CONTENTS
- 1. Violation of the Military Service Act, What Were the Detailed Circumstances?
- - Violation of the Military Service Act, What Are the Relevant Statutes?
- 2. Violation of the Military Service Act, What Was the Court's Determination?
- 3. Violation of the Military Service Act, What Was Daeryun's Strategy?
1. Violation of the Military Service Act, What Were the Detailed Circumstances?
A, who filed the administrative litigation on the charge of violating the Military Service Act, was designated as subject to active-duty enlistment in June 2013 and received an active-duty enlistment notice in November 2017.
However, he failed to report for enlistment without justifiable cause, and as a result, in 2018 he was sentenced to six months' imprisonment with a one-year suspended sentence (a suspended sentence under Korean law, broadly comparable to a suspended sentence or probation in common-law systems, under which the conviction loses its effect once the suspension period passes without incident) on the charge of violating the Military Service Act.
In addition, after receiving a notice for re-examination of his military service status in April 2020, he failed to appear for the examination, and in 2021 he was sentenced by the District Court to six months' imprisonment with a two-year suspended sentence on the same charge.
Separately from this, A was also sentenced in 2021 to six months' imprisonment with a two-year suspended sentence and a fine of 4 million won on a charge of forging an employment contract.
Thereafter, under the Military Service Act, A fell within the category of those who have been sentenced to imprisonment with a suspended sentence of one year or more, and so became subject to call-up as a social service agent.
While awaiting his call-up as a social service agent, A abruptly applied to the Military Manpower Administration for permission for overseas travel, stating that he intended to pursue language study abroad, but the Military Manpower Administration refused the application on the basis of Article 70 of the Military Service Act and related provisions.
A then filed suit, claiming that his freedom of learning and freedom of residence and movement had been infringed.
Violation of the Military Service Act, What Are the Relevant Statutes?
🔗The Military Service Act is a law that sets out matters concerning the military service of citizens, and under the Constitution and the Military Service Act, adult men in Korea must perform their military service duty.
Acts constituting a violation of the Military Service Act include falsifying a medical certificate or feigning a health condition in order to evade enlistment, and the level of punishment varies according to the type of violation.
Those who violate military service obligations, such as draft evaders, are referred to as "military service offenders." As measures to punish and sanction such military service offenders, the current Military Service Act not only imposes penalties for violations of the Act, but also applies restrictions on employment and licensed businesses, prohibitions on departure from the country, and restrictions on permission for overseas travel and on the issuance of passports.
▣ Article 70 of the Military Service Act (Permission for and Cancellation of Overseas Travel) (1) A person subject to military service obligation who falls under any of the following subparagraphs shall obtain permission from the Commissioner of the Military Manpower Administration in order to travel overseas. 1. A person aged 25 or older in the first reserve for military service preparation, the supplementary service, or the alternative service who has not been called up 2. A person serving as a member of the reserve for shipboard service, the supplementary service, or as an alternative service agent
(3) Where a person who has obtained permission for overseas travel finds it difficult to return within the permitted period, he shall obtain permission for an extension of the period or permission for overseas travel from the Commissioner of the Military Manpower Administration by no later than 15 days before the expiration of the period; a person who departed before reaching the age of 25 shall do so by January 15 of the year in which he reaches the age of 25. |
2. Violation of the Military Service Act, What Was the Court's Determination?
The Administrative Court, which heard the case concerning the disposition denying overseas travel issued by the Military Manpower Administration to A, who had committed a violation of the Military Service Act, found the disposition to be lawful.
The court stated, "A is subject to denial of overseas travel because he was criminally punished twice for violations of the Military Service Act," and determined that "his situation does not fall within the unavoidable grounds prescribed by the Military Service Act* either."
The court further stated, "Restrictions related to the performance of military service obligations are recognized relatively more broadly than in other cases," and held, "Although A's asserted freedom of learning and freedom of residence and movement are restricted, considering the motive, purpose, and circumstances that led to this disposition, it does not appear that, in violation of the constitutional principle against excessive restriction, the disposition essentially infringes the plaintiff's freedom of residence and movement and his freedom of learning."
* Unavoidable grounds prescribed by the Military Service Act: the death of a family member, treatment of the person's own illness that is difficult to treat domestically, the settlement of family affairs for enlistment or call-up, and the like
3. Violation of the Military Service Act, What Was Daeryun's Strategy?
We analyzed the Administrative Court's judgment, which found justified the Military Manpower Administration's disposition denying overseas travel on the ground of a violation of the Military Service Act.
As in the case above, acts constituting a violation of the Military Service Act are all regarded as acts that significantly impair national security and the operation of the armed forces, and they are subject to strict punishment.
Accordingly, if you have received notice from the Military Manpower Administration or an investigative agency requesting that you appear for questioning on related charges, it may be advisable to consult with a legal professional promptly.
The 🔗National Defense and Military Group of Daeryun Law Firm LLP, led by Group Head Kim Young-soo, who has handled various military criminal cases as a former Chief Judge of the Navy Military Court and a Presiding Military Judge of the High Military Court of the Ministry of National Defense, provides legal services suited to each client's situation through attorneys experienced in matters related to military law.
🔗A Defense Case for a Client Charged with Staying Abroad for the Purpose of Evading Military Service Obligations is among the various case studies held by Daeryun Law Firm LLP, and you are welcome to request a legal consultation at any time.
