6. Imposition of Duties of Military Service only on Men

[22-2(B) KCCR 446, 2006Hun-Ma328, November 25, 2010]

Questions Presented

1.Whether the statute of limitation on a constitutional claim filed by the complainant of the instant case with this Court, arguing that Article 8 Section 1 of the former Military Service Act (revised by Act No. 3696 on December 31, 1983, before revised by Act No. 9754 on June 9, 2009) which forces every man who is a national of the Republic of Korea to be enlisted into the first military service from the age of 18 is unconstitutional, has expired or not. (positive)

2.Whether the first part of Article 3 Section 1 of the former Military Service Act (hereinafter the "Instant Provision"), when it imposes the duties of military service only on men, infringes on their right to equality. (negative)

Summary of Decisions

1.The one year filing time limit of the complainant's constitutional complaint over Article 8 Section 1 of the former Military Service has expired because he was enlisted into the first military service one year before that filing when he had attained 18 years of age on the first day of January of that year in accordance with Article 8 Section 1 and Article 2 Section 2 of the former Military Service.

2.(1) Majority Opinion (Denial): Justice Lee Kang-kook, Justice Kim Hee-ok, Justice Lee Dong-heub, and Justice Song Doo-hwan

The standard of review applied to the decision as to whether the Instant Provision infringes on the complainant's right to equality shall be a relaxed one such as rational basis test on the grounds that: it is hard to consider that the Instant Provision fosters a discrimination which either causes a grave infringement on relevant basic rights or

restricts on gender equality in the area that the Constitution particularly enumerated; and the legislature has broad policy-making power in classifying those who subject to the draft.

The legislation that mandates only men to serve in the military and consequently be subject to physical examinations for conscription does not appear to be excessively arbitrary because: men as a group are physically more fit to be combat soldiers than women as a group are; in reality, it is difficult for the government to have a system for physical examination which is capable of comparing the citizens based on each individual's physical ability; women with excellent physical capabilities. On the other hands, it can hardly to be considered arbitrary when the compulsory military service like a service as a member of reserve troop is not imposed on women because those in the replacement service or in the second militia service, as those who could be immediately called into the troops in a national emergency for a reserve military strength, are also required to have a certain amount of physical ability. The Instant Provision, which chooses those who are subject to the draft based on their gender, consequently, does not violate the rule against arbitrariness and therefore does not infringes on the complainant's right to equality. Therefore, this complaint shall be denied.

(2) Concurring Opinion of Justice Kim Hee-ok

The legislature must make a sincere effort to improve the draft system where: the alternative service shall be imposed only when it is necessary for the purpose of national defense, which is the original purpose of military duty; the original purpose of military duty; and the citizens without military duties are required to support the fulfillment of military service duty. However, the legislature will exercise its broad policy-making power in setting forth the details of the replacement military service.

(3)Concurring Opinion of Justice Cho Dae-hyen and Justice Kim Jong-dae

The Instant Provision is about the imposition of the duty of national defense, the duty of mandatory military service, and therefore this Court's review on that provision does not need to deal with the excessive infringement on basic rights. Rather, this Court is just required to determine whether the imposition of that mandatory duty has a legitimate goal or whether the contents of that imposition are reasonable and fair. In this regard the Instant Provision in its imposition of basic duties on citizens satisfies the constitutional requirements of reasonableness and justification considering its aim to secure the best combat capabilities for national defense, the reality of national security of Korea, and physical characteristics of women.

Separate Opinion (Unconstitutional): Justice Lee, Kong-hyun and Justice Mok Young-joon

Every citizen has a duty of national defense under the Constitution and the different treatment based on physical differences between men and women shall be allowed. The Military Service Act, however, discriminates against men in favor of women without any reasonable ground because it imposes the military duties only on men even though contents of those duties are not directly related to physical conditions or physical abilities. In addition, currently, we do not have any institutional system to alleviate that unreasonable discrimination. For these reasons, the Instant Provision in its arbitrary allocation of military duties infringes on men's right to equality and therefore is unconstitutional.

