병역법 사건 재론 - 헌재 2023. 9. 26. 2019헌마423 결정을 소재로 하여 -

Abstract

The Constitutional Court understands that the first sentence of Article 3 (1) of the Military Service Act imposes a ‘military obligation’ on the ‘every masculine gender of the Republic of Korea’. However, this provision only requires the musculine gender to faithfully fulfill his obligations under the ‘military disposition’ under Article 14 of the Military Service Act. The first sentence of Article 3 (1) of the Military Service Act does not impose a military s ervic e obligation, but only orders that if there i s already an imposed military service obligation, it should be faithfully fulfilled. Furthermore, even if the ‘every masculine gender of the Republic of Korea’ part is rewritten as ‘every person of Korea’, there is no difference in the content of the norm. The provision that imposes military service obligations on musculine genders is Article 8 of the Military Service Act, which stipulates preliminary military service. Therefore, the possibility of infringement of basic rights and precondition of the discipline of a case are not recognized for the first sentence of Article 3 (1) of the Military Service Act. In 2018, [the conscientious objection to military service case] was sentenced. In order to follow the conclusion of the case, alternative service was added as a type of military service in Article 5 (1) of the Military Service Act. As a result, it became difficult to maintain the conclusion of [the Military Service Act case] of 2010 on the premise that all military service ultimately participates in battle. However, this issue was not addressed in this case. In order to maintain the conclusion of [the Military Service Act case], the Military Service Act should be amended to delete Article 5 (1) 6 of the Military Service Act, and a new fictitious provision that a person who has fulfilled an alternative service is deemed to have fulfilled his military service obligation.