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(영문) 헌재 2010. 11. 25. 선고 2006헌마328 공보 [병역법 제3조 제1항 등 위헌확인 (제8조 제1항)]

[공보(제170호)]

Main Issues

A. Whether the period for filing a constitutional complaint against a male who is a national of the Republic of Korea has expired as to Article 8(1) of the former Military Service Act (amended by Act No. 3696, Dec. 31, 1983; Act No. 9754, Jun. 9, 2009; hereinafter “former Military Service Act”) that stipulates that he shall be transferred to the first citizen service from the age of 18 to the first citizen service (affirmative)

B. Whether a male who is a citizen of the Republic of Korea violates the right to equality under the main sentence of Article 3(1) of the former Military Service Act (hereinafter “instant legal provision”) that imposes a duty of military service on a male who is a citizen of

Summary of Decision

A. The claimant was transferred to the first citizen service on January 1 of the year in which he turns 18 pursuant to Articles 8(1) and 2(2) of the former Military Service Act, and the claim against Article 8(1) of the former Military Service Act, which was made after the lapse of one year thereafter, is unlawful as the deadline for request expires.

(1) Opinion dismissing the transfer of a Justice, Kim-hee, Justice Kim Jae-ok, or Justice;

The legal provisions of this case contain discrimination in cases where the Constitution specifically demands gender equality or seriously limits relevant fundamental rights.

In light of the fact that the legislative formation right of legislators is recognized with respect to the determination of the scope of persons subject to conscription, the issue of whether the legal provision of this case infringes on the right of equality should be determined according to the relaxed standard of review.

In light of the fact that a male as a group has physical capability more suitable for combat compared to a female as a group, it is practically difficult to establish an inspection system to compare combat suitability based on individual physical capabilities, and that a female with physical capabilities is considerably liable for military service subject to a draft physical examination due to physical characteristics due to months, pregnancy, childbirth, etc., it is difficult to regard that only a male as a person liable for military service should be designated as a person liable for military service who is subject to a draft physical examination, in view of the fact that a female with physical capabilities is significantly liable for military service due to their physical characteristics due to months, pregnancy, childbirth, etc. On the other hand, supplementary service or the second citizen service, etc. are preliminary power that can be immediately put into military service in a state of national emergency, and even if they are not in active service at ordinary, it is difficult to regard that a female with certain physical capabilities is not imposed on the person liable for military service, such as supplementary service, as it does not violate the principle of prohibition against persons

(2) Opinion concurring with the above dismissal opinion by Justice Kim Ba-ok

Legislation should make efforts to improve the alternative form of service outside of active duty should be limited to inevitable cases in relation to the original purpose of the duty of military service, such as homeland defense, and citizens who do not bear the duty of military service should support the performance of the duty of military service in other forms. Provided, That the specific contents are in the broad formation area of legislators.

(3) Justice Cho Jong-dae and Justice Kim Jong-tae

Since the legal provision of this case concerns the imposition of the duty of national defense, which is a basic duty under the Constitution, it is unnecessary to discuss the excessive restriction of fundamental rights. However, it is sufficient to judge whether the imposition of a basic duty is legitimate in its purpose, and whether the content of the imposition is reasonable and fair. The legal provision of this case is to secure the optimal combat force of the national armed forces for the purpose of national security, and satisfies the standards of trust under the Constitution that should be observed in imposing the basic duty, considering the physical characteristics of women, the national defense reality of Korea, etc.

The Supreme Court Decision 201Hun-Ba48 delivered on April 1, 201

According to the Constitution, all citizens have the duty of national defense, and discrimination should be permitted in compliance with the physical conditions of men and women. However, the Military Service Act imposes only on men who are not directly related to physical conditions or the ability and ability among the duty of national defense, thereby treating men and women differently without reasonable cause, and there is no institutional device to alleviate such unreasonableness of such discrimination at present. Thus, the legal provision of this case violates the right of equality of men by infringing on the right of equality of men as a arbitrary allocation of the duty of national defense.

Dismissal Opinion of Justice Min Il-young

Even if the legal provision of this case is declared as unconstitutional, inasmuch as it is difficult to deem that the previous females did not bear the duty of military service and that they had a direct and essential impact on the contents, scope, etc. of the duty of military service of the males like the claimant, the right to equality of the claimant may be infringed due to the legal provision of this case, or that the interest of the claimant for a trial is recognized, the claim against the above provision of this case is unlawful.

Documents subject to adjudication;

Articles 3 (1) (main sentence) and 8 (1) of the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983, and amended by Act No. 9754 of Jun. 9, 2009)

[Reference Provisions]

Articles 11(1), 32(4), 36(1), and 39(1) of the Constitution of the Republic of Korea

Article 69(1) of the Constitutional Court Act

Articles 2(2) and 5 of the Military Service Act

Reference Cases

A. Constitutional Court Decision 19-1, 118, 131 decided February 22, 2007, 2003Hun-Ma428, etc.

B. Constitutional Court Decision 11-2, 70, 787, 783 dated December 23, 1999; Supreme Court Decision 11-2, 770, 783

Constitutional Court Decision 2002Hun-Ba45 on November 28, 2002, Supreme Court Decision 14-2, 704, 710

Parties

Cheong Jin Kim-hoon

Attorney Park Jong-soo

Text

The request under Article 8 (1) of the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983, and amended by Act No. 9754 of Jun. 9, 2009) shall be dismissed.

The claim for Article 3 (1) of the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983, and amended by Act No. 9754 of Jun. 9, 2009) is dismissed.

Reasons

1. Case summary and the object of the trial;

A. Case summary

(1) The claimant is a male of August 13, 1981, and supported with the recruitment disease (Kastu) on October 1, 2005, and received a notice of enlistment of military recruitment soldiers from the Military Manpower Administration on December 3, 2005 by e-mail and sent it to March 13, 2006.

(2) On March 10, 2006, the claimant asserted that Articles 3(1) and 8(1) of the former Military Service Act, which impose only on men the duty of military service, violate the Constitution by infringing on the claimant’s right to equality, etc.

(b) Articles of the trial and related provisions;

Although the claimant is seeking to confirm the unconstitutionality of the entire provisions of Articles 3(1) and 8(1) of the former Military Service Act, the latter part of Article 3(1) of the former Military Service Act stipulates matters concerning women’s military service, and it is clear that there is no relevance to the claimant who is a male.

Therefore, the subject of the instant case is limited to whether Article 3(1) main sentence of the former Military Service Act (amended by Act No. 3696, Dec. 31, 1983; Act No. 9754, Jun. 9, 2009) and Article 8(1) are unconstitutional by infringing the claimant’s fundamental rights.