Separate Opinion (Dismissal): Justice Min Hyeong-ki

Even when the Court declares the Instant Provision to be unconstitutional, it would not have any direct or material influence on men such the complainant in their contents or scope of their military service duties but only remove the benefits, such as exemption from military service of women. I, accordingly, do not find that there is a possibility which the basic right of the complainant, the right to equality, will be infringed by the Instant Provision and therefore it is difficult to find that the declaration of unconstitutionality of the Instant

Provision would bring either a remedy to such infringement or legal effect in favor of the complainant or improvement of his legal status. I conclude that the complaint over the Instant Provision shall be dismissed due to lack of standing because the requirement of self-relatedness or justiciable interest is not satisfied.

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Parties

ComplainantKim, O-Hoon

Represented by Chae Hyeong-seok

Court Appointed Attorney

Respondent

President

Holding

1.The complaint over Article 8 Section 1 of the former Military Service Act is dismissed.

2.The complaint over the first part of Article 3 Section 1 of the former Military Service Act is denied.

Reasoning

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

1.Complainant, as a male born on August 13, 1981, applied for KATUSA(Korean Augmentation Troops to the United States Army) on

October 1, 2005 and received an email notice of military duty from the Military Manpower Administration on December 3, 2005. and then joined the KATUSA on March 13, 2006.

2.On March 10, 2006, complainant filed this constitutional complaint. He claims that Article 3 Section 1 and Article 8 Section 1 of the former Military Service Act, when they impose the duties of military service only on men infringe their rights to equality and therefore violate the Constitution.

B. Subject Matter of Review

While the complainant, as a male, claims that the entire parts of Article 3 Section 1 and Article 8 Section 1 of the former Military Service Act are unconstitutional, the second part of Article 3 Section 1 of the former Military Service Act stipulates about women's military service. It is evident, accordingly, that, as for that second part of Article 3 Section 1 of the former Military Service Act, the self-relatedness element of requirements to file a constitutional complaint is not met.

For this reason, we will limit the subject matter of instant case to Article 8 Section 1 and the first part of Article 3 Section 1 of the former Military Service Act and the texts of these provisions are as follows;

[Subject Provisions of Review]

The former Military Service Act (revised by Act No. 3696 on December 31, 1983, before revised by Act No. 9754 on June 9, 2009)

Article 3 (Duties of Military Service)

(1)Any man who is a national of the Republic of Korea, shall faithfully perform military service under the conditions as prescribed by the Constitution of the Republic of Korea and this Act. Any woman may perform only active service by application.

Article 8 (Enlistment in First Militia Service)

(1)Every man who is a national of the Republic of Korea shall be enlisted into the first militia service when he attains eighteen years of

age.

[Relevant Provisions]

The former Military Service Act (before revised by Act No. 9754 on June 9, 2009)

Article 1 (Purpose)

(1)The purpose of this Act is to prescribe matters concerning the military service of nationals of the Republic of Korea.

Article 3 (Duties of Military Service)

(2)Except as provided by this Act, no special exception to the military service may be prescribed.

(3)In performing the duty of military service under Section 1 of this Article, no person shall be discriminated based on race or color, etc.

(4)No person who is under obligation to serve in the military but is sentenced to imprisonment with or without prison labor for six or more years, may perform military service, and his name shall be removed from the military register.

Article 5 (Categories of Military Service)

(1)The military service shall be classified into active, reserve, replacement, the first militia and the second militia services as follows.

1.Active service: Service rendered by men enlisted in the army by conscription or application, and by officers, warrant officers, assistant officers, and military cadets appointed to active under this Act or the Military Personnel Management Act;

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

3.Replacement service: Service rendered by those who are judged capable of being in active service as a result of the draft physical, but not determined as those to be enlisted in active service due to the circumstances of the supply and demand of the armed forces, and by those who are in service or compulsory service as public interest service personnel, public health doctors, the doctors in exclusive charge of draft physical, international cooperation doctors, public-service advocates, public-service veterinarians, technical research

personnel or skilled industrial personnel, or have completed such service or compulsory service, and by those transferred to replacement service under this Act;

4.First militia service: Service rendered by those who are under obligation to serve in the military, but are not in active, reserve, replacement or second militia service; and

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

II. Arguments of the Complainant

A.Even though Article 39 of the Constitution states that "all citizens shall have the duty of national defense under the conditions as prescribed by Act", the Instant Provision imposes the duties of military service only on men and exempts women from the same duties, which treats differently between men and women. Article 11 Section 1 of the Constitution, on the contrary, prohibits discrimination based on gender and requires equality between genders in particular. For these reasons, strict standard of review shall be applied to that different treatment based on sex. In addition, the Instant Provision imposes the military service duties only on men and exempts women from the same duties although there are various means including maintaining the national defense to achieve the legislative goals other than such unconditional complete exemption women from those duties. This amounts to a violation of the principle of non-excessive restrictions and therefore infringes on the complainant's right to equality.

