution / [5] Article 88(1) of the Military Service Act, Article 37(2) the Constitution / [6] Article 19 of the Constitution, Article 88(1) of the Military Service Act

Reference Cases

[1] Supreme Court Decision 67Do677 delivered on June 13, 1967 (Zip15-2, Hyung018), Supreme Court Decision 88Do2285 delivered on Feb. 27, 1990(Gong1990, 830), Supreme Court Decision 2003Do5365 delivered on Dec. 26, 2003 / [2] Constitutional Court Full Panel Decision 96Hunga11 delivered on March 27, 1997 (HunGong21, 314), Constitutional Court Full Panel Decision 96Hunba35 delivered on July 16, 1998(Hungong29, 634) / [3] Supreme Court Decision 82Do1219 delivered on July 13, 1982(Gong1982, 772)


*The original document, provided by the Korean Supreme Court, of this summarized decision is available at…

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