Court Rejects Alternative Service Worker’s Request to Commute for Childcare, Rules Living-in Duty Does Not Violate Basic Rights

An alternative service worker filed an administrative lawsuit seeking permission to commute to and from duty for childcare reasons, but the court rejected the claim. The court held that, in light of fairness between alternative service and active-duty service, a dormitory-based system is necessary.
According to the legal community on the 6th, Administrative Division 13 of the Seoul Administrative Court, presided over by Judge Jin Hyun-seop, dismissed in February a lawsuit filed by alternative service worker A against the Military Manpower Administration (MMA) and the Ministry of Justice (MOJ). A had sought to overturn the agencies’ refusal to apply the Full-time Reserve Service system to him. The case was closed without a ruling on the merits because the procedural requirements for the lawsuit were not met.
Alternative service is a system under which conscientious objectors to military service, including for religious reasons, perform non-military public duties for 36 months.
A, a member of Jehovah's Witnesses, was assigned to alternative service in 2021 and has been serving in a dormitory-based arrangement at Hwaseong Vocational Training Prison since October 2023. After his daughter was born in 2024, he applied to the MMA and MOJ, asking, "Please allow me to switch to a commuting-based arrangement so that I can care for my child while serving." His request was denied.
A argued that active-duty soldiers and those in Full-time Reserve Service can, with approval, serve while commuting, and that restricting only alternative service workers in this way amounts to arbitrary discrimination. The MOJ countered that the Act on the Assignment to and Performance of Alternative Service contains no provision allowing exceptions to dormitory-based service, and therefore the lawsuit itself was procedurally improper.
The court found that A’s claim did not constitute a proper subject of litigation. Because the Act on the Assignment to and Performance of Alternative Service provides no exception to dormitory-based service, the court concluded that the MOJ and MMA have no discretion to grant the requested change.
The court also determined that the principle of dormitory-based alternative service does not excessively restrict basic rights.
“Given the actual intensity of dormitory-based service for active-duty soldiers and the purpose of the alternative service system, which is to fulfill military service obligations in place of active-duty or other forms of service, it is difficult to view the statutory provision as imposing an excessive restriction on basic rights,” the bench stated.
The court went on to say, “The mere fact that dormitory-based service entails various restrictions does not, by itself, mean that it creates an excessive restriction that violates the principle of minimal impairment,” and added, “It is also hard to conclude that alternative service workers with children are subjected to an excessive restriction that runs counter to the principle of minimal impairment.”
The bench also took into account that the dormitory-based requirement for alternative service is a structural mechanism designed to ensure fairness in the burden of military service. It further held that whether to allow exceptions to the living-in obligation falls within the legislature’s discretion, and that under current law, the state cannot be said to have an explicit duty to guarantee commuting-based service.
scottchoi15@fnnews.com Choi Eun-sol Reporter