The contents of the relevant legal provisions and related provisions are as follows.

【Legal Provisions Applicable to Adjudication】

Article 3 (Duties of Military Service) (1) A male who is a national of the Republic of Korea shall faithfully perform his duty of military service in accordance with the Constitution and this Act, as prescribed by the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983, and amended by Act No. 9754 of Jun. 9, 2009). A female may serve only in active duty upon support.

Article 8 (Enlistment to First Citizen Service and Report on Persons to be Enlisted) (1) Any male who is a national of the Republic of Korea shall be transferred to the first citizen service from 18 to 1.

[Related Provisions]

The purpose of Article 1 (Purpose) of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 2009) is to prescribe matters concerning the duty of military service of nationals of the Republic of Korea.

Article 3 (Duties of Military Service) (2) Unless prescribed by this Act, no special exception to the duty of military service may be prescribed.

(3) Military service and assistance under paragraph (1) shall not be discriminated against on the grounds of race, color, etc.

(4) No person liable for military service but sentenced to imprisonment with or without prison labor for not less than six years shall perform military service, and he shall be removed from the military register.

Article 5 (Categories of Military Service) (1) Military service shall be classified into active duty service, reserve service, supplemental service, first citizen service and second citizen service as follows:

1. Active duty service: Officers, warrant officers, noncommissioned officers, and officer candidates appointed to active duty service under this Act or the Military Personnel Management Act concurrently enlisted in the army by conscription or application;

2. Reserve service: those who have completed active service, and those who are transferred to reserve service under this Act;

3. supplemental service: Those determined to be enlisted in active service, from among those determined to be able to serve on active service upon the completion of the draft physical, who are in service or compulsory service as public interest service personnel, public health doctors, doctors in exclusive charge of draft physical, international cooperation doctors, public-service advocates, public-service advocates, technical research personnel or skilled industrial personnel, or who have completed such service

4. First citizen service: A person who is a person responsible for military service and is not in active duty service, reserve service, supplemental service or second citizen service;

5. Second militia service: service rendered by those judged incapable of being in the active or recruit service as a result of the draft physical or the physical examination, but determined capable of military support affairs through a call for wartime labor, and by those transferred to the second militia service under this Act.

2. A summary of the claimant's assertion;

A. Although Article 39 of the Constitution provides that "All citizens shall have the duty of national defense under the conditions as prescribed by Act," the legal provisions of this case impose only on men, exempt women from the duty of military service, and treat women and men differently by gender. Meanwhile, as Article 11(1) of the Constitution demands special equality between men and women by prohibiting discrimination based on gender, more strict examination measures should be applied to treating discrimination based on gender. As such, even though there exist various means to achieve the legislative purpose, such as maintaining the military reality and diversified contents of the duty of military service, even though the legal provisions of this case impose the duty of military service only on women and exempt women from the duty of military service, it violates the principle of excessive prohibition, thereby infringing the right of equality of petitioners.

B. The legal provisions of the instant case subject to adjudication do not have any other occupation while serving in the military, have any other occupation in the designated military facilities, and infringe upon the petitioner’s vocational freedom, freedom of residence, academic freedom, right to pursue happiness, etc. by having the applicant reside in the designated military facilities and suspend his studies.

3. Determination as to whether a request under Article 8 (1) of the former Military Service Act is lawful

Article 68(1) of the Constitutional Court Act provides that an adjudication on constitutional complaint under Article 68(1) shall be filed within 90 days from the date on which the existence of the cause is known and within one year from the date on which the cause occurs (Article 69(1) of the Constitutional Court Act). An adjudication on constitutional complaint on constitutional complaint on statutes shall be filed within 90 days from the date on which the relevant statute became effective if the fundamental rights are infringed upon at the same time when the statute became effective, within one year from the date on which the relevant statute became effective, and within 90 days from the date on which the cause becomes known if the cause falls under the relevant statute after the enforcement of the statute becomes effective, and within one year from the date on which the cause occurs (see, e.g., Supreme Court Decision 2003HunMa428, Feb. 22,

However, the claimant, who was born on August 13, 1981, was transferred to the first citizen service on January 1, 1999 pursuant to Articles 8(1) and 2(2) of the former Military Service Act, and at that time, there was a cause for infringement of fundamental rights pursuant to Article 8(1) of the former Military Service Act. Thus, the claim against Article 8(1) of the former Military Service Act among the petition for a trial filed one year thereafter is unlawful, since the period for request expires.

4. Judgment on the merits

(a) The current system of the Military Service Act;

The purpose of the current Military Service Act (hereinafter referred to as the “Act”) is to prescribe the duty of military service for citizens of the Republic of Korea (Article 1 of the Act), and the exception to duty of military service can not be prescribed unless it is prescribed by the Military Service Act (Article 3(2) of the Act).

Currently, military service is classified into active duty service, reserve service, supplemental service, the first citizen service, and the second citizen service (Article 5 of the Act), and male citizens of the Republic of Korea are transferred to the first citizen service from 18 years of age to the first citizen service (Article 8 of the Act and Article 8(1) of the former Military Service Act). In certain cases, exemption from military service or transfer to the second citizen service without a draft physical examination (Article 64 of the Act). However, in principle, a person liable for military service is subject to specific disposition of military service (occupational service, supplemental service, and transfer to the second citizen service) through a physical examination and psychological examination in the year when he turns 19 years of age (Articles 11 and 14 of the Act), and a disposition of military service can be changed if there

Active duty service is classified into reserve service for a certain period of time from the date of enlistment (Articles 18 and 19 of the Act), for a period of time in relation to public interest or specialized work (Articles 26 through 43 of the Act), for a person who has completed active duty service for a certain period of time (Article 5(1)2 of the Act).

Reserve and fixed supplemental service shall be subject to a call for military force mobilization (Article 44 of the Act), supplemental service excluded from a call for military force mobilization, and those in the second citizen service shall be subject to a call for wartime labor (Article 53 of the Act), supplemental service, onboard ship reserve service, second citizen service, etc. (Article 55 of the Act).

On the other hand, the duty of draft physical, enlistment in active service, and public interest service personnel shall be exempted if they reach a certain age, and the exempted person shall be transferred to the second citizen service (Article 71(1) of the Act), and the duty of military service in the second citizen service concurrently in active duty service, reserve service, and recruit service shall be 40 years of age (Article

As such, the Military Service Act regulates legal relations such as those who are to become a member of the military unit in Pyeongtaek-si, those who are to become a member of the military unit in the event of a national emergency, and those who perform military support affairs, taking into account the situation of the supply and demand of the military forces and the results of the draft physical examination, and focuses on maintaining a reasonable scale of military force for national security at all times and securing the strength of military force in preparation for the occurrence of a national emergency.

