'양심적 병역거부'의 현황과 법리

Abstract

This paper deals with the problem of conscientious objection to military service.

Chapter 1 gives an overview of conscription system of Korea. Conscription is enshrined in

Article 39 of the Constitution and is further regulated by Military Service Act.

Chapter 2 gives an overview of conscientious objectors in Korea. Annually around 700

COs are being sentenced and imprisoned for one and a half years, according to Article 88,

Para. 1, Item 1 of the Military Service Act.

Chapter 3 analyzes major decisions of the courts, including that of the Constitutional

Court. The Constitutional Court stated that the concerned article does not violate the

freedom of conscience which is protected under the Korean Constitution. While

upholding the constitutionality of the contested provisions, the majority directed the

legislation to study means by which the conflict between freedom of conscience and the

public interest of national security could be eased. The dissent found the relevant

provisions of the Military Service Act unconstitutional, in the absence of legislative efforts

to properly accommodate conscientious objection.

Chapter 4 reviews numerous recommendations, resolutions and reviews of UN Human

Right Council and Human Rights Committee. Korea, being a state party to the

International Covenant on Civil and Political Rights, has an obligation to abide by the

Covenant. Furthermore Korea, becoming a party to the Optional Protocol, has

recognized the competence of the Committee to view Individual Communication. The United Nations, the Council of Europe and the European Parliament have all stressed on

numerous occasions that the right to conscientious objection is a fundamental aspect of

the freedom of thought, conscience and religion, as laid down in Article 18 of the

Universal Declaration of Human Rights and Article 18 of the International Covenant on

Civil and Political Rights.

Chapter 5 is a thematic global survey on 20 countries which recognize legally the right

to conscientious objection and keep an alternative service system. Most of them are

European countries.

Chapter 6 reviews arguments against adopting an alternative service system for COs.

They argues that the alternative service system is harmful to national defense, and is

against the equality principle of military service duty and responsibility. But this paper

argues that it is in principle possible, and in practice common, to conceive alternatives to

compulsory military service that do not erode the basis of the principle of universal

conscription but render equivalent social good and make equivalent demands on the

individual, as the UN Human Rights Committee concludes.