2006헌마328 병역법 사건에 관한 절차법적 검토

Abstract

The Constitutional Court ruled that the first sentence of Military ServiceAct Article 3 which reads “All male nationals of the Republic of Korea shallfaithfully perform his obligatory military service under the Constitutionand this Act.”(hereafter “the provision in question”) does not violate theConstitution. The procedural aspect of this decision, that is, whether the filing forConstitutional Litigation is admissible in this case, is the subject of thisarticle. The court opinion of the Constitutional Court did not bother tomention this point, assuming the filing to be admissible. On the contrary,Justice Min of the Court took the opinion that as the violated basic rightscould not be redeemed even if the Court ruled the provision in question tobe unconstitutional, the filing was inadmissible for lack of either (1)‘possibility of violation’ of basic rights, (2) the plaintiff's ‘self-relativeness’to the violation, or (3) the ‘legal interest’ in the protection of plaintiff'srights. The provision in question does not affect the content of obligatory militaryservice, whereas there is no legal sanction for violating this provision. Which means, the provision has no ‘possibility of violation’ of anyone'sbasic rights. This provision does not impose duty of military service on male nationalsof Korea by itself. A legal obligation arises only when some other specificlegislative provision is enacted or revised. Therefore, the provision inquestion has no ‘directiveness of violation’ of plaintiff's basic rights. The time period for the filing to be admissible should be reckoned fromthe day on which plaintiff has become a ‘male national of Korea’ (that is,the day of birth), which means that in this case the period has expiredsince 1 year after the above day, making the filing inadmissible. Both the Court opinion and the opinion of Justice Min agree on seeingthe problems of ‘possibility of violation’ and ‘legal interest’ in Equalitycases from the perspective of substantive benefit or burden, on which viewthe author of this article cannot agree. In Equality cases, there can be a‘possibility of violation’ only when there is a differentiation based on thefactors by which the Constitution forbids separation. Whereas, the violatedequality can be redeemed only when that differentiation is abolished.