Decision to Request for Adjudication on Constitutionality of Law

Ulsan District Court

Decision to Request for Adjudication on Constitutionality of Law

Case 2007-Gojung-202 Violation of Establishment of Homeland Reserve Forces Act

Defendant Shin Dong-heok (83xxxx-xxxxxxx), a temporary laborer

Address : #101 / 412 Wonjin Apt., 443-21, Soju-ri, Ungsang-eup, Yangsan-si

Registered address : 201 Soengdong-ri, Yeongjung-myeon, Pocheon-si

Main Text

Concerning the case above, the court decides to request for adjudication on Constitutionality of the part of article 15, Item 8 of Establishment of Homeland Reserve Forces Act, which states that ‘When under the notice of the conscription to military forces training in accordance of Article 6, Item 1, one fails to appear on the designated date or is absent without reasonable causes, he will be imprisoned for less than one year or penalized with a detention or a fine of less than two million won.’

Reason

As noted in the main text above, the constitutionality of Article 15, Item 8 that stipulates that, when under the notice of the conscription to military forces training in accordance of Article 6, Item 1, one fails to appear on the designated date or is absent without reasonable causes, he will be imprisoned for less than one year or penalized with a detention or a fine of less than two million won, is the basis for the trial of this case. Furthermore, there are sound reasons to admit that it is unconstitutional, leading to the request of adjudication of the Constitutionality of this article.

April 18, 2007

Judge Seung-yong, Song

1. Articles whose interpretations are unconstitutional

-Article 15, Item 8 of Establishment of Homeland Reserve Forces Act

: When one fails to receive the training in accordance with article 6, Item 1 without reasonable causes, complies with the conscription or appears for the summon in place of another one who was originally notified, defies or refuse to obey the authoritative order of the commanding officer in accordance with Article 2, fails to register in accordance with article 10 of Resident Registration Act so that the notice of article 6 Item 2 cannot be delivered, or makes a false registration to have his resident registration obliterated pursuant to Article 8 or Article 17 Item 2 of Resident Registration Act, or disobeys the order of Article 8 Item 1, will be imprisoned for less than one year or penalized with a detention or a fine of less than two million won.

-Article 6, Item 1 of Establishment of Homeland Reserve Forces Act

: The Minister of National Defense can provide the Homeland Reserve Forces training for up to 20 days per year in accordance with the Presidential Decree. However, in accordance with the Statute, the training should be refrained during the period of a direct election for public office.

2. Premise of the Trial

a. Summary of this case

1. Summary of the Indictment Facts of this case

The Indictment facts of this case can be summarized as “The defendant, subject to the Homeland Reserve Forces training, when receiving the notice of training issued by the head of 1st division of the army unit No. 7508 for the second 24-hour training for those who are not subject to the mobilization training at the computer office on the opposite side of Jeil bank in Woongsang-up, Yangsan-si, at 13:00, September 14, 2006 did not comply with the notice without justifiable reasons, and when he was at Wonjin Apt. 101-412, 443 Soju-ri, Woongsan-up, Yangsan-si, at 19:30 September 17, 2006, he received the notice of training from the above-mentioned military unit for the supplementary 6-hour training of the execution of the third Homeland defense strategy of the first half year of 2006, at Yangsan Seok-gye training camp on September 29th, but did not appear for the summon without justifiable reasons.’

2. The Intent of Defense Statement

The defendant started the Active Service in August, 2003, serving as a army soldier in the Air Force located in Yeochoen-si, Gyung-buk Province until August 2005. Upon being discharged from the army as a sergeant, he was transferred to the Homeland Reserve Forces.

His family consists of his parents and a younger brother. His mother and young brother were Jehovah’s Witnesses before the defendant joined the army, who later encouraged him to share the belief upon his discharge from the military. Since converted to one of Jehovah’s Witnesses, the defendant has refused the military training of Homeland Reserve Forces because the training is against his religious belief.

b. Whether the premise is fulfilled or not

(1) The premise of this trial is fulfilled when ① a specific trail is pending at the court, ② the statute whose constitutionality is under question is applicable to the case at hand, and ③ the court in charge of this case is influenced by whether the statute is constitutional or not, giving a different decision accordingly.

(2) In this case, when the articles of the law mentioned in the main text above is ruled to be unconstitutional, they will lose its effect retroactively (Article 47, Item 2 of the Constitutional Court Act, the additional clause), and the case itself will not constitute a crime as indicted by those articles in question, compelling the court to rule that the defendant is not guilty with regard to this case in accordance with Article 325 of Criminal Procedure Act.

(3) Thus, whether the articles in question are constitutional or not will decide whether the indictment facts of this case are found guilty or not, affecting the main text of the decision of the court in charge of this case. Therefore whether the articles of this case are constitutional or not rightly consists of the premise of this trial.