B.Besides, the Instant Provision also infringes on the complainant's freedom of occupation, freedom of residence, freedom of learning, and right to pursue happiness because, during the service period: the Instant Provision does not allow the complainant to have other occupations; it forces him to live in designated military accommodation; and it makes him to discontinue his studies.

III.Whether the complaint over Article 8 Section 1 of the former Military Service Act satisfies the standing requirements, the requirement to file a complaint with the Court

A constitutional complaint under Article 68 (1) of the Constitutional Court Act shall be filed within ninety days after the existence of the cause is known, and within one year after the cause occurs (Article 69(1) of the Constitutional Court Act). Thus, in the instance where a constitutional complaint for adjudication on a statute is filed and a basic right becomes infringed on the exact date of execution of that statute, that complaint shall be filed within 90 days from the date when the complainant knows that execution and within one year after the execution occurs. On the other hands, in the case where a basic right is infringed by the application of the statute after the execution of a statute, a constitutional complaint shall be filed within 90 days from the date when the complainant knows that the cause occurred and within 1 year after that cause occurred (See, 19-1 KCCG 118, 131, 2003Hun-Ma428, February 22, 2007).

In the instant case, however, the complaint who was born in August 13, 1981 was enlisted in first militia service on January 1, 1999 under Article 8 Section1 and Article 2 Section 2 of the former Military Service Act and therefore we must consider the time when the cause of infringement on his basic right by Article 8 Section1 of the former Military Service occurs to be January 1, 1999. Thus, among the complaints in this instant case, the complaint over Article 8 Section 1 of the former Military Service Act shall be dismissed because its filing was made after the time limit of filing has already expired.

IV. Review on Merits

A. Current system of military service law

Considering that the purpose of current Military Service Act is to prescribe matters concerning the military service of nationals of the Republic of Korea (Article 1), and, except as provided by that Act,

no special exception to the military service may be prescribed (Article 3), the Military Service Act can be deemed as a basic law on the military service duty.

Current military service duties consist of active service, reserve service, replacement service, first militia service, and second militia service (Article 5) and every man who is a national of the Republic of Korea shall be enlisted into the first militia service when he attains eighteen years of age (Article 8 of Military Service Act or Article 8 Section 1 of the former Military Service Act). Except for the exemption from military service or transfer to the second militia service without any conscription examination in certain cases (Article 64), any person under the obligation of military service shall undergo the draft physical, which consists of physical examination and psychological test, in the year when he turns 19 years old and thereafter a military service disposition (a determination of active service, replacement service, second militia service or exemption) is imposed (Article 11 and Article 14). This disposition may be changed when there is a valid reason (Article 65).

Those in active service shall serve for a certain period of time in military units from the date they are enlisted (Article 18, 19, etc.) and those in replacement service shall serve in carrying out public interest service or works in the area of expertise for a certain period of time (Article 26 through 43). On the other hands, those who have completed active service are enlisted in those in reserve service (Article 5 Section 1 Item 2).

Those in reserve service and some of those in replacement service shall be subject to be called for military force mobilization (Article 44) and persons in replacement service and second militia service excluded from the designation of the call for the military forces mobilization shall be subject to be called up for wartime labor(Article 53). Those in the replacement service, on-the-ship reserve service, and second militia service shall be subject to be called for education (Article 55).

On the other hand, the obligation for the draft physical, enlistment in active service, or public interest service personnel call shall expire at the time the persons concerned attain a certain years of age and thereafter that exempted persons shall be transferred to the second militia service(Article 71 Section 1) and the duty of military service of the enlisted men in active, reserve and replacement services, and of those in the second militia service shall be completed by the time when they attain forty years of age. (Article 72 Section1).

