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Trends in court’s dicisions on religious freedom in the United States and South Korea

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2023, 11(3), pp.93-138
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : July 6, 2023
  • Accepted : August 25, 2023
  • Published : August 31, 2023

Jonghaeng Yoon 1

1충남대학교

Accredited

ABSTRACT

When looking at South Korean case law on the freedom of religion, there have been many legal disputes regarding students' religious freedom in public schools, refusal of blood transfusions for religious reasons, conscientious objection to military service based on religious beliefs, and refugee applications based on religious persecution. The Supreme Court has used the proportionality test or the least restrictive means rule as a solution to the conflict between the freedom of religious education and operation of public schools. However, in the case of private universities, the Supreme Court's judgment, which emphasizes the freedom and autonomy of Christian universities, is more appropriate, as the applicants were aware of the published university policy and made a free choice to enroll. More than anything else, the current system of compulsory high school assignment by lottery should be supplemented so that the freedom of religious choice of students and the freedom of religious education in private schools can be guaranteed together. In several cases of refusal of blood transfusions on religious grounds, the Supreme Court has held that if a physician has fulfilled his or her duty of explanation and duty of care, he or she should consider the duty to respect the patient's right to self-determination as being of equal value to the protection of the patient's life. It is dangerous to extend the Supreme Court's position to the position of patients and their families, who lack medical experience and knowledge, have very limited information to make judgments and decisions, and are in a state of psychological anxiety. From a physician's point of view, it would be appropriate to prioritize the duty to protect the patient's life and consider the patient's right to self-determination as a secondary consideration. In addition, in a case where a victim of a traffic accident refused a blood transfusion for religious reasons and ultimately died, the Supreme Court's decision to deny a causal link between the traffic accident and the patient's death was reasonable in that the victim's chances of survival were not high even if he had received a blood transfusion due to serious injuries caused by the traffic accident, and it could not be concluded that the refusal was the sole or decisive cause of his death. In determining the extent to which the refusal of a blood transfusion for religious reasons contributed to the patient's death, caution should be exercised in exempting an insurance company from its obligation to pay benefits for a traffic accident. The Supreme Court has held that conscientious objection to military service constitutes a legitimate reason based on the constitutional right to freedom of conscience as well as the spirit of tolerance and tolerance for minorities. And in making a judgment on whether the reason for refusing military service is based on true conscience, the defendant must present evidence that it is based on true conscience, and the prosecutor must impeach it to make a strict judgment on its legitimacy. However, now that a reasonable alternative service system has been established, it would be desirable to guarantee freedom of conscience more broadly, not only in cases of religious convictions, but also in cases of purely moral convictions that are not based on political or social reasons, in order to determine whether the convictions are "deep, firm, and true." There have also been a number of cases where refugee claims on the grounds of religious persecution have been upheld, such as where the applicant has a well-founded fear of being persecuted for being a Christian convert upon returning to their country of origin, or where the applicant has a well-founded fear of being subjected to forced female circumcision on account of their membership of a particular societal group for traditional, cultural or religious reasons. However, where the applicant did not appear to be an active practitioner of the Christian religion and it was not likely that she would be persecuted for her conversion to Christianity if she returned to her country of origin, she would not be considered a refugee. One hopes that the situation of many people suffering in countries where freedom of religion is restricted by religious and cultural traditions and fundamental rights of individuals are violated will soon improve.

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