소수보호의 의미와 ‘양심에 따른 거부’에 대한 관용

In 2018, the Constitutional Court, in the 'Conscientious Objection Case', changed its previous precedent and declared unconstitutional a provision of the Military Service Act that did not provide for alternative service for conscientious objectors. In this historic decision, the Constitutional Court said, “In a democratic decision-making structure based on majority rule, listening to and reflecting the voices of so-called ‘minorities’ who think differently from the majority is the way to realize the true spirit of democracy, which is based on tolerance and pluralism.” This raises the need for a discussion about what “minority protection” means in a liberal democracy and what the principles of state tolerance should look like when a minority that disagrees with the democratic majority asserts a so-called “conscientious objection.” First, in a liberal democracy, the political decision-making of a community is inevitably based on majority rule, but at the same time, in order to justify the pursuit of diversity and the submission of minorities to the community order determined by the majority, the participation and influence of minorities in the decision-making process must be guaranteed, and this guarantee of minority participation is the epitome of minority protection and primary minority protection. When a minority of citizens who disagree with the legal order established through such primary minority protection assert a so-called “right of conscientious objection,” the question of secondary minority protection arises, as the recognition of exceptions to the legal order can only be constitutionally justified under strict requirements, despite the pursuit of diversity in a democratic society. In other words, indiscriminate granting of exceptions would mean the destruction of the legal order and the dissolution of the state and the constitution. The “right of conscientious objection” has a completely different specificity from other liberal rights. That is while liberal rights are unlimited in principle and therefore do not require the subject of the fundamental right to constitutionally justify the exercise of his or her liberal right, the “right of conscientious objection”, which claims an exception to the legitimate order of law, is limited in principle and requires the individual to constitutionally justify his or her request for the state to grant an exception(tolerance). In addition, while the general right to freedom restricts freedom by law, the right of conscientious objection is said to be a ‘fundamental right-forming legal reservation’ rather than a ‘fundamental right-limiting legal reservation’ in that it forms the content of fundamental rights by allowing exceptions (tolerance) by law. Therefore, in light of the specificity of the ‘right of conscientious objection’, a separate test for constitutionality is required other than the principle of proportionality, i.e., a requirement that the granting of an exception(tolerance) to a minority of citizens who claim to reject the general and abstract legal order applicable to all citizens due to personal and subjective internal circumstances can be constitutionally justified. The justification(requirement) for such tolerance can be broadly divided into the ‘subjective requirement’ of the fundamental rights subject and the ‘objective requirement’ that the legal order of the country is within the scope that can be afforded. The ‘subjective requirement’ requires, first, the ‘self- connectedness of the conflict of conscience’, which requires that the act causing the conflict of conscience be attributed to the act of the fundamental rights subject. Second, there is the ‘constitutionality of the content of conscience’, which requires that the content of conscience, no matter how subjective it may be, must conform to the ideology, principles, and values of the Constitution. Third, the ‘urgency of conscience’ must be met, meaning that the person's existential value will be destroyed if he or she does not obey the command of conscience. Only if an individual fulfills all of these subjective requirements will he or she be able to claim the right of conscientious objection. Next, it must be said that ‘conscientious objection’ is permissible only within the standard and scope of the ‘objective requirement’, which is the extent to which the legal order can bear it. The first requirement is that the recognition of a right of conscientious objection inevitably raises issues of equality in that it may discriminate against the democratic majority, and therefore must be ‘compatible with the principle of equality’ in the sense that alternatives must be available to overcome it. Second, it must meet the ‘feasibility of realizing the public interest(national task)’ requirement in the sense that recognizing the right of coscientious objection does not impede the realization of the public interest (national task). Third, the right to conscientious objection is a product of national tolerance, and since it is a tolerance given by the democratic majority to a minority of citizens, ‘the possibility of accepting tolerance in terms of the democratic majority’s legal feelings’ is required. This can be said to be related to how much a country has matured into a tolerant society. Finally, since the above subjective and objective requirements are interrelated and interdependent, it should be said that as the objective requirement of “law and order can afford” diminishes, the subjective requirement is required to be met more strictly, and furthermore, when the law and order can afford is exhausted, no further leniency is allowed regardless of whether the subjective requirement is met.