(b) Opinion to dismiss the transfer of a Justice, Kim-hee, Justice Kim Dong-hee, Justice, or Justice;

(i)the meaning of Article 3(1) of the former Military Service Act and raising questions;

The main sentence of Article 3(1) of the former Military Service Act (hereinafter “instant provision”) provides that “A male who is a citizen of the Republic of Korea shall faithfully perform his duty of military service as prescribed by the Constitution and this Act,” which states that a male among the citizens of the Republic of Korea is liable for military service, and this means that he is eligible for a draft physical.

Meanwhile, the issue of whether a woman who is a national of the Republic of Korea bears the duty of military service is not directly prescribed in the Military Service Act, but the latter part of Article 3(1) of the former Military Service Act provides that “A woman may serve only on active duty through support.” In light of the opposite interpretation of the above provision that recognizes only the right to support active duty service, and a woman does not constitute a person liable

In other words, the legal provisions of this case set the person who bears the duty of military service among the duty of national defense as the "Korean male" and excluded women within the scope of the person liable for military service.

Although the “military service” and “military service” are not the same as the “military service” under the instant legal provisions, the obligation of military service is the subject of the duty of national defense.

In the process of embodying the duty of national defense through legislation, it is a matter of whether it is a discrimination that can be justified constitutionally to impose different duties on men and women, or whether it is an infringement of equal rights.

(2) Whether the legal provisions of this case violate the right of equality

(A) Criteria for review

In examining whether the right to equality is infringed or not, the degree of strict review, and the degree of relaxed review, would vary depending on the degree of legislative formation authority recognized by the legislature. In a case where the Constitution requires equality, or where a serious restriction on relevant fundamental rights is caused due to discriminatory treatment, legislative formation authority is reduced and more strict review methods should be applied (see Constitutional Court Decision 98HunMa363, Dec. 23, 1999; Supreme Court Decision 11-2, 770, 787).

1) Article 11(1) of the Constitution declares that “All citizens shall be equal in front of the law,” and further stipulates that “no person shall be discriminated against in any area of political, economic, social or cultural life on the basis of gender, religion or social status.”

The instant legal provision provides that the duty of military service shall be imposed differently on the basis of “gender,” and it is clear that the latter part of Article 11(1) of the Constitution is discrimination on the grounds of the example of the latter part of Article 11(1) of the Constitution. However, the foregoing provision, in the latter part of Article 11(1) of the Constitution, focuses on the prohibition of unreasonable discrimination, and does not restrict the legislative formation right recognized for the legislature by requiring the prohibition of absolute

Examining the case of “gender”, gender is a biological characteristic that is difficult for an individual to freely choose and change, and is not an element that affects the dignity and value of individual as human beings. Nevertheless, given that it has been justified as a representative cause of discrimination for a very long-term period of time, the Constitution of the Republic of Korea has reached an example of the grounds for prohibition of discrimination due to the substantial necessity to overcome unreasonable discrimination. However, such constitutional provision does not prohibit discrimination on the grounds of the difference between men and women, for instance, physical difference related to pregnancy or childbirth, etc., and it is difficult to conclude that discrimination by gender is a case requiring a strict review as a group of cases where there is a strong suspicion of unconstitutionality.

The Constitution of the Republic of Korea has separate provisions on the protection of gender equality (Articles 32(4) and 36(1)) with respect to the area where it is necessary to strictly control unreasonable discriminatory treatment by gender as a major part of human activities, such as “work”, “Marriage and Family Life,” and the Constitutional Court has applied the strict standard of review when the Constitution specifically demands gender equality. However, the legal provisions of this case cannot be deemed to fall under such standard of review.

2) The term “national security” is an essential premise for the national existence and territory, the protection of the lives and security of the people, and the fundamental premise for the exercise of freedom by all citizens. The duty of national defense is one of the important means adopted by the Constitution to realize the national security (see, e.g., Constitutional Court Decision 2004HunBa61, Oct. 28, 2004). In other words, Article 39(1) of the Constitution provides that “All citizens shall have the duty of national defense under the conditions as prescribed by Act” that “all citizens shall have the duty of national defense under the conditions as prescribed by Act,” and all citizens shall have the duty of national defense under the conditions as prescribed by Act to maintain the national independence from direct or indirect invasions by external hostile forces and to preserve the territory.

At present, the duty of national defense is embodied through various laws such as the Military Service Act and the Establishment of Homeland Reserve Forces Act, the Framework Act on Civil Defense, the Emergency Resources Management Act, the Requisition Act, and the Act on Disaster and Safety Management. It is recognized that the fundamental rights of the said person in performing the duty of national defense specified in the Military Service Act are restricted in various respects, but this is already planned by the provisions of the duty of national defense under the Constitution, and it cannot be said that the State or an individual has made a special sacrifice for the public interest (see Constitutional Court Decision 98HunMa363, Dec. 23, 1999; Supreme Court Decision 11-2, 770, 783, Dec. 23, 199).

3) Furthermore, the issue of determining the scope of persons subject to conscription is directly connected to national security, and the nature of the issue requires a consistent determination so that they can maintain optimal combat force by flexibly responding to rapidly changing domestic and foreign circumstances, etc. Therefore, in essence, the legislative formation right of legislators, etc. should be widely recognized (see Constitutional Court Decision 2002Hun-Ba45, Nov. 28, 2002; Supreme Court Decision 14-2, 704, 710).

Unless the purpose of pursuing the right of national defense at an international stage is to maintain the level of military force to the extent that it does not pose a risk. The appropriate scale of military force of a country is generally determined by the degree of military threat of that country, taking precedence over the degree of military threat of that country. Accordingly, in principle, whether certain persons are members of the national armed forces among the people who are obliged to perform the duty of national defense under the Constitution shall be determined by the legislators in accordance with the national security situation and financial capacity.

Taking into account various circumstances, such as history, the independence of the State;

지하고 영토를 보전함에 필요한 범위 내에서 결정할 사항인 것이다(헌재 1999. 2. 25. 97헌바3 , 판례집 11-1, 122;헌재 2002. 11. 28. 2002헌바45 , 판례집 14-2, 704, 709-710 참조).

