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Study of Criminal Law on the Conscientious Objection

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2018, 6(4), pp.215-233
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Lim Jonghui 1

1동신대학교

Candidate

ABSTRACT

Conscientious objectors to the military service, to hold on their personal identity following the religious doctrine they believe, have continued insisting that their acts conform to the valid reason under the positive law, and giving them criminal punishment with no possibility of expectation to lawful acts infringes on the freedom of conscience guaranteed by the Constitution. As to this aspect, the Constitutional Court adjudicates the constitutional discordance on the Military Service Law (MSL) because it does not have any code of alternative service in Art. 5, Para. 1, which violates the freedom of conscience, even though Art. 88, Para. 1, as a current rule of criminal penalties against conscientious objectors, is constitutional. This decision of the Constitutional Court, the strongest agency of authoritative interpretation of the positive law, assigns the legal task of establishing the theory of criminal law, accompanied by some legislative improvements, which is supposed to be a theoretical foundation that imposes the national duty of military service while ensuring the freedom of conscience. This paper, as to this issue, provides the following ideas: First, the conscientious objection to military service should be regarded as ‘the valid reason that can deny the crimes of the MSL and the Reserve Forces Act (RFA)’. Second, the conscientious objection to military service should rightly be interpreted to correspond to the supralegal justification because the performers are not expected to do the legal act according to the theory of actor. Third, legalizing the regulations admitting the alternative duties is essential in the MSL and the RFA to make it constitutional for conscientious objectors to perform other services except military service to do their duties as members of the nation. Fourth, establishing the new system of alternative service wants an organization or a decision committee for alternative service where citizens and experts work together so as to provide fairness compared to service members and avoid the evasion of military service. Fifth, lawmakers should enact the rule that has an irregular period of service, meaning just short and long term according to the patterns of work such as the intensity and difficulty, etc. rather than 1.5 or 2 times more than the regular time treated while discussing a proposition of law Lastly, the alternative services, which are relatively admissible regarding the regular ones, should come to the fields related to maintaining social order and requiring the spirit of service and sacrifice, i.e. disaster response and international relief.

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