3. The Unconstitutionality of the articles of the law in this case

a. Introduction

(1) All citizens shall have the duty of national defense under the conditions as prescribed by Act(Article 39, Item 1 of the Constitution), and any man who is a national of the Republic of Korea, shall perform faithfully military service under the conditions as prescribed by the Constitution of the Republic of Korea and Military Service Act (Article 3 Item 1 of Military Service Act), and the military service shall be classified into active, reserve, recruit, the first militia and the second militia services and the reserve service will be rendered by those who have completed active service, and others who are transferred to reserve service under this Act. (Article 5, Item 1-2 of Military Service Act)

(2) Accordingly, Military Service Act prescribes that persons who have received a notice of enlistment in the active service or a notice of call (including a notice of enlistment through recruitment) and fail to enlist in the army or to comply with the call, even after three days from the date of enlistment or call without any justifiable reason, shall be punished by imprisonment for not more than three years(Article 88 Paragraph 1 Item 1 of Military Service Act), and Establishment of Homeland Reserve Forces Act states that anyone who fails to appear for the Reserve Forces training without justifiable reasons will be imprisoned for less than one year or penalized with a detention or a fine of less than two million won(Article 15 Item 8 of Establishment of Homeland Reserve Forces Act).

(3) As those transferred to the Homeland Reserve Forces upon their completion of active service are subject to the duty of military service which derives from the duty of national defense prescribed in the Constitution until the closure of this duty (until the age of 40 for those subject to Homeland Reserve Forces, Article 72 Item 1 of Military Service Act), the articles of which the adjudication on Constitutionality was requested seem to infringe the freedom of conscience and the freedom of religion of conscientious objectors who refuse the military training provided by homeland reserve forces. Furthermore their human dignity and worth, the right to pursue happiness and the right of equity are in risk. This problem, in essence, is the same as the dilemma of those who are enlisted for the active service, but who refuse the conscription for reasons of their conscience.

b. Freedom of Conscience under the Constitution(the major opinion of the Decision 2002-HunGa-1 of the Constitutional Court on August 26, 2004)

(1) The Constitution, stating in article 19 that “All citizens shall enjoy freedom of conscience” guarantees freedom of conscience as the fundamental rights of citizens. Therefore when the law order of the state comes in conflict with an individual’s personal or ethical decision or his conscience, the Constitution requires the state to protect the individual’s conscience. If a small number of citizens refuse to submit themselves to the law order supported by the majority by reasons of their freedom of conscience, the collision of the law order of the state and the individual conscience can happen at any occasion.

Conscience under the protection of the Constitution is a powerful and sincere voice of one’s mind that he should judge right or wrong of a certain matter and act accordingly, or the values of his existence will shatter, as a compelling and specific one. That means, ‘a conscientious decision’ embracing all serious ethical decisions between right and wrong, indicates that one cannot act against his own conscience without severe agony as he is completely subject to the conscientious decision unconditionally in a specific situation.

(2) The conscience under the protection of freedom of conscience is not the same with the opinion of the majority in democracy or the value they support, but is a personal and very subjective phenomenon. Conscience cannot be judged by means of its target, contents or motive. Especially whether a conscientious decision is rational, reasonable or proper, or is in harmony with the law order, the social customs or the ethics cannot be the standard to determine its existence.

Generally, since the majority in democracy forms the law order and the social order according to their political preference and moral values, the conflict between their conscience and the law order of the state or the social ethics is regarded as exceptional. What matters in reality in connection with the freedom of conscience is not the conscience of the social majority, but that of a social minority who goes beyond the present law system or the ethical standard of the society. Therefore regardless of whether one’s conscientious decision is based on a certain religious doctrine, his viewpoint of the world or other standards of value, all forms of conscientious decisions are protected by the freedom of conscience.

(3) In case of a conscientious objector, if he formed a serious conscience refusing war and the murder of human according to his religious conviction, moral values and viewpoint of the world, his decision that ‘he is unable to accept the duty of military service’ is a very powerful, sincere, and ethical decision against which he cannot act without inner conflict with his own conscience, putting him in a crisis of his ethical identity when required to perform the duty of military service. Thus when two contradictory orders, which are ‘the order of his conscience’ and ‘the order of the law system’ collide, the freedom of conscience is supposed to provide the possibility for him to follow the voice of his conscience, and this is the main benefit of the freedom of conscience for individuals. As the articles brought into question in this case are forcing a conscientious objector to go against his own conscience in forms of the criminal punishment, they are restricting the freedom of conscience realization in nonperformance, including ‘the freedom of not being forced by the state to act against his own conscience,’ and ‘the freedom of not being forced to perform the legal duties against his own conscience.’