4) Ultimately, in light of the fact that the legal provisions of this case particularly require equality or seriously restrict relevant fundamental rights, it is difficult to see that they are treated as discrimination in cases where the Constitution requires equality, and that the broad legislative formation right of legislators is recognized with respect to the determination of the scope of persons subject to conscription, whether the legal provisions of this case infringe on the right of equality or not shall be determined based on the degree of relaxed examination as to whether they violate the principle

(B) Determination

We examine whether the legal provision of this case is a standard for determining the scope of persons liable for military service and selecting "gender" is a discrimination without reasonable grounds.

1) In general, a male group seems to have different physical capabilities, such as having excellent male history, positive strength, etc. compared to that of a female, and a female is deemed to have excellent gender compared to that of a male. However, in relation to the physical capabilities requested in the performance of a combat, if we look at the physical capabilities requested, a man with excellent physical capabilities, such as the possession, operation, and movement of arms, can be said to have more physical capabilities than combat.

Of course, it is clear that there is a case where a female is judged for an individual rather than a male or female group, and there is a superior physical ability to combat compared with that of a male. However, considering that it is difficult to establish a detailed criteria for the physical ability applicable to an individual, and that there may be cases where a female is not faithfully engaged in the measurement of physical ability for the purpose of evading military service, it is difficult to establish a system for the examination to compare the physical ability of an individual with the numericalization and tolerance of the individual's physical ability more specifically.

In addition, even in cases of women with very physical capacity, there may be obstacles to training and combat-related performance for a period of one week per month in the border due to their biological characteristics. In particular, even if a woman with a temporary term of office is not currently pregnant, it is probable that it would be impossible to replace such women, as pregnancy, childbirth, and drinking after childbirth, regardless of the current pregnancy. In light of the need for hygiene and child care, it is almost impossible for a certain period of time after pregnancy or after childbirth to be pregnant or after childbirth. Furthermore, in cases of women who become prisoners of war in wartime, it is highly likely that they may be exposed to risks, including sexual abuse, compared to men, such as military operations.

Based on these differences in physical characteristics, it is difficult to view that legislators have determined only male as a person liable for military service who is subject to the draft physical in order to secure the optimal combat power.

2) On the other hand, the claimant asserts that it is arbitrary to exclude women, even though the physical ability does not significantly affect the active duty service, in addition to supplemental service.

However, the active service or the second citizen service is also a military force resource for national security.

In other words, it is difficult in light of our economic reality to cope with expenses incurred in maintaining and managing such forces in excess of the reasonable scale of military service, and excessive military service cannot be ruled out that the maintenance of military service is likely to stimulate military non-competitive competition, rather than to cause harm to national security, and that the spread and hedging of military culture may adversely affect the realization of freedom, equality, and peace. Therefore, the scale of ordinary military service should be maintained at a certain level and the number of active service should be restricted. However, it is also difficult to deny that it is necessary to secure and maintain preliminary power in preparation for any national emergency that may occur even at all times.

Accordingly, the Military Service Act is a preliminary military force that can be immediately transferred to military service at any time in a national emergency, so that military service is subject to military force mobilization or call-up in a national emergency such as wartime.

Ultimately, it cannot be deemed that certain physical capabilities or conditions as military personnel are not required because the supplemental service or the second citizen service has been discharged from military service at ordinary times. Therefore, the claimant's above assertion is groundless.

3) In addition, even from the perspective of comparative law, the legislation, such as the instant legal provision, cannot be seen as significantly arbitrary criteria. Among the 70 countries where the conscription exists, the countries imposing the duty of military service on women are extremely limited to some countries, such as Israel, and, even in the case of Israel, a representative country imposing the duty of military service on women, the service period of both men and women and the reasons for military objection are differently prescribed, and it is a reality that women’s combat unit work is proportional.

4) Other expenses incurred in economic costs that are difficult to estimated because of the lack of precedents of historical or comparative law to have facilities and management system premised on the equal military service between men and women.

It is difficult to say that there is no risk of harm to a crime such as sexual harassment in the military, or sexual tension between men and women, in the case of imposing a full-time military service on women under the current system of military organization and military camp, which is in conspiracy with male's centering around the military, it is difficult to say that there is no risk of harm to a sexual tension between men and women.

5) Ultimately, the legal provision of this case is a discrimination in which it is unreasonable to determine the scope of a person liable for military service on the basis of gender, and it cannot be deemed that it violates the principle of prohibition against self-regulation.

(3) Determination as to other claimant's assertion

The claimant asserts that the legal provision of this case infringes on the freedom of occupation, the freedom of residence, the freedom of learning, the right to pursue happiness, etc. due to the burden of military service. However, the claimant does not claim to specify the limitation of fundamental rights in relation to the performance of specific duties imposed differently according to the type of military service.

The formation of the duty of military service under the law shall not have any constitutional limit, and shall comply with the general principles of the Constitution, and the limit by the spirit of guaranteeing fundamental rights (see Constitutional Court Decision 97HunBa3, Feb. 25, 1999; Supreme Court Decision 11-1, 122, 130, Feb. 25, 199); however, the restriction of fundamental rights due to the imposition of the duty of military service itself, as asserted by the claimant, shall be inevitable to train and maintain skilled soldiers for national security, and to secure the ability to immediately respond to national emergencies, it shall be deemed that it goes beyond the limit by the spirit of guaranteeing fundamental rights and is in violation of the Constitution, and it shall be deemed that it violates the Constitution, and whether the imposition of the specific duty based on the individual military service disposition is excessive is not subject to the judgment of this case, and thus,

C. Concurring Opinion by Justice Kim Hhee-ok on the dismissal of the foregoing paragraph

B. We agree with the opinion that the legal provision of this case does not infringe the claimant's right to equality. However, I would like to express my concurrence with the following points in order to point out that in light of the significance of the duty of national defense under the Constitution, more serious legislative efforts should be made to improve the current law.

In Article 39 (1) of the Constitution of the Republic of Korea, the determination of the subject of the duty of national defense as all citizens is within the meaning of pursuing the integration of the national community by allowing all citizens to share the basic duty, which serves as the basis of the establishment of national existence, in principle.