As we examined above, the Military Service Act sets forth the legal relations and obligations of those who are to be the members of the armed forces in peacetime or of those who are to be the members of troops in national emergency, and of those who are to be the members of military support personnel. From its text, we can find that the Military Service Act places an emphasis on maintaining appropriate size of troops for national defense as well as flexibility in the combat capabilities in preparation of national emergency.

B.Opinion (Denial) of Justice Lee Kang-kook, Justice Kim Hee-ok, Justice Lee Dong-heub, and Justice Song Doo-hwan

1.The meaning of the first part of Article 3 Section1 of the former Military Service Act and the issues

As it states "any man who is a national of the Republic of Korea, shall faithfully perform military service under the conditions as prescribed by the Constitution of the Republic of Korea and this Act," the first part of Article 3 Section 1 of the former Military Service Act, the Instant Provision, clarifies that all male citizens of the Republic of Korea are basically required to serve in the military. This means that they must be subject to a physical examination for conscription.

On the contrary, any military service duties of female citizens of the Republic of Korea is not explicitly enumerated in the former Military Service Act except for the second part of Article 3 Section 1 of the same Act stating that "any woman may perform only active service by

application". Thus, Korean females are deemed to have no duty to serve in the military.

The Instant Provision, in other words, excludes women from those who subject to the draft duty when it made all male citizens of the Republic of Korea to undergo military service.

The 'military service duty' is not the same with the 'duty of national defense' but the former takes a considerable part of the latter. In this regard it becomes an important issue whether the Instant Provision, when it imposed different duties of military services on men and women in the course of legislation of national defense duty, can be a different treatment which could be constitutionally justified or unjustified infringement on the right to equality.

2. Whether the Instant Provision infringes on the right to equality

(A) Standard of review

In reviewing on whether the complainant's right to equality is infringed or not, the Court's determination on which standard of review, strict or relaxed, is to be applied would vary depending on how much the legislature has its legislative power. In the instances where either the Constitution requires a particular equality or a different treatment causes a serious restriction on basic right related, the legislative power would be reduced and therefore the strict standard of review shall be applied (11-2 KCCG 770, 787, 783, 98 Hun-Ma363, December 23, 1999).

1)Article 11 Section 1 of the Constitution declares that "all citizens shall be equal before the law," and "there shall be no discrimination in political, economic, social or cultural life based on sex, religion or social status."

It is evident that the Instant Provision imposes different duties of military service based on 'gender' and therefore it amounts to the exact example of discrimination described in the second part of Article

11 Section 1 of the Constitution. However, the Section mentioned above focuses on the prohibition of unreasonable discrimination and does not require the legislature to absolutely prohibit any discrimination based on the reasons described in that Section in order to restrict on the legislative power allowed to the legislature.

And, in the case of 'gender,' people can neither choose it freely nor change because it is an inherent characteristic. Gender is not a factor which influences on human dignity and worth of individuals. Nevertheless, under a pressing need for overcoming gender barrier, our Constitution has enumerating gender as a basis of discrimination to be prohibited because it has been justified as a typical basis of discrimination for a long time. The constitutional provisions like Article 11 Section 1 of the Constitution, however, do not prohibit a different treatment based on differences between male and female such as physical differences related to pregnancy and childbirth. And it is hard to come to the conclusion that all the different treatment based on gender, as the cases of casting serious doubt on its unconstitutionality, are always required to be subject to a strict standard of review.

Our Constitution has special provisions of gender equality protection for the important parts of people's activities including 'working woman' and 'marriage and family life' etc, the areas necessary for a strict prohibition of unreasonable different treatment based on sex (Article 32 Section 4 and Article 36 Section 1 of the Constitution). And the Court has applied a strict scrutiny standard to the cases requiring particular gender equality as the instances mentioned above. However, the Instant Provision does not amounts to such cases.

2)'National security,' as a significant legal interest, is constitutionally recognized and serves as the fundamental basis of people's exercise of freedom as well as necessary foundation of nation, territorial integrity of the nation and protection of the people's lives . And the duty of military service is one of the vital means chosen by the Constitution in order to preserve the national security (98 Hun-Ma363, October 28, 2004). In other words, all citizens shall be regarded to take responsibilities in accordance with the statutes for

retaining the nation's independence and preserving the nation's territorial integrity against direct or indirect aggressions of the outside rivals because Article 39 Section 1 of the Constitution states that "all citizens shall have the duty of national defense under the conditions as prescribed by Act."

