‘양심의 자유’에 관한 헌법재판소 결정의 비판론적 검토

This article aims at the critical examination on the decisions of the Korean Constitutional Court with respect to the inconsistent interpretation of the application of the freedom of conscience. The freedom of conscience has necessarily political traits, for the freedom of conscience occurs on the conflicting point between the majority conscience and that of minority. Hence, it would be better off considering the freedom of conscience as being political and the irregular interpretation may derive from that political traits. Nonetheless, the function of the constitutional review is to protect the constitution, drawing the political reality and life into the inner boundary and orbit of the constitutional norms so that the constitutional fulfills the purpose of the soothing the harshness of political reality and the constitutional norms (Verwirklichung der Verfassung). If the constitutional decisions brings about the inconsistency, the people will not rely on the constitutional court’s decisions, which will cause the negative impact on the norm-forming or normalization of the political daily life (Normatisierung des politischen Lebens). Especially, the most contradictory and inconsistent aspects of freedom of conscience fall on the conscientious objection of military service. The inconsistency of the interpretation of the freedom of conscience mainly can be noticed on the conscientious objection cases. Therefore, it is proper time to re-examine of the freedom of conscience with the new perspectives.