병역법 제3조 제1항 등에 관한 헌법소원을 통해 본 ‘남성만의’ 병역의무제도

Abstract

This article attempts to examine a legal case that is currently pending at Constitutional Court in Korea on December 1st, 2008. The petitioner K, a Korean male citizen, argues that the Military Act Art.3 Par.1 and Art. 8 Par.1 violates his rights of equality and freedom. While man’s conscription is mandatory, woman’s military service is only voluntary in Korea as prescribed in the Articles above. In the modern war, as the petitioner claims, physical strength is not the only prerequisite for becoming a soldier. Moreover, military roles have been diversified, and there are many roles that do not necessarily require physical force. Thus, as K argues, it is the result of the legislators’ arbitrary policy to limit mandatory military service only to men. K petitioned to the Court to examine the constitutionality of the Articles. This study discusses this case from the view of socio-legal studies that locates the law and legal cases within the social context and interprets them as a symptom of social structure and cultural tides. It is also significant to interpret the ‘male only’ military prescription from a feminist legal point of view. In the main argument, the article deals with the preexisting arguments about this case and one USA Supreme Court case, Rostker v. Goldberg (1981). It examines the grounds for constitutionality of the Military Act Articles in question. Then, the notion of ‘beneficial discrimination’ against women was criticized because of conceptual pitfalls and factual incorrectness. Women as well as men were discriminated by this men-only-draft-system. Difference in women have been the strongest ground as to why women can and ought to be exempted from the mandatory military service. As ‘women’s difference’ would mainly signify women’s physical weakness and pregnancy, this difference cannot be free from gender stereotyping, the very object the equal rights is trying to dismantle. The ‘difference’ that the law can protect and affirm needs to be strictly examined as in the case of BFOQ (Bona Fide Occupational Qualification). With regard to the standards of the ‘maximum military power,’ and ‘enough personnel for the service,’ this article states them as equally improper grounds for the constitutionality of the Articles. Based upon these arguments, this study concludes with the opinion that the Articles of the Military Act in question shall not be congruent with the Constitution in Korea.