Constitutional Court Dismisses Unconstitutionality Review of Punishment Clause for 'Conscientious Objection to Reserve Forces Training'... "No Premise for Trial"

Seoul Jongno-gu Constitutional Court Grand Bench / Photo by Hyunmin Kim kimhyun81@

[Asia Economy Reporter Kim Daehyun] The Constitutional Court dismissed a request for a constitutional review that claimed the law punishing conscientious objection to reserve forces training violates the Constitution.

Since the Constitutional Court and the Supreme Court have recognized conscientious objection to military service and conscientious objection to reserve forces training, whether criminal punishment applies depends not on the challenged legal provision but on the court’s specific judgment on whether the objection to reserve forces training is genuinely conscientious.

On the 25th, the Constitutional Court unanimously dismissed the constitutional review request submitted by the Suwon District Court and Jeonju District Court regarding Article 15, Paragraph 9, Subparagraph 1 of the Local Reserve Forces Installation Act, citing the lack of “prematurity of the trial.”

Prematurity of the trial is a requirement for constitutional review, meaning that the outcome or main reasoning of an ongoing trial would change depending on the constitutionality of the law, resulting in a different judgment.

The relevant provision stipulates that “a person who fails to attend reserve forces training without justifiable reason” shall be punished by imprisonment of up to one year, a fine of up to 10 million won, detention, or a minor fine.

The petitioner, Mr. A, and others were indicted for refusing reserve forces training without justifiable reason. While undergoing trials at the Suwon District Court and Jeonju District Court, they claimed that Article 15, Paragraph 9, Subparagraph 1 of the Local Reserve Forces Installation Act was unconstitutional and requested a constitutional review. Each court accepted the request and submitted the constitutional review to the Constitutional Court.

However, the Constitutional Court pointed out, “The November 2018 ruling by the Supreme Court’s full bench determined that conscientious objection to military service based on genuine conscience qualifies as a ‘justifiable reason.’ The issue of punishing those who refuse reserve forces training based on conscience is not a matter of the constitutionality of the challenged provision but remains a matter for the court’s specific judgment.”

Furthermore, the Court stated, “Since the requesting courts can determine whether there is justifiable reason and render a verdict of guilt or innocence based on this, the constitutional review request does not meet the prematurity requirement and is therefore inadmissible,” and thus dismissed the case.

Previously, the Supreme Court’s full bench confirmed the acquittal of a conscientious objector based on religious beliefs in 2018. The Supreme Court set the standard that religious or conscientious beliefs constituting justifiable reasons for military service refusal must be “deep, firm, and sincere.”

Last month, the Supreme Court also ruled acquittal in the appeal trial of a person refusing reserve forces training based on religious beliefs.

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