The Constitutional Court has ruled that a clause in the Military Service Act requiring employers to fire employees once they learn the employees are draft dodgers violates the Constitution. The National Assembly must amend the Military Service Act by Feb. 2028 to give draft dodgers a chance to explain themselves.
On the 27th, the court delivered this decision in a constitutional complaint filed by A, a conscientious objector. Of the nine justices, five (Kim Sang-hwan, Kim Hyeong-du, Jeong Hyeong-sik, Jeong Gye-seon, Oh Young-jun) found the provision incompatible with the Constitution, two (Kim Bok-hyung, Ma Eun-hyeok) said it was outright unconstitutional, and two (Jeong Jeong-mi, Cho Han-chang) upheld its constitutionality.
Article 76(1) of the Military Service Act states, "Heads of state agencies, heads of local governments, or employers may not appoint or hire as public officials or executives and employees any person who falls under any of the following subparagraphs, and those already in service shall be dismissed."
Those who cannot be hired include: ▲ persons evading a conscription physical examination, a reexamination, or a confirmation physical examination ▲ persons evading draft or mobilization ▲ persons who have deserted from military service, social service, or alternative service, among others.
A was indicted in 2015 on charges of violating the Military Service Act. A later won a final acquittal on the grounds that refusing active duty enlistment based on religious conscience falls under "justifiable reason" in Article 88(1) of the Military Service Act.
Earlier, in 2018 the Constitutional Court held that the Military Service Act provision punishing conscientious objectors was constitutional, but ruled that Article 5 of the Military Service Act, which did not define alternative service as a type of service, was not in conformity with the Constitution. Accordingly, the Supreme Court en banc has since ruled that conscientious objection cannot be punished as a violation of the Military Service Act. The government implemented an alternative service system starting in Oct. 2020.
Afterward, the Incheon Regional Military Manpower Administration guided A through the application process to be assigned to alternative service. However, A said A would not perform alternative service either. A was indicted again for violating the Military Service Act, and in Oct. 2021 received a first-instance sentence of one year and six months in prison. The case is now pending before the Supreme Court.
In this situation, A worked at a private corporations starting in May 2023. In Aug. of the same year, the head of the Incheon Regional Military Manpower Administration sent the company an official letter stating, "Hiring a person evading military service may be punishable," after which A was fired. A then filed a constitutional complaint, arguing that Article 76(1) of the Military Service Act infringed on the freedom to choose an occupation, among other rights.
The court said, "To minimize infringement of basic rights, dismissal should be carried out only for those who have evaded military service without justifiable reason," adding, "Evasion of military service is not simply failing to enlist; it must also be recognized that there is no justifiable reason."
It added, "The provision at issue does not establish institutional safeguards to minimize infringement of basic rights, such as giving the person subject to military duty any opportunity to explain." The court ordered that the relevant part be revised by Feb. 2028.
Justices Kim Bok-hyung and Ma Eun-hyeok, who offered the outright unconstitutionality opinion, said, "The Military Service Act imposes criminal penalties on draft dodgers and provides various measures such as disclosure of personal information and restrictions on permission for overseas travel," adding, "A blanket ban on all employment is excessively harsh beyond what is necessary to achieve the legislative purpose."
By contrast, Justices Jeong Jeong-mi and Cho Han-chang said, "The possibility is very low that a person would be dismissed from a workplace even though there is a justifiable reason for failing to fulfill military duty," and opined that "the provision uniformly requiring dismissal of draft evaders is unavoidable to enhance fairness in the burden of military duty."