Currently, the citizens' duties of national defense are regulated by various statutes including the Military Service Act, the Establishment of Homeland Reserve Forces Act, the Framework Act on Civil Defense, the Emergency Resources Management Act, the Requisition Act, and the Framework Act on the Management of Disasters and Safety. It is clear that the basic rights of the persons under such obligations would be restricted in conducting those obligations. However, those obligations are already expected in light of the constitutional provisions of national defense duties and therefore the individuals under those duties cannot be deemed that they sacrifice themselves for our nation or public interests.(11-2 KCCG 770, 783, 98 Hun-Ma363, December 23, 1999). For these reasons, we do not find that the imposition of those duties on men would seriously restrict their basic rights related.

3)Moreover, the classification of those who are subject to the draft is directly linked to the national safety and shall be made to serve its own purpose in maintaining the best combat power by flexibly responding to the rapidly changing domestic and foreign affairs. Thus, in making such decision, the legislature must have substantial latitude in exercising its policy-making power (14-2 KCCG 704, 710 2002Hun-Ba45, November 28, 2002).

Since we are not pursuing the Korean hegemony in the world, it is the best way for our nation to retain Military force at a necessary level. In general, the determination of proper number of troops must be made considering the political, diplomatic environment and economic size not to mention the amount of military threat to the nation. Therefore, the initial discretion to draw lines in classifying those who are to be members of nation's forces resides in the legislature and that decision is to be made to the extent that is

necessary for retaining nation's independence and preserving the territorial integrity based on various circumstances including the nation's security situation, financial capabilities (11-1 KCCG 122, 97 Hun-Ba3, February 25, 1999; 14-2 KCCG 704, 2002Hun-Ba45, November 28, 2002).

4)We will apply the relaxed standard of review, under which a statutory provision is unconstitutional only when it manifests a patently arbitrary classification by violating the principle against arbitrariness because: the Instant Provision does deal with neither the instance where the equality is specially required by the Constitution nor a different treatment which can cause a significant restraint on the basic right related; and, in classifying those who are to be subject to the draft, the legislature has wide latitude to exercise its policy-making power.

(B) Review on merits

Now, we will examine whether the Instant Provision is a different treatment without any reasonable reasons when it uses 'gender' as a criterion for its classification those who are to be subject to the duties of military service.

1)It appears that men and women are different from each other in terms of their physical abilities. Men as a group, in general, are superior to women in their physical strength and swiftness while women as a group are superior to men in their flexibility. In light of the physical capability required for conducting combat operations, men, who have superior in their physical strength needed for carrying and activating a weapon or war equipment, are more likely to have proper physical capabilities than women.

Of course, when we consider particular individuals of men and women rather than those as groups respectively, there must be evident instances where a certain women have better physical ability than some men do. But in reality, except for the system where we can easily identify a person to be exempted from military service duty due

to noticeable lack of physical ability, it is very difficult to have a more elaborate physical examination system that can compare the individuals' physical abilities more specifically by measuring with numbers and objectifying those abilities if we consider that: it is hard to establish the specific standards for physical capability for each individual; there might be a possibility that a person does not faithfully take his or her physical examination to avoid military service duty.

Furthermore, even a woman with excellent physical capability may have a hard time in conducting her duties of training or war drills during around one-week menstrual period in every month. It is almost impossible for women to lead a life in a military camp or receive military drills during pregnancy or a certain period after delivery because there is a probability that women of childbearing age, who are currently not pregnant, are always burdened with un-substitutable pregnancy, childbirth and breast-feeding. In addition, women rather than men are more likely to be exposed to a danger including sexual abuses when they are taken prisoner in wartime so that dispatching a woman to a real battle such as military operation is more demanding.

We conclude, therefore, that the legislature's decision of making only men to be subject to the conscription examination and to serve in the military for the governmental objectives of preserving the best combat efficacy is not deemed to be patently arbitrary.

2)On the other hand, the complainant asserts that the government is arbitrary when it excludes women from the military duty of the replacement service rather than active service even though the replacement service does not particularly require any physical ability.

However, the replacement service or the second militia service not to mention the active service plays a role as troops for the national security.

