South Korea's Constitutional Court rules mandatory dismissal of draft dodgers unconstitutional

South Korea's Constitutional Court has struck down a controversial provision of the Military Service Act that mandated employers dismiss or refuse to hire individuals evading mandatory military service. The court's decision on May 27 found the law unconstitutional, citing its excessive infringement on the right to choose one's occupation without providing a fair hearing.

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The provisions of the Military Service Act that mandate the dismissal of individuals evading military service are unconstitutional.

The ruling stemmed from a case involving an individual, identified as 'A', who was eventually dismissed from his job after his employer received a notice from the Military Manpower Administration. This notice warned that the employer could face punishment if 'A' was not terminated, as 'A' had refused alternative service after being granted an exemption from military duty on grounds of conscientious objection.

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The current system excessively infringes upon the right to choose one's occupation without providing an opportunity for the individual to be heard.

The court, in a 7-2 decision, determined that while the need to dismiss those who intentionally evade military service is recognized, the current system fails to offer the individual a chance to present their case before such action is taken. This lack of due process was deemed a violation of the principle of proportionality.

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It is excessively harsh to prohibit all employment in addition to criminal penalties for draft dodgers.

Two justices even argued for a complete "unconstitutional" ruling, stating that prohibiting all employment in addition to criminal penalties is excessively harsh. However, two other justices dissented, viewing the provisions as necessary to ensure fair and efficient military service and to uphold the equity of the burden of service. The National Assembly now has until February 29, 2028, to revise the Military Service Act.

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The provisions are unavoidable for ensuring fair and efficient military service and the equity of the burden of service.