Constitutional Court Rules Forced Dismissal of Draft Evaders Unconstitutional, Halting Practice After 64 Years

[Financial News] The Constitutional Court of Korea has ruled that a provision of the Military Service Act requiring the dismissal of people identified as draft evaders is unconstitutional. The court said forcing someone out of work without giving them a chance to explain whether they had a valid reason for avoiding military service excessively infringes on the freedom to choose an occupation. The ruling comes 64 years after the system was introduced in 1962.
On the 27th, the court issued a decision of incompatibility with the Constitution in a constitutional complaint filed by A, a conscientious objector, over Article 76 of the Military Service Act. Such a ruling does not immediately invalidate the law, but temporarily keeps it in force while urging lawmakers to revise it. The court set Feb. 29, 2028, as the deadline and said the current provision will remain in effect until the National Assembly amends the law.
The provision under review was limited to the part of Article 76, Paragraph 1, of the Military Service Act that states, "Employers must dismiss a person who falls under Item 2 if that person is currently employed." Item 2 refers to a person who is evading conscription or mobilization. However, the court did not rule on the part that bans the "hiring of new employees" who are draft evaders.
Article 76, Paragraph 1, of the Military Service Act bars appointing or hiring as public officials or employees anyone who is evading military service examinations, conscription or mobilization, or military service, social service duty, or alternative service duty. If such a person is already employed, the law requires dismissal. Employers who violate the rule may face up to six months in prison or a fine of between 2 million won and 20 million won under Article 93, Paragraph 1, of the act.
Seven justices said the provision was unconstitutional. Five justices — Chief Justice Kim Sang-hwan, Kim Hyungdu, Jeong Hyeongsik, Jeong Gye-seon, and Justice Oh Young-joon — supported a decision of incompatibility with the Constitution. Two justices, Kim Bok-hyeong and Ma Eunhyeok, said the provision should be struck down immediately as simply unconstitutional. Justices Jung Jungmi and Cho Han-chang voted to dismiss the case.
The five justices who supported the incompatibility ruling acknowledged the need for a dismissal system itself. However, they criticized the fact that the process gives military duty holders no opportunity to submit materials or explain themselves, and instead relies solely on the Military Manpower Administration's unilateral judgment. They also said it is problematic that employers have no choice but to fire workers based on the MMA's decision.
Justices Kim Bok-hyeong and Ma Eunhyeok said the dismissal system itself is unconstitutional. They argued that the current Military Service Act already imposes strong sanctions, including criminal punishment, and that banning employment as well is excessive. By contrast, Justices Jung Jungmi and Cho Han-chang voted to dismiss the case, saying the law includes supplementary systems such as assignment to wartime labor service in cases of financial hardship and alternative service for conscientious reasons, making it highly unlikely that dismissal would actually occur.
Regarding the significance of the ruling, the court said, "This is a decision of incompatibility with the Constitution that continues to apply the law while requiring procedural safeguards for those under military duty," and added, "Once the legislature enacts improvements, the dismissal system for draft evaders will be implemented with its procedural shortcomings addressed."
Meanwhile, A was criminally referred by the Incheon office of the Military Manpower Administration in 2015 for refusing military service and went to trial, but was ultimately acquitted by the Supreme Court of Korea in 2020. He was later indicted again after the Incheon office of the MMA re-referred him on suspicion of violating the Military Service Act and is now facing a second trial on appeal. In August 2023, he was also removed from a private company where he had been working as a dispatched employee.
[email protected] Lee Hwan-ju Reporter