However, unlike the duty of national defense under the current law, in principle, a man bears the duty of military service, including active duty and reserve, and a civil defense unit under the Framework Act on Civil Defense. However, women do not bear such duty. However, as men, they are merely obligated to cooperate under the Framework Act on Civil Defense, to submit the subject matter of requisition under the Requisition, and to train cases designated as priority-care resources under the Requisition (Article 3(2), Article 18 of the Framework Act on Civil Defense, Article 9(1) of the Requisition, Article 2(1), Article 11 of the Emergency Resources Management Act, and Article 2(1), and Article 11 of the Emergency Resources Management Act). It is true that there is a significant imbalance between men and women in terms of the content of the duty of military service. Meanwhile, even though there is a duty of military service under Article 39(2) of the Constitution to support discharged soldiers, the reason why men performing the duty of military service continues to suffer social and economic disadvantage even after discharge of their military service as well as military service life.

As such, in a situation where there is a limit to preserving disadvantages arising from the performance of military service by policy legislation, rather than the territory of national defense, in reality, if there is a method for a citizen who fails to perform the duty of military service, to support the performance of the duty of military service in another form and to preserve his disadvantage, this may indirectly serve as the content of the duty of national defense that contributes to the defense of the national territory, and even though it can be a method of reasonably allocating the duty of national defense that all citizens bear according to the aim of integration of the national community, the legislators are not neglected to take such consideration.

Meanwhile, while the duty of national defense under Article 39 of the Constitution is, in essence, embodied with broad legislative discretion premiseding on strategic consideration in preparation for crisis situations in the national community, the content of the duty of national defense, which is an exception to the Constitution centered on the basic rights security system, ought to be directly and indirectly related to the purpose of national defense. Therefore, the incorporation of social and public services, other than active duty service, into the content of the duty of military service, ought to be made to the extent that it maintains its relationship with the purpose of imposing the duty of military service, such as homeland defense, insofar as there are extenuating circumstances where it is inevitable to impose alternative service. In particular, it can be said that the legal provision of the instant case cannot be said to be significantly arbitrary to impose the duty of military service

(c)

However, it cannot be denied that the current legal system of the duty of military service, for example, is a broad alternative form of military service whose content is almost rarely unrelated to national defense in supplemental service, etc., and that the form of military service is diversified, and the external expansion is likely to be expanded. This tendency is likely to change the content of the duty of national defense into that the state can use the labor force without compensation in principle for other wide public purposes regardless of the purpose of national defense, regardless of the purpose of national defense. This is contrary to the constitutional system that exceptionally prescribes the duty of national defense.

In short, although the legal provision of this case does not infringe the claimant's right to equality in light of the strategic characteristics of legislative discretion with respect to the formation of the duty of national defense, it is insufficient to consider the duty of national defense that can exist in a form other than that of the military service under the current law, and the characteristic of the free use of the labor force of the people is gradually strengthened rather than in relation to the purpose of national defense in the contents of the duty of military service, in view of the exceptional nature of the mental and constitutional duty under Article 39 (1) of the Constitution that designates all citizens as the subject of the duty of national defense and promotes the integration of the national community, there is no problem. Therefore, in embodying the duty of national defense, the legislators need to make efforts to improve so that the alternative form of service outside active duty is limited to inevitable cases while maintaining the relationship with the original purpose of the duty of national defense, which is national defense, and that citizens who do not bear the duty of military service may support the performance of the duty of military service in any other form and contribute to the preservation of broad disadvantages caused by such performance

(d) Opinion by Justice Cho Jong-dae and Justice Kim Jong-tae;

We agree with the conclusion of the dismissal opinion under Paragraph (b) above that the legal provision of this case, which imposes the duty of military service only on male, does not violate the Constitution, but we agree with the following view as to the grounds for such view:

(1) As to the guarantee and restriction of the fundamental rights of the people, Article 10 through 37 of the Constitution of the Republic of Korea separately provides for the imposition of the basic duties in Articles 38 and 39 of the Constitution, and separately combines fundamental rights and basic duties to ensure the existence of the Constitution and the preservation and maintenance of the community. In light of such basic framework, one of the basic duties of the people is different from those of the Acts that restrict the fundamental rights of the people, and the two are different from those of the laws that impose the duty of national defense under Article 39 of the Constitution, so it is not necessary to discuss whether to excessively restrict individual fundamental rights. In examining the constitutionality of the duty of national defense, the imposition of the basic duty of national defense is legitimate in its purpose, and whether it is reasonable and fair in its imposition. In addition, in examining whether the imposition of the basic duty is rational and fair, it is not necessary for legislators to observe the constitutional value or principles that should be observed in imposing the relevant basic duty, namely, the principle of clarity, the principle of prohibition of delegation of legislation, and the principle of equality.

(2) The legal provisions of this case are related to the determination of the scope of persons eligible for conscription forming the military force of the armed forces, which is the ultimate mission of protecting the existence of the nation, which serves as the premise for guaranteeing fundamental rights and preserving the territory, from direct and indirect invasions by the external hostile forces. This issue is related to the duty of national defense to determine the specific members of the armed forces among the citizens who are responsible for the duty of national defense, and the purpose of the determination is directly connected with national security and financial capacity. The purpose of the determination is to ensure that the legislators are directly related to national security, and the nature of the determination is to ensure that they can maintain optimal combat power while flexibly responding to changing domestic and overseas circumstances, and that belongs to the broad legislative discretion area has already been recognized by the Korean Court (see, e.g., Constitutional Court Decision 202Hun-Ba45, Nov. 28, 2002; Supreme Court Decision 14-2, 704, 710, etc.). The basic purpose of the State’s duty of conscription is not required to maintain the State’s duty of conscription.

Thus, the issue is whether the contents of the legal provisions of this case, which are subject to compulsory conscription of the military and excludes women, are reflected faithfully in the principle of equality and the principle of respect for fundamental rights, and thus can be seen as the imposition of reasonable and justifiable duties. Legal opinions are as follows: (a) whether this is an infringement of the right to equality of applicants; and (b) whether it is reasonable to grasp whether it is a matter of infringement of the right to equality of applicants; and (c) whether it is subject to conscription only for men; (d)

This is merely a result of imposing a duty of national defense as a result of the imposition of a duty of national defense as a result of discrimination, that is, it is not a prior to examining whether the legislator imposed a duty of military service on a male only as the above is reasonable and equitable. This is because, regardless of whether the law that restricts fundamental rights goes through the constitutional review criteria, if the law that imposes a basic duty passes the above constitutional review criteria, it would be reasonable to say that the law that imposes a basic duty would be constitutional law without considering whether it would result in excessive restriction of fundamental rights or discrimination. Accordingly, it is reasonable to say that the provision of this case, which discriminates on a male and female, is constitutional since it does not infringe the right of equality because it does not infringe on the right because it is not a arbitrary discrimination," and it would be reasonable to say that the law that imposes a duty of national defense only on South and female persons, as it appears in the rational and fair purpose of imposing a duty of national defense on them.