c. Whether the articles of which adjudication of constitutionality was requested violate freedom of conscience or not(the opinion of disagreement by Judges Kyung-ill Kim and Hyo-sook, Jeon in the decision of 2002-HunGa-1 of the Constitutional Court on August 26, 2004, and by Judge Gang-gook, Lee in the decision of 2004-Do-2965 by the full board of the Supreme Court on July 25, 2004)

(1) Considering the fact that the freedom of conscience is the basic and foremost right of the rights of mental freedom, and the freedom of conscience realization should not be overlooked, the severe conflict between the current law and conscience of individual conscientious objectors, and the on-going domestic and international debates and experiences and the extent to which the lawmaker’s authority in this regard, the lawmaker now bears the responsibility to deal with the discord of freedom of conscience and the equity in the performance of the duty of national defense and seek their harmony by means of offering an alternative, and, in reality, it is possible for him to bringing about such a provision.

(2) In the format of democratic decision-making with the major opinion as the basic norm, taking into account and reflecting the minority opinion that differs from that of the majority is the integral step to ensure the basic human rights of individuals and the support of democratic social order as the core of the Constitution. Therefore by respecting and accommodating the opinion of conscientious objectors, if possible, as a social minority, we can lead our society to progress into a mature and advanced one.

(3) In reality, because the lawmaker has compelled conscientious objectors or the social minorities to perform the military duties prescribed in Article 88 Paragraph 1 of Military Service Act and the articles whose constitutionality is brought into question in this case, making the least effort to help resolve the long-standing conflict between their conscience and the law, the articles in the main text above are rightly said to be unconstitutional, to the extent to which they unconditionally force conscientious objectors to enlist for the active service, and require those in the Homeland Reserve Forces to accept the military training, while brining criminal punishment when they refuse.

(4) Also, in this case, though the defendant is also under the binding effect of the criminal laws, bringing the criminal punishment, the most powerful means of restraint by the state, to the defendant who refused the duty of military service in accordance with the decision of his sincere and uncompromising religious conscience, will explicitly violate the human dignity of the defendant, as it is a overly restricting means to completely ignore the balance between the responsibility of a doer and the means of restraint as the main factor of determining a criminal punishment. Furthermore, it is obvious that such a punishment for this defendant will by no means achieve the original purpose of criminal punishment such as the chastisement and prevention of the crime or the education of the criminal, at all angles. Especially as the defendant decides to stick to the order of his religious conscience that are compelling and uncompromising under the extreme mental agony due to the disagreement of the duty of military service in accordance with the universal values and the command of his religious conscience, it seems unlikely that the defendant will change his mind and agree to comply with the current law. Therefore in this case, it is more fitting and reasonable that the state takes one step back from wielding its right of bringing punishment to him and give priority to the respect and protection of freedom of conscience of individuals.

4. Conclusion

a. The current law concerning the performance of the duty of military service requires all males to enlist for the active service in accordance with Article 88 Paragraph 1 of Military Service Act, or receive the military training in accordance with the articles whose constitutionality are now brought under question in this case, brining criminal punishment to those who refuse.

However, there are significant differences between those enlisted for active service and those transferred to the Homeland Reserve Forces upon completion of their active service in terms of the forms and period of service, and the severity and contents of their training(The lawmaker is expected to allow the defendant to select from penalty fine or detention, instead of brining a sentence of imprisonment.), when it comes to whether to recognize the conscientious objection to military service by those in Homeland Reserve Forces, there are much more reasons to allow a wider and relaxing interpretation of various restraining factors like the current status of national security of Korea, the social demand of equity of the performance of military duty and other factors that can hinder the adoption of a system of alternative service, and there seems to be far less influence upon the fulfillment of a crucial public interest called the national security, compared to the conscientious objection to active service.

b. According to the majority opinion of the decision of 2002-HunGa-1 of the Constitutional Court on August 26, 2004 concerning the constitutionality of Article 88 Paragraph 1 of Military Service Act, the lawmaker is obliged to make a serious consideration of whether there is a way to dissolve the conflict between the freedom of conscience and the public interest of national security and to make them compatible, to seek an alternative to ensure the realization of national security while protecting the conscience of those who refuse military service, and to evaluate whether the society is mature enough to show understanding and forbearance to conscientious objectors. Even if the lawmaker decides not to adopt a system of alternative service, there has been no progress in improving the current law by reflecting the majority opinion of the aforementioned decision since it was given two years and seven months ago, despite the fact that it should have contemplated upon whether to revise the law so that it can strengthen the protection of conscience. In consequence, the Constitutional Court needs to go further than merely suggesting or expecting the revision of the law, but should resolutely rule that the articles of this case be unconstitutional.

c. As considered so far, as the articles whose constitutionality are brought under question violate the freedom of conscience under the protection of the Constitution, the court requests adjudication of the Constitutionality of Law as stated in the main text.