양심적 병역거부자에 대한 형사처벌의 타당성 여부

Under the current law, there is no alternative service available for a person who refuses the military service obligation on the reason of religious belief or conviction of conscience. Since these young men who want to be faithful to their conscience and belief kept being punished for the evasion of military service, many criminals are produced and there is a criticism that their constitutional right on freedom of conscience is being neglected. The Supreme Court has consistently ruled that the “decision by conscience”, such as refusing military service defined in the law on the pretense of religious doctrine, does not belong to the freedom of conscience as warranted by Constitution. The refusal of holding a rifle on the reason of religious belief or conscientious conviction is called as “conscientious military service refusal” and there is a requirement to re-establish the relation with the constitutional duty to serve in military and the conscientious military service refusal. Within such context, this study will approach the subject from skeptical perspective and find out whether the criminal punishment of a person who refuses the military service on the reason of religious belief or conscientious conviction is valid or not within the military service reality of Korea. First, the concept of conscientious refusal of military service and related situation in Korea will be identified. Second, the legislation examples and international treaties related to the conscientious refusal of military service will be explored. Third, the content of revision on the Military Service Law as suggested by the legislature and the recommendation from National Human Rights Commission will be analyzed. Based on above learning on the situation, a critical review will be done on whether punishing a person who refused to serve in military based on one’s conscience is valid or not to close the discussion.