In other words, it is financially burdensome to cover the cost for maintaining a heavy troop exceeding a proper one in light of our

economic situation. Maintaining a heavy troop also would stimulate neighboring countries and could lead up to an arms race. We cannot also exclude the possibility that it may pose a threat to our national security. Moreover, the number of troops in time of peace should be limited to a certain level and the number of soldier in active service must be also limited because it is feared that a growing social spread and hegemonic control of military culture may negatively influence on the realization of the constitutional ideas of freedom, equality and peace. Nonetheless, the need for reserve troops for national emergencies is undeniable.

For these reasons, the Military Service Act makes certain people to render the replacement service or the second militia service as reserve troops, who can be immediately dispatched to the troops in anytime of national emergency, and to be subject to a call-up for troops or wartime labor in national emergencies such as wartime.

We conclude, therefore, that the complainant's argument mentioned above is unfounded because we cannot consider that a physical ability or condition is not required for the person, as a reserve member of troop, subject to the duty of replacement service or second militia service.

3)In addition, the legislation of Instant Provision is not arbitrary compared with those in other countries. Among around 70 countries adopting the draft system, only a very few countries like Israel impose a military service duty on women. Even in Israel, the period of military service and its refusal reasons for men are different from those for women and, in reality, it is very rare for a woman to serve in combat units.

4)Besides, it would cost huge amounts of money for the facilities and administrative system in order to make both men and women to equally serve their military duties because those facilities , and administrative system are unprecedented ones in our traditions or other countries' legislations that we could never estimate their cost. In addition, we are not convinced that, if we also make women to have

full-scale duties of military service under current male-oriented military organization and its facilities, crimes like sexual harassment based on power and dominance within the military or the slack military discipline caused by relationships between men and women would not happen.

5)For the foregoing reasons, we do not conclude that the different treatment of the Instant Provision in classifying those who are to be subject to military service duty based on sex is a discrimination without any reasonable reason incompatible with the rule against arbitrariness and therefore the Instant Provision does not infringe on the right to equality.

3. Review on the complainant's other claims

Complaint argues that his freedom of occupation, freedom of residence, freedom of learning and right to pursue happiness became infringed by the Instant Provision when it forces him to undertake military service duty. Nonetheless, the complainant in making those claims does not specify the limitations on his basic rights due to his particular fulfillment of his military duties differently imposed according to the types of his duties of military service.

We cannot say that the legislation of statutory duty of military service is not subject to a constitutional constraint. That legislation also complies to the general constitutional principle and the spirit of basic right protection(11-1 KCCG 122, 130, 97 Hun-Ba 3, February 25, 1999). However, the limitation on the people's basic rights caused by the imposition of military service duty as the complainant asserts in this instant case is indispensible for training and maintaining the skilled combat troops for national security. We, therefore, do not find that such limitation goes beyond the permitted boundary of restriction on basic rights and therefore violates the Constitution. Besides, we will not further review the other matters like whether particular duties imposed by individual dispositions of military service duty because it is not subject to the Court's review.

C.Concurring opinion for the Part B (Denial) of Justice Kim Hee-ok

I agree with the majority opinion mentioned above in Part B that the Instant Provision does not infringe on the complainant's right to equality and therefore is constitutional. Nonetheless, I would just like to add my opinion below in order to point out that the legislature is required to make a sincere effort to improve current laws in consideration of the significance of constitutional duty of military service.

Article 39 Section 1 of the Constitution, when it makes all citizens to have the duties of the national defense, aims for the integration of national community by forcing every citizen to share of the duties of national defense which is the basis of the foundations of our nation.

Under the current law, however, men and women in fulfilling their respective national defense duties receive significantly different treatments because men are basically responsible for having military service duties including active service and reserve service and duties to be a member of civil defense corps in accordance with the Framework Act on Civil Defense, whereas women do not have those duties at all except for only having cooperative duties required by the Framework Act on Civil Defense, duties of presenting the subject of requisition under the Requisition Act, and duties of taking emergency preparatory education in case of being designated under the Emergency Resources Management Act. (Article 3 Section2 and Article 18 of the Framework Act on Civil Defense, Article 9 Section 1 of the Requisition Act and Article 2 Section 1 and Article 11 of the Emergency Resources Management Act). In addition, the reason why men continuously feel that they suffer from social and economic disadvantages from carrying out their military service duties even after they are discharged from the service not to mention during the service period is that the military service in its nature is such a non-substitutable duty that the benefits of social, economic, and institutional freedom resulted from not fulfilling such duties could hardly be obtained by other legislations.

