Constitutional Court Rules Blanket Dismissal of Conscientious Objectors Unconstitutional

The Constitutional Court has ruled that the current Military Service Act provision requiring employers to dismiss conscientious objectors en masse without examining whether legitimate grounds exist is unconstitutional.

The court issued the ruling today (the 27th) in a constitutional complaint filed by a conscientious objector, identified as A, seeking to confirm the unconstitutionality of Article 76, Paragraph 1 of the Military Service Act.

Consequently, the National Assembly must revise the provision by February 29, 2028.

Among the nine justices, five (Kim Sang-hwan, Kim Hyung-du, Jung Hyung-sik, Jung Gye-sun, and Oh Young-jun) delivered a non-conformity opinion, two (Kim Bok-hyung and Ma Eun-hyuk) issued simple unconstitutionality opinions, and two (Jung Jung-mi and Cho Han-chang) favored a constitutional opinion.

A non-conformity ruling acknowledges the unconstitutionality of a law while allowing it to remain temporarily in effect to ensure legal stability.

A was indicted in 2015 for refusing military service, but was finally acquitted in 2020 on the grounds that refusing active-duty enlistment based on religious conscience constitutes a "legitimate reason."

Subsequently, the Incheon Regional Military Manpower Administration filed a re-complaint on charges of violating the Military Service Act, and the second-instance trial is currently underway.

During this process, A was also dismissed from the company where they were employed.

A's legal representation claimed that the Incheon Regional Military Manpower Administration contacted them, stating that A would face criminal charges if not dismissed based on Article 76 of the Military Service Act.

Article 76, Paragraph 1, Item 2 of the Military Service Act stipulates that state agencies, heads of local governments, or employers cannot employ persons evading conscription or mobilization as public officials or executives, and must dismiss them if they are currently holding office.

A filed a constitutional complaint arguing that this current legal provision infringes upon the freedom of choice of occupation.

The Constitutional Court stated, "The dismissal of draft evaders itself is inevitable to secure the effectiveness of fulfilling military service obligations and to realize justice in military service," while adding, "Dismissals should be carried out only against those who evaded military service without legitimate grounds."

Under the Military Service Act, "military service evasion" is established not merely by the fact that someone failed to enlist within the statutory period, but requires the absence of legitimate reasons to be recognized.

Regarding whether legitimate reasons exist, the Constitutional Court explained, "This is not a matter that can be easily determined solely through the unilateral judgment of the Military Manpower Administration," and added, "To make a dismissal notification after determining whether someone is evading military service, an opportunity must be provided to submit materials and explain the existence of legitimate reasons."

Pointing out the unconstitutionality of the procedural aspects under the current Military Service Act, the court concluded that the relevant section must be revised by February 2028.

Justices Kim Bok-hyung and Ma Eun-hyuk, who delivered simple unconstitutionality opinions, stated, "The Military Service Act prescribes criminal punishment for military service evaders, the dismissal targets of the problematic provision are overly broad, and it leaves no room to consider the personal circumstances of the evaders," viewing the dismissal system itself as an infringement on the freedom of choice of occupation.

On the other hand, Justices Jung Jung-mi and Cho Han-chang expressed a dissenting opinion, stating, "The possibility of being dismissed despite having legitimate grounds for failing to fulfill military service obligations is extremely low, and allowing the Military Manpower Administration to exercise discretion in determining dismissal targets by considering personal circumstances could raise significant questions about the fairness of the dismissal system."

(Photo: Yonhap News)
※ Please note: This article was translated by AI and may contain errors.