헌법상 양심의 자유에 기초한 병역거부자에 대한 입법론적 고찰 -사회복무제로의 변화를 통한 입법대안을 중심으로-


Study on Legislation about Conscientious objector on the basis of Constitution


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A conscientious objector is an individual who has claimed the right to refuse to perform military service on the grounds of freedom of thought, conscience, or religion. In some countries, conscientious objectors are assigned to an alternative civilian service as a substitute for conscription or military service. Some conscientious objectors consider themselves pacifist, non-resistant, or antimilitarist. The reasons for refusing to perform military service are varied. Many conscientious objectors cite religious reasons. The records of conscientious objectors to military service are kept by a Korean investigative body as criminal files for five years. As a consequence, conscientious objectors are not allowed to enter a government office and apply for any type of national certification exam, it is also very unlikely that they will be employed by any company that inquires about criminal records. The Korean Military Service Act, therefore, clearly infringes on constitutional rights a direct violation of such international standards that honor the right of people to conscientiously object to mandatory military service. At these days the Supreme Court convicted the Conscientious Objector who has been be punished due to his refusal to serve in the army on the ground of the religious faith and The Constitution Court decided that the article of the military service law which punishes the Conscientious Objector is constitutional. So the problem of Conscientious Objector is still remained unsettled. Since the establishment of the Republic of Korea, thousands of conscientious objectors had no choice but to be imprisoned as criminals. Every year about 500-800 young men, are arrested for refusing the draft. In September 2007 the South Korea government announced a program to give conscientious objectors an opportunity to participate in alternative civilian service. The program stipulates three years of civilian service that is not connected with the military in any way. Changes in legislation will first be needed to implement the program. As of May 2010, no such changes have been implemented. In 21 new century, in order to be a genuine just democratic human right developed country, we should begin to be concerned about advanced national practices and to be familar with international human rights law.


Ⅰ. 서
 Ⅱ. 현황과 인정여부에 관한 논의
 Ⅲ. 각국의 양심적 병역거부자에 대한 태도
 Ⅳ. 사회복무제의 도입을 통한 입법정책적 해결방안
 Ⅴ. 결론


  • 강현철 Kang, Hyun-Cheol. 한국법제연구원 연구위원, 법학박사


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