(3) From this point of view, examining whether the duty imposed under the instant legal provision is reasonable and fair in its content.

(A) First of all, considering the fact that the national security and the defense of the homeland is a new mission of the armed forces (Article 5(2) of the Constitution of the Republic of Korea). In light of the fact that the legislative purpose of the legal provision of this case is to form the direct military force of the armed forces above, rather than the different legislative purpose, whether or not the legal provision of this case is rational and fair or not should be examined under the relation with the above legislative purpose. In other words, whether or not the legal provision of this case is rational and fair should not be examined under the relation with the above legislative purpose. In other words, whether or not a woman should be incorporated into a military service subject to conscription or not, and if a woman is incorporated into a military service subject to enrollment, what method should be incorporated into the whole defense force design for securing the optimal combat force of the armed forces for the purpose of national security, it is not an issue of approaching the fundamental right guarantee of the individual of men from the perspective of guaranteeing fundamental rights without arbitrary discrimination between men and women. Therefore, it is unnecessary to deem that it is unnecessary to impose a duty of national defense from the point of view.

(B) As to the imposition of the duty of national defense against women, our legal system currently excludes women subject to conscription except for those who serve in active duty as officers, warrant officers, noncommissioned officers, and officer candidates (the latter part of Article 3(1) of the Military Service Act), or become reserve forces or civil defense members by volunteering (Article 3(1) of the Establishment of Homeland Reserve Forces Act, and Article 18(2) of the Framework Act on Civil Defense). Accordingly, as a general woman not admitted by volunteering, no duty of military service is imposed except for the duty of cooperation under the Framework Act on Civil Defense or the duty of basic national defense to be borne by general citizens, such as the duty of national defense to submit requisition under the Requisition Act.

(C) With regard to the physical capabilities requested by the military forces in the performance of combat action, men have relatively physical capabilities suitable for combat action since they are superior groups with the ability to possess and move arms, compared to women. On the other hand, women’s physical changes, such as daily physiological circulation, or special physical changes, such as pregnancy, childbirth, and breast-feeding, may occur in time of emergency, i.e., being immediately mobilized into combat action and to maintain the optimal military force. In times of war, there is no choice but to be vulnerable to various risks compared to men. Even in time of war, concerns of crimes or ruptures arising from sexual tensions by using the power relationship of the upper and upper clothes inside the military forces cannot be ruled out. At present, it is also because there is no concern that the military forces entering into force by the Ministry of National Defense, with the support of the Ministry of National Defense, whose main duty is a terrestrial battle combat action, or special operations or duties, or the demand for the physical conditions related to the duties and positions of the majority forces, which reflect the above inappropriate reasons.

Therefore, considering the physical characteristics of women as above, the legislators of the legal provisions of this case determined that it is reasonable to determine only men to be subject to compulsory conscription in order to secure optimal combat resources. In light of the legislative purpose of imposing the duty of national defense that the nation should always maintain the optimal combat power for national security, in particular, considering the national defense security reality of the Republic of Korea that the possibility of armed conflict between the two Koreas and the two Koreas still exists, it cannot be deemed reasonable and fair in light of the legislative purpose of imposing the duty of national defense that the nation ought to keep the optimal combat power at all times.

In the case of women, there may be many exceptional cases where men are not incapable of being able to provide physical or combat power. However, national defense under the legal provisions of this case may be limited to the defense under the legal provisions of this case.

Since the imposition of obligations takes into account the overall characteristics of the group of women, i.e., securing optimal combat forces, it cannot be said that the imposition of such obligations is unreasonable or unfair on the ground that it did not separately evaluate the individual ability of women. As seen earlier, in examining the validity of the imposition of the duty of national defense, it is necessary to approach the whole design rather than personal or individual consideration that is mainly at issue in terms of guaranteeing fundamental rights.

(D) As asserted by the claimant, even if the legal provision of this case is deemed to be a provision on the imposition of military service, including not only the duty to immediately form a fighting force but also indirect military power formation and various forms of alternative military service, the conclusion that the imposition of the duty under the legal provision of this case is reasonable does not change.

On the contrary, it is difficult to view that there is a compelling reason to incorporate women into military service resources in order to ensure the mechanical equity in the absence of any special demand or management plan for women’s alternative military service personnel. Therefore, not only the efficient utilization of national defense manpower, but also the financial situation of the whole country, and the efficient allocation of resources. Therefore, even if it is deemed that there is an inevitable reason to incorporate them into military service resources in order to effectively utilize and distribute the national national defense budget or the national human resources, but also to secure optimal combat power, it is difficult to view that there is an inevitable reason to incorporate them into military service resources.

(E) Therefore, the provision imposing obligations under the legal provisions of this case is reasonable and fair, provided that the duty of military service is imposed uniformly only on men and women, and the duty is not imposed on women, taking into account the physical characteristics required for the Republic of Korea to form the state security situation, the real financial capacity of the State, the demand and role of the defense manpower and organization, and the functional differences in social roles of both men and women.

(4) Ultimately, the imposition of the duty of national defense under the legal provision of this case is for the sake of national defense, and its purpose is not only justifiable, but also is reasonable and fair, which does not go against the principle of equality under the Constitution and the principle of respect for fundamental rights, and thus satisfying the constitutional review criteria that should be observed in imposing the duty of national defense. Therefore, as long as the duty of national defense is imposed constitutional under the legal provision of this case, the limitation of the right of national defense, the right of equality, the freedom of occupation, the freedom of residence, and all other fundamental rights incidental to the claimant, should only be limited without the need to examine the contents and nature of the right

5. Conclusion

Therefore, the appeal against Article 8(1) of the former Military Service Act is dismissed as it is unlawful, and the appeal against the main sentence of Article 3(1) of the former Military Service Act is dismissed as it is so decided as per Disposition. This decision is based on the assent of all participating Justices, except for the case where there is a dissenting opinion on the judgment on the main sentence of Article 3(1) of the former Military Service Act, a dissenting opinion on the unconstitutionality of the Justice, a dissenting opinion on the judgment as to the judgment on the main sentence of Article 3(1) of the former Military Service Act,

6. Opinions held as unconstitutional on the merits of judges and vice versa;

We hold that the legal provision of this case is differentiated from men and women without reasonable cause in performing the duty of national defense, and therefore, express our unconstitutional opinion as follows.

