양심의 자유의 과잉금지원칙 적용여부

The principle of proportionality is to claim 'a state action that is appropriate for the statutory goal, and its most important function is to realize 'justice in individual legal cases' via concretely discerning the correct balance between the restriction imposed by a corrective measure and the severity of the nature of the prohibited act. In this regard, the principle raises both questions: 'Whether or not 'all' the basic human rights could be the subject of restriction in the sense of paragraph 2 of article 37 of the constitutional law?' and 'Whether or not general legal reservations and the principle of proportionality could be applied to basic human rights?' Since the above article prescribes "it is possible to restrict basic human rights if necessary", the subjects of restriction seem to be only the rights of freedom of which restriction must be undergone three-step reviews, such as the scope of protection of basic human rights, the restriction of the scope of protection of basic human rights, and the constitutional justification of restriction of basic human rights. Therefore, the paragraph 2 of article 37 of the constitutional law could be applied to the rights of freedom in principle. On the other hand, the conscientious objection to the military service seems to be 'the freedom of omission-based realization of conscience.' However, to guarantee the freedom of conscience does not mean to give individuals the right to the rejection of obedience to law and order on the grounds of conscience. According to this logic, to measure the freedom of conscience in comparison with public interests through the principle of proportionality and relativize it in order to realize public interests are not compatible with the nature and characteristic of the freedom of conscience. If the decision of conscience is narrowed to satisfy public interests in the course of comparatively measuring the benefit and protection of the law or its contents are distorted or perverted, it is no longer 'conscience.' When conscience and law & order are in collision, the principle of proportionality, due to its characteristic, must choose one of the two, namely fully accepting one and completely rejecting the other. And therefore the principle is not compatible with the value system of the constitutional law. In this regard, it is necessary to invent the method of review that allows the benefit and protection of both laws in collision to be harmoniously realized on the premise that both of them are constitutionally protected. Since there are special issues in the comparative measurement of the benefit and protection of the law, the principle of proportionality could not be applied to the guarantee of the freedom of realization of conscience. Furthermore, the colliding legal benefit and protection against the conscientious objection to the military service have not only the simple meaning of public interest, namely national security, but also the characteristic of constitutional duty, namely people's fulfillment of military duty. In this vein, if the freedom of conscientious action is restricted in order to simply maintain the public interest of national security, the principle of proportionality must be applied to it in order to guarantee basic human rights maximally. However, if the freedom of conscientious action is restricted according to the need of people's fulfillment of military service, it is the issue of collision between the constitutional right and the constitutional duty and therefore its criteria of judgment must be different. In other words, the freedom of conscientious action must be judged not by the principle of proportionality prescribed in the paragraph 2 of article 37 of the constitutional law but by the comparative measurement of the constitutional right and the constitutional duty.