양심의 자유에 의한 병역거부에 관한 연구

In terms of coming to be emerged in earnest the opinion of judging that the punishment for conscientious objection possibly violates the constitution pertinent to the Freedom of Conscience,' which is prescribed in the constitutional law, for the first time in 2002, the unconstitutional legal judgment concerning Article 5, Paragraph 1 of the Military Service Act was recommended to the Constitutional Court. The lower instance handed down a ruling of innocence as to a conscientious objector. But the relevant judgment was reversed by the Supreme Court in 2007. In June of 2018 following it, the Constitutional Court pronounced the decision 'incompatible with the constitution' regarding Article 5, Paragraph 1 of the Military Service Act, which provided a type of military service. Thus, the related clause, which does not include alternative service, was judged to make inroads on the Freedom of Conscience. According to this, the National Assembly was requested to enact the law until December 31, 2019. The related clause, which has unconstitutional element, was allowed to lose its legal force from January 1, 2020. Hence, a discussion relevant to the introduction of alternative service is being progressed in many ways. Therefore, an object for consideration is containing a concept of conscience, which is the yardstick for judgment pertinent to a conscientious objector, and even the conscience not only on a religious man but also on a non-religious man. The Freedom of Conscience may be divided into the internal area of forming conscience and the external area of realizing the formed conscience. Its specific guarantee is sorted into “freedom of conscience,” which is the inward freedom, and “freedom of realizing conscience,” which outwardly expresses and actualizes the conscience decision. The legal ground concerning the right to conscientious objection is “freedom of conscience” in Article 19 of the constitutional law. An important issue comes to involve whether this freedom of conscience is the absolute freedom, which has an ascendancy over the public interest called national security, or the relative freedom, which may be restricted for the public interest. In regard to a judgment of an acquittal, the Supreme Court acquitted a military service law offender in November of 2018 with the position as saying of being unable to penalize a conscientious objector, with judging that imposing just penalty without arranging alternative service breaches the principle of excess prohibition(Article 37, Paragraph 2 of the Constitution).