In this situation where other legislations excluding one in the area of national defense have limitations in compensating men for their disadvantages from fulfilling their military service duties, if we takes a measure which makes those who do not have that military service duty to support and provide personal or material support those who have such duties in other ways, that measure will be either a form of national defense duty which indirectly contributes to the national defense or a method of reasonable distribution of national defense duties which are to be imposed on every citizen for the sake of unification of national community. However, in my view, it appears that our legislature has neglected careful consideration of that reasonable distribution of military service duties.

On the other hand, even though the legislature has broad latitude in the legislation of national defense duties of Article 39 of the Constitution which based on the premise that a superior strategy shall be made in preparation for threatening situations on our national community, the contents of those duties, as an exception to our Constitution which focuses on the protection of basic rights, shall be related to national defense, which is the purpose of the imposition of military service duty, either direct or indirect. Thus, the instances where a social and public service is to be a form of military service duties shall be limited on inevitable circumstances where a substitute service must be imposed so far as that service maintains its connection with the purposes of military service duty for national defense. In this regard there are certain grounds that the Instant Provision cannot be considered arbitrary in not imposing a substitute duty of military service particularly on women.

On the contrary, it cannot be denied that current duties of military service especially in its replacement service, a form of substitute service for social and public service in a wide sense almost unrelated to national defense, tends to vary and expand its scope. These tendencies are more likely to distort the characteristics of military service duty as the people's labor could be used free of charge for the public service other than national defense, the purpose of military service duty. In my view, this would be inconsistent with the system

of our Constitution under which a citizen's duty is deemed as an exception.

In brief, the Instant Provision does not infringe on the complainant's right to equality in light of the high-level strategic nature of the legislature's discretion in legislation of national defense duty. However, if I consider the exceptionality of the citizen's duty under our Constitution and the spirit of Article 39 Section 1 of the Constitution which made every citizen to be subject to the national defense duty for the sake of unification of national community, I cannot say that there is no problem in current tendencies that, in imposing the national defense duties, the government is becoming increasingly liberal on using the citizen's labor without any compensation on matters unrelated to the national defense, the original purpose of national defense duty. Thus, in embodying the national defense duty, the legislature shall make a serious effort to make that : the substitute service duty for the active service duty is to be imposed in an exceptional case and maintain its connection to the original purpose of military service duty, the national defense; the citizens not subject to the military service duty support in other ways for other's fulfillment of that duty; and the massive disadvantage from the fulfillment of that duty are to be addressed. However, the determination of method to achieve these goals rests on the legislature's far -reaching policy-making power.

D.Concurring opinion for the Part B (Denial) of Justice Cho Dae-hyen and Justice Kim Jong-dae

We agree with the majority opinion for the Part B that the Instant Provision in imposing the military service duty only on men is not against the Constitution. However, the grounds for our agreement are different from those for majority's opinion as follows.

(1)For the sake of preserving and maintaining the existence of the Constitution and national community, our Constitution combines the features of basic rights with those of basic duties equally. Our constitution stipulates the protection of citizens' basic rights and its

limitations under Article 10 through Article 37, whereas it separately prescribes the imposition of basic duties under respective Article 38 and Article 39. In light of this basic structure, the statutes imposing a national defense duty as one of citizen's basic duties under Article 39 of the Constitution are entirely different from those limiting the people's basic rights. Therefore, in its constitutional review, the Court does not need to consider the matter to decide whether an individual basic right is excessively restricted or not. Rather, we believe that it is sufficient for the Court to examine, in applying a constitutional standard of review, whether the imposition of national defense duty as a basic duty either can be justified in its purpose or is reasonable and fair in its contents. In reviewing whether the contents of basic duty imposed is reasonable or fair, the Court will decide on whether the legislature, in imposing such duties, complies with the constitutional values or principles, in other words, the rule of clarity, rule against blanket delegation, protection of confidence in law, respect of basic rights, and respect of right of equality. For the foregoing reasons, there is no need to concern that the Court would neglect in protecting the citizens' basic rights just because it, in reviewing the instant case, does not apply the rule against excessive restrictiveness which is to be applied for the constitutional review of basic-right restriction statute.

