[2] Meaning of “collective action for activities other than military service” prohibited under Article 13(1) of the former Military Service Rule, and method of determining whether the act constitutes an exercise of a soldier’s fundamental right

1. Regarding ground of appeal No. 1

A. The Constitution guarantees the right to a trial as one of the fundamental rights (Article 27(1) of the Constitution), and the fundamental rights may be restricted by law only in cases where it is necessary for national security, etc. (Article 37(2) of the Constitution). Therefore, if disciplinary action against a soldier is based on the ground that he/she exercised the right to a trial, there must be a legal basis to restrict the exercise of such right to a trial. In addition, given that disciplinary action against a soldier is followed by a disadvantage that is not criminal punishment, such legal provisions must be followed, to the extent that they can determine their actions by forecasting in advance what is prohibited and what is permitted by the person having an authority to take an action and by predicting it in advance. However, it is not permissible to regard it as a mandatory norm that serves as the basis for disciplinary action.

B. The former Military Service Rule (amended by Presidential Decree No. 21750, Sept. 29, 2009; hereinafter “Military Service Rule”) was established upon delegation by Article 47-2 of the Military Personnel Management Act to provide for the basic matters concerning the military service and other military life. Accordingly, if a military is beneficial or justifiable to the military, a proposal may be made to his superior according to the chain of command (Article 24(1) of the Military Service Rule). In a case where a soldier is deemed to be in an unfair treatment, inconvenience, or disadvantage, or disadvantage, he/she may request consultation, proposal, or grievance review according to the chain of command (Article 25(1) of the Military Service Rule).

However, it goes beyond the ordinary meaning of the language and text to interpret it as a provision that imposes a duty to make a proposal or a grievance review on a soldier.

Furthermore, in light of the language and structure of the relevant statutes, the purport of the proposal system is to ensure the legality and feasibility of the order by allowing a superior officer to present his opinion on the mistake or error of a person holding the order before the execution of the order, and it is difficult to deem that it has the meaning as a prior procedure in the military, which must undergo prior to the exercise of a soldier’s right to trial.

In addition, Article 25(4) of the Military Service Rule provides that “A soldier shall not request a resolution of grievances related to military service to the outside of the military through petition, collective signature, or other means that are not prescribed by law.” This imposes a soldier’s duty not to resolve grievances, such as disadvantageous disposition related to military service, through “other means that are not prescribed by law.” On the contrary, the interpretation means that a soldier must resolve matters related to military service by means of “the method prescribed by law”. Moreover, there is no room to suspect that the method is the representative of the method prescribed by law, including a constitutional complaint claim.

C. Nevertheless, the court below held that the filing of the instant constitutional complaint to the Constitutional Court, which is an outside institution of the military, is a violation of Articles 4 and 24(1) of the Military Service Rule, on the premise that, even if there is a different opinion on a superior’s instruction or order, making a proposal to his superior through the chain of command, and requesting a resolution outside the military without going through such chain of command, barring any special circumstances. The court below held that the filing of the instant constitutional complaint to the Constitutional Court, which is an outside institution of the military, without making considerable efforts to make discussions and correction as to the unconstitutionality of the instant order before filing the constitutional complaint constitutes a violation of Articles 4 and 2

D. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of grounds for disciplinary action under the Military Personnel Management Act, thereby adversely affecting the conclusion of judgment. The allegation contained in the grounds

2. Regarding ground of appeal No. 2

A. Article 13(1) of the Military Service Rule provides that “A soldier shall not engage in collective action for any purpose other than military service.” Here, “collective action for any purpose other than military service” refers to a group of soldiers with a specific purpose that undermines the essence of military service, such as undermining military discipline or violating this part of military service (see Supreme Court Decision 90Nu4839 delivered on April 23, 191, etc.).

Unless prescribed under the statutes prohibiting or restricting a soldier’s exercise of his/her fundamental rights, in order to establish a specific purpose undermining the essence of military service, such as undermining the discipline of military service as a soldier or violating this part of the military service, the actual exercise of his/her rights should be denied and specific and objective circumstances sufficient to regard it as a violation of the norm should be recognized. In other words, the exercise of the rights permitted as a soldier should not be readily determined as a collective act.

B. According to the record, at the time, the Plaintiffs are deemed to have filed the instant constitutional complaint with the Constitutional Court’s decision, which is the method prescribed by law, regarding the unconstitutionality of the instant order, and there is no other evidence to deem that there was any other purpose or intent.

Although the instant order was made based on the information that the Korean Federation of Korean University Students Association promoted a campaign to send cultural books to the military soldiers in order to strengthen anti-government and anti-U.S.-style projects, it does not seem that the constitutional complaint filed by the Plaintiff et al. was likely to cause serious damage to the internal command and order system of the military.

Therefore, the act of filing a constitutional complaint jointly by the plaintiffs who are military advocates shall not be deemed as a collective act for a specific purpose that undermines the essence of military service, such as undermining military discipline or violating this portion.

C. Nevertheless, the lower court determined that the Plaintiffs violated their duty to obey through collective action prohibited under Article 13(1) of the Military Service Rule. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of grounds for disciplinary action under the Military Personnel Management Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds for appeal on

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)