Employers are prohibited from dismissing employees who evade military service, as the Constitutional Court ruled that this provision violates the freedom to choose a profession.
On August 27, the court issued a decision on Article 76, Section 1 of the Military Service Act, with five judges voting for a constitutional inconsistency, two for simple unconstitutionality, and two dissenting.
A ruling of constitutional inconsistency acknowledges the unconstitutionality of a law but allows it to remain in effect temporarily to prevent chaos until a legislative amendment is made. Consequently, the court has set a deadline of February 29, 2028, for the National Assembly to revise the law.
Previously, an individual, referred to as A, was prosecuted for violating the Military Service Act but was acquitted on the grounds that refusing active duty based on religious conscience constituted a 'justifiable reason' under Article 88, Section 1 of the Military Service Act. This ruling was upheld by the Supreme Court in 2020.
Following this, the Incheon Military Manpower Administration notified A of additional active duty enlistment and provided guidance on the application process for alternative service. However, A communicated a lack of intent to apply for alternative service and did not enlist as an active duty soldier.
A was subsequently prosecuted again for violating the Military Service Act and was sentenced to 18 months in prison in October 2021, a ruling that was upheld in an appeals court on November 17, 2023. A is currently in the process of appealing to a higher court.
On August 8, 2023, during the second trial, the head of the Incheon Military Manpower Administration sent a letter to the company where A was working as a dispatched employee, stating, "Individuals evading military service cannot be employed, and hiring them may result in penalties under relevant laws. Please inform us if A is still employed." The company subsequently dismissed A on August 11, citing the letter as the reason.
In response, A filed a constitutional complaint on October 11, arguing that Article 76 of the Military Service Act infringes on the freedom to choose a profession.
Article 76, Section 1, Clause 2 of the Military Service Act stipulates that "heads of state agencies, local governments, or employers cannot appoint or hire individuals who evade conscription or summons, and if they are already employed, they must be dismissed."
The court acknowledged the legitimacy of the purpose and appropriateness of the means of the contested provision but determined that it failed to meet the criteria of minimal infringement and balance of interests.
The court stated, "While dismissing individuals evading military service may be necessary to ensure the effectiveness of military obligations and achieve justice in military service, the contested provision does not provide any opportunity for those subject to military obligations to present their case, failing to establish institutional measures to minimize the infringement of fundamental rights."
It further noted, "By not providing procedural protections necessary to safeguard the rights of those subject to military obligations, the provision places the public interest of securing military resources and ensuring equity in military burdens at an undue advantage over individual rights, lacking balance between public and private interests."
The court explained that a simple ruling of unconstitutionality would create a legal vacuum by eliminating the basis for the dismissal system for military evaders, leading to an unjust outcome where all military evaders could not be dismissed without just cause, contrary to the intent of this decision, which highlights the procedural unconstitutionality of the dismissal system.
However, judges Jeong Jeong-mi and Jo Han-chang expressed dissenting opinions, arguing that A's complaint should be dismissed. They contended that the contested provision aims to secure military resources and ensure equity in military burdens, ultimately serving the purpose of 'national security,' thus recognizing the legitimacy of the legislative purpose and appropriateness of the means.
They added, "If military evaders are allowed to present their reasons or circumstances for failing to fulfill their military obligations, and the Military Manpower Administration is given discretionary power to determine whether they fall under the dismissal criteria, it could raise significant questions about the fairness of the dismissal or employment restriction system itself. Therefore, the provision mandating dismissal of those evading conscription or summons can be seen as necessary for ensuring fair and efficient fulfillment of military obligations and enhancing equity in military burdens."
* This article has been translated by AI.
Copyright ⓒ Aju Press All rights reserved.