A. The duty of national defense under the Constitution

Article 39 (1) of the Constitution of the Republic of Korea provides that "All citizens shall have the duty of national defense under the conditions as prescribed by Act," and stipulates that not only men but women shall be the subjects of national defense.

국방의 의무는 외부 적대세력의 직ㆍ간접적인 침략행위로부터 국가의 독립을 유지하고 영토를 보전하기 위한 의무로서, 현대전이 고도의 과학기술과 정보를 요구하고 국민전체의 협력을 필요로 하는 이른바 총력전인 점에 비추어 ① 단지 병역법에 의하여 군복무에 임하는 등의 직접적인 병력형성의무만을 가리키는 것이 아니라, ② 병역법, 향토예비군설치법, 민방위기본법, 비상대비자원관리법 등에 의한 간접적인 병력형성의무 및 ③ 병력형성이후 군작전명령에 복종하고 협력하여야 할 의무도 포함하는 개념이다(헌재 1995. 12. 28. 91헌마80 , 판례집 7-2, 851;헌재 2002. 11. 28. 2002헌바45 , 판례집 14-2, 704, 710).

Accordingly, all citizens shall bear the duty of national defense as prescribed by law, and in this case there may be discrimination due to the objective situation of each individual, such as gender, physical condition, and academic background, but in order to prevent such discrimination from infringing the right of equality guaranteed by the Constitution, there should be reasonable grounds to justify such discrimination.

(b) Legal obligations that specify the duty of national defense;

Current national defense obligations are the Military Service Act, Establishment of Reserve Forces, and Civil Service Act.

The Framework Act on Defense, the Emergency Resources Management Act, the Requisition Act, the Framework Act on the Management of Disasters and Safety, etc. are embodied through various Acts, and the duty of national defense of men and women specifically formed by the above individual Acts shall be as follows:

(1) The duty of national defense borne by men

(A) A male who is a national of the Republic of Korea shall first bear the duty of military service under the Military Service Act, i.e., Article 3(1) of the same Act. According to the Military Service Act, a male shall be assigned to the first citizen service upon the age of 18 (Article 8), and a male shall be assigned to the second citizen service upon the age of 19 (Articles 11 and 14), and a military service shall be assigned to active service or supplemental service according to the results of a military service disposition, or transferred to the second citizen service, or exempted from the duty of military service. A male who completes his active service shall be assigned to the reserve service (Article 5(1)), and a person who is subject to a call for military force mobilization (Article 44), and a person who is not subject to a call for military service mobilization and a second citizen service shall be assigned to the second citizen service

(B) A person who completed active and supplemental service under the Military Service Act shall again become the homeland reserve forces under the Establishment of Homeland Reserve Forces Act for eight years (Article 3) and shall be subject to mobilization and training (Articles 5 and 6).

(C) Meanwhile, a male who is a national of the Republic of Korea under the Framework Act on Civil Defense shall cooperate in civil defense policies (Article 3) and shall be organized as a civil defense unit except where he/she is engaged in a specific job area such as a soldier from January 1 to December 31 of the year in which he/she reaches 40 years of age (Article 18).

(D) Other obligations to submit requisitioned objects under the Requisition (Article 9), the duty to cooperate under the Framework Act on the Management of Disasters and Safety (Article 5) and the duty under the Emergency Resources Management Act shall be borne.

(2) The duty of national defense borne by women

(A) A woman who is a national of the Republic of Korea is exempt from military service. However, it is possible to serve on active duty by volunteering (the latter part of Article 3(1) of the Military Service Act), but is not a matter of duty

(B) A woman who is a national of the Republic of Korea shall not be a homeland reserve force. However, it is possible to become a reserve force by volunteering (Article 3), but this is irrelevant to the duty of military service.

(C) Meanwhile, a woman who is a national of the Republic of Korea under the Framework Act on Civil Defense bears the duty of cooperation on civil defense policies like a male, but is not obligated as a civil defense unit, and can also become a civil defense unit through support (Articles 3 and 18).

(d) In respect of other obligations under the Requisition Act, the Framework Act on the Management of Disasters and Safety, and Emergency Resources Management Act, the same shall apply to male.

(3) Occurrence of discrimination

In the end, there is discrimination between men and women on the burden of national defense under the Military Service Act, the Establishment of Establishment of Homeland Reserve Forces Act and the Framework Act on Civil Defense.

C. Whether discrimination is reasonable

(1) Criteria for review

The issue of whether the legal provision of this case infringes on the right to equality is sufficient to determine whether the provision of this case violated the principle of prohibition of arbitrary punishment according to the relaxed standard of review as decided by the majority of rejection opinions. Therefore, it is to examine whether there are reasonable grounds for such discrimination against men and women.

(2) Determination

(A) The fact that men and women have a different physical structure and physical strength as a whole, and that the role of the State and society should differ from each other cannot be denied. As such, discrimination handling due to the performance of national defense duty should be naturally acceptable.

However, the content of the military service under the Military Service Act itself directly related to physical conditions or ability is limited to active duty service (including secondment under Articles 24 and 25 of the Military Service Act) and to full-time reserve service and onboard ship reserve service (Articles 21 through 23-5). In other words, in principle, life within a military unit as a matter of principle for a certain period of time (a person may reside outside a military unit upon permission of the Minister of National Defense in cases of full-time reserve service) and maintaining physical strength for combat after undergoing military training in preparation for war is merely active duty service and the aforementioned reserve service

Supplemental service is limited to the duty to serve for a certain period of time, and is not residing in a military unit, and is in charge of the support of administrative affairs, etc. necessary for social service duties or public interest, the promotion of culture and the enhancement of national prestige, the work in the field of art and sports, the economic, social and cultural development of developing countries, etc., or most of them are serving as public health doctors, public-service advocates, expert research personnel, etc. In addition, there is no substantial relation with the physical strength of men, which is the characteristics of men in most cases. In addition, there is no room for the second citizen service to consider the inherent physical characteristics

On the other hand, in time of war, incident, or national emergency corresponding thereto, part of supplemental service is subject to a call for military force mobilization for the formation of military units or demand for military operations, and the remaining supplemental service and the second citizen service are subject to a call for wartime labor to support military affairs, but the duty to comply with such duty is merely a duty to obey and cooperate with a military operation order.

