Research Report
A study on ways to amend the Military Service Act
Ⅰ. Backgrounds and Purposes
▶ Since its enactment on May 6, 1949 under Law No. 41, the Military Service Act (“the Act”) has been amended on a total of 103 occasions (62 partial amendments, 5 full amendments, 35 amendments associated with other laws) as of October 2020. The contents of the policies contained in the Act have been enlarged through such amendments, but it has been pointed out that the connections among its clauses have loosened and many of its clauses have become difficult for laypeople to understand.
▶ Since its last amendment in 1993, great changes have been made in the legal environment surrounding the Act. It is noteworthy that the Act on the Assignment and Performance of Alternative Service was enacted to provide alternative methods for persons who intended to fulfill their duty of military service in a form other than active service on the grounds of freedom of conscience, following the Constitutional Court’s ruling that Article 5(1) etc., of the act, which did not provide methods of alternative service for conscientious objectors associated with Article 19 of the Constitution, is unconstitutional.
▶ It is necessary to review the need for a long-awaited partial amendment to the Act and changes in the surroundings related to the enactment and amendment of the laws associated with the Act from the legal perspective. Thus, this study proposes an amendment designed to systematically improve the contents of the Act.
Ⅱ. Major Content
▶ Legal basis and nature of the Act
○ Article 39 of the Constitution stipulates the national duty of national defense and the obligation to complete military service, but fails to provide specific details. The Constitutional Court classifies the duty of national defense into direct and indirect duties aimed at the formation of military forces and the duty of cooperation, such as provision of the relevant efforts.
○ Since its initial enactment in 1949, efforts have been made to further develop the Act, while addressing the task of having to take into account very diverse social changes from the perspective of allocating the country’s human resources.
○ Social discussions about the Act mostly concern the universality and equity (or fairness) of the obligation to complete military service. Recently, however, the scope of such discussions has been extended to include the volunteer military system, the question of whether to impose the duty on women or not, and substitute service in lieu of military service for artists and athletes, etc.
▶ The system and the contents of the Act
○ As for the “internal system” of the Act, neither the Constitution nor the Act defines the concept of military service or the obligation to complete military service, and thus it is difficult to define the exact concept. Meanwhile, the Act classifies military service into six types, i.e. active service, reserve service, supplementary service, preliminary military service, wartime labor service, and alternative service. The Act puts active service at the center of all forms of military service in order to secure standing armed forces, and specifies the other services ancillary to it.
○ With regard to the “external” system of the Act, the following laws are related to the Act: the Military Personnel Management Act, the Establishment of Homeland Reserve Forces Act, the Framework Act on Civil Defense, the Act on the Assignment and Performance of the Alternative Service, and the Act on the Report and Disclosure of the Military Service Records of Public Officials, etc. We can view the Act as the framework law and those stated in the foregoing sentence as individual laws designed to supplement the Act.
○ The system of the Act starts with a clear-cut definition of the concept of military service and the obligation to do military service. Such a conceptualization is significant in that it makes the system and contents of the Act itself easier to understand and clarifies its relationship with other relevant laws.
▶ How to improve the Act
○ Ways of improving the Act can be reviewed from the following three perspectives.
○ It is necessary ① to review the need for the insertion, deletion, separation, and integration of clauses and to reflect them with the aim of improving the system; ② to simplify hard-to-understand, ambiguous or obscure legal terms, refrain from using authoritative expressions, and correct inexact sentences; ③ to put into practice the principles contained in the Constitution, while reflecting the need for basis of delegation in the relations between the relevant laws, enforcement ordinances, and enforcement rules from the perspective of a system of norms.
Ⅲ. Expected Effects
▶ This study is the result of reflection on and comprehensive arrangement of the results of partial and piecemeal amendments made over a long time, along with changes in the legal system, and the relevant social discussions about the enactment of the Act on the Assignment and Performance of Alternative Service, etc. It is expected that this study will be used as a basic material by the persons responsible for considering a complete overhaul or amendment of the Act.
▶ This study aims to point out specific problems about the system and contents of the Act and propose ways of improving it for persons interested in changing the existing laws so as to make them easier to understand.