(2)The Instant Provision is a statutory provision that is related to the classifications of those who are subject to the draft to be members of troops, whose ultimate goals are to maintain the existence of nation and to preserve the integrity of our nation's territory as premises of basic right protection against direct or indirect invasions of foreign enemies. These classifications to particularly select those who are required to be members of the troops among the citizens having national defense duties is relevant to a direct duty to be members of troops and therefore the legislature shall conduct such classifications in consideration of various circumstances like the nation's security situations an financial capabilities. The Court has already admitted that, in conducting those classifications, the legislature has wide latitude in exercising legislative discretion because the purpose of those classifications is directly related to the nation's defense and those classifications are to be conducted in order to maintain the best

combat troops in response to the rapidly changing domestic and international political situations (14-2 KCCG 704, 710, 2002Hun-Ba45, November 28, 2002). Therefore, it is certain that the aim of government's imposition of basic duties under the Instant Provision is directly linked to the needs of maintaining our nation.

The remaining issue now is whether the Instant Provision, when it makes only men to be subject to the draft excluding women from that military service duty, is reasonable and fair complying with the principle of equality and respect for basic rights. In its decision, the Majority regards that issue of whether the complainant's right of equality is infringed on and therefore the Court focuses on reviewing whether making only men to be subject to the draft is a reasonable different treatment or not. We, however, believe that the different treatment under the Instant Provision is only one result of the legislature's imposition of military service duties only on men and therefore it is meaningless unless the Court's review on whether the cause of that different treatment, the legislature's imposition of military service duties only on men, is reasonable and fair to be constitutionally justifiable imposition of duties has to be preceded. Because, like as if a statute restricting basic rights becomes a constitutional statute once it passes a standard of review test whatsoever the burdens caused by that statute is excessive or not, it is rational for us to admit that the statute imposing basic duties becomes a constitutional statute so far as it passes the standard of review mentioned above regardless of whether the restriction on basic rights is excessive or discriminatory. For these reasons, it would be deemed to be a proper reasoning that the Instant Provision treating men differently from women is constitutional not because its different treatment "is not an arbitrary one and therefore does not violate the right to equality," but because its imposition of basic duties "which makes only men to be subject to the draft to be members of troops is reasonable and fair in light of the purposes of that imposition and therefore the different treatment of basic right restriction caused by such imposition must be permitted."

(3)In this regard, we will examine whether the imposition of basic

duties under the Instant Provision, in its contents, is reasonable and fair.

(A)At first, considering that the sacred mission of nation's troops is to secure the nation's safety and defend national territory (Article 5 Section 2 of the Constitution) and the legislative intent of the Instant Provision is to supply the same troops with their members, it should be remembered that the decision on whether the imposition of basic duties under the Instant Provision, in its contents, is reasonable and fair shall be made in consideration of its legislative intent. In other words, it would be better approach that the decision as to whether women are subject to the draft or not and, if they are, how they have to fulfill their duties shall be made by placing an emphasis on the entire plan of nation's defense for the preservation of best combat troops only for the sake of national defense rather than on the basic right protection where the basic rights of individual man must be always guaranteed without any arbitrary discrimination between man and woman. Therefore, an impermissible reason for different treatment based on the fixed idea about gender roles in the area of basic right protection does not have to be always impermissible in case of the imposition of national defense duty.

(B)As for the imposition of nation's defense duty on women, our current law excludes women from military service except that a woman may either perform an active service as officers, warrant officers, assistant officers, and military cadets by application(the last part of Article 3 Section 1 of the Military Service Act) or render military service as a member of homeland reserve forces or a civil defense corps member by application (Article 3 Section 1 of the Establishment of Homeland Reserve Forces Act and Article 18 Section 2 of the Framework Act on Civil Defense). Consequently, a woman has no military service duty at all unless she does not apply for a military service except for the basic duties imposed on general citizens like the duties of collaboration under the Framework Act on Civil Defense or those of presentation of requisition material under the Requisition Act.

(C)In terms of physical capability required for conducting combat operations, men, who have superior in their physical strength needed for carrying and activating a weapon or war equipment, are more likely to have proper physical capabilities than women do. On the contrary, as for women, the