In the event of an emergency, the person entitled to mobilization and call-up of a person among the persons subject to the mobilization and call-up for military force mobilization is selected by taking into account the situation of supply and demand of necessary human resources at the time of the call-up and the physical conditions or aptitudes of the persons subject to the call-up. Therefore, it is difficult to view that the person entitled to mobilization and call-up bears the duty to obey and

Therefore, even when considering the physical disability between men and women and the difference in their social roles, imposing only all the national defense obligations under the Military Service Act to men under the instant legal provisions cannot be deemed to reasonably discriminate against men and women in the burden of national defense obligations as stipulated under the Constitution. This appears to be a discrimination based on the fact or concept that the living relationship between men and women has been formed in a certain form in the past, and discrimination based on the fixed concept of such gender is not allowed (see Constitutional Court Decision 2001Hun-Ga9, Feb. 3, 2005; Supreme Court Decision 17-1, 19, Feb. 3, 2005).

(B) On the other hand, in order to alleviate the unfairness of the above discrimination, there is an institutional device that relieves restrictions on fundamental rights due to the performance of military service or compensates losses due to such restrictions by respecting the purport of Article 39(2) of the Constitution, which provides that “any person shall not be disadvantageously treated due to the performance of military service”, and shall be provided with complementary devices that ensure that the burden of national defense due to gender can be balanced by considering the overall burden of national defense

However, as seen earlier, it is difficult to recognize that many laws that embody the present duty of national defense impose most of the obligations on men and women, and that women make an excessive support so that the distribution of the duty of national defense is balanced as a whole. Furthermore, there is no institutional system that mitigates the restriction of fundamental rights due to the performance of the duty of military service on men or compensates for losses and contributions arising from such restriction (no theory is room for the importance of the national and social role due to women's pregnancy and childbirth, but the problem that the State should prepare measures to compensate for losses and contributions arising therefrom should be conducted separately from the problem of the duty of military service).

D. Sub-determination

Ultimately, imposing the duty of military service only on a male who is a citizen of the Republic of Korea, is arbitrarily distributed the duty of national defense under the Constitution without reasonable grounds, and thus, it violates the Constitution as it infringes on the equal rights of men.

7. Opinions dismissing the Justices’ public-private partnership;

A petitioner's petition for adjudication on the legal provisions of this case shall be dismissed as follows, since it is inappropriate to recognize the possibility of infringement of fundamental rights, self-relatedness, or interest in a petition for adjudication.

A. Purport of the instant petition for adjudication

The claimant claims the constitutional complaint of this case to confirm the constitutionality of the provision of this case, which imposes the duty of military service only on the male, violates his right to equality and the freedom of residence, etc., and the purport of the claim is not to impose the duty of military service like the female, but to impose the duty of military service like the male for the female, so it is clear that there is a possibility of infringement of the fundamental right, or there is a possibility of infringement of the right to self-relatedness or the benefit of the request for a trial.

B. Infringement of equal rights

(1) 기본권에 대한 침해적인 법률에 있어서는 수범자가 당사자로서 자신의 기본권이 침해되었음을 주장하게 되나, 그 반대로 수혜적인 법률의 경우에는 수혜범위에서 제외된 자가 자신이 평등원칙에 반하여 그 대상에서 제외되었다는 주장을 하는 것이 보통이고(헌재 2001. 11. 29. 99헌마494 , 판례집 13-2, 714, 723;헌재 2003. 6. 26. 2002헌마312 , 판례집 15-1, 765, 770 등 참조), 그와 같은 경우 상대방 비교집단에게 혜택을 부여하는 법률이 헌법에 위반된다고 선언되어 그러한 혜택이 제거됨으로써 비교집단과의 관계에서 자신의 법적 지위가 상대적으로 향상된다고 볼 여지가 있다면, 그 법률을 직접 적용받는 자가 아니라 하더라도 자기관련성을 인정할 수 있다(헌재 1999. 12. 23. 98헌마363 , 판례집 11-2, 770, 780;헌재 2001. 11. 29. 2000헌마84 , 판례집 13-2, 750, 756;헌재 2010. 4. 29. 2009헌마340 , 공보 163, 917, 919-920 등 참조).

In addition, in such a case, in order to recognize the claim for a trial and the relationship between the two compared groups, ① granting benefits to any one group in competition at the same time shall be the relation which means the disadvantage to any other compared groups, ② where benefits to the compared group in competition are removed by declaring that the provisions of the mutually advantageous law are in violation of the Constitution, there is a possibility that the legal status would be relatively improved by affecting the fundamental rights, rights, and obligations of the persons belonging to another compared group. ③ Other than the size of the compared group that receives benefits, the legal nature of the benefits or relationship in the relevant case, the intrinsic nature of the compared group, the degree of the correlation between the two compared groups, etc. should be comprehensively taken into account.

In addition, such a legal principle also applies to cases where the beneficiary receives passive benefits, such as receiving social security benefits from the State, as well as being exempt from public burden or duties, such as taxes and charges, etc.

(2) However, considering the current characteristics and contents of military service, and the intrinsic and intrinsic differences between men and women, there is a difficult aspect for women to completely replace the military service that they perform, and the problem of selecting the contents, scope, and subject of military service has high level of policy, technical, or political character. Thus, even if the military service is acknowledged for women, it is difficult to readily conclude that the military service system or the military personnel system will be changed to the direction favorable for men.

In particular, when considering the military service period, even if the total number of military personnel increases as well as male, determination of the service period is not simply dependent on the supply of and demand for military personnel, but ultimately, it is a matter that should be decided qualitatively in terms of policy and military science rather than on the need for the maintenance and strengthening of military combat forces or the level of demand for skilled soldiers following changes in the security situation. Even if a quantitative effect takes place, such benefit is merely nothing more than a de facto or reflect interest arising from the modification of the military service system or military policy, and it is difficult to view it as a benefit or legal interest that is legally protected.

(3) Ultimately, even if it is declared that the legal provision of this case violates the Constitution, it is difficult to view that the previous women have removed benefits that they did not bear the duty of military service, and that they have a direct and intrinsic influence on the content, scope, etc. of the duty of military service, such as the claimant, and further, the relative benefits in the duty of military service, which women enjoy by the decision, may not be expanded to the same male as the claimant.

Therefore, it is difficult to see that the legal provision of this case is likely to infringe on the claimant's fundamental rights, i.e., the right to equality. Even if the possibility of infringement on the basic rights is recognized, it is difficult to see that the situation of infringement on such fundamental rights is restored due to the decision of unconstitutionality of the legal provision of this case, or that it would bring about the improvement of legal effect or status favorable to the claimant

C. Sub-decision

Therefore, the petitioner's request for a trial against the legal provision of this case is unlawful, and thus, it should be dismissed.

Judges

Justices Lee Han-tae (Presiding Justice) Haak-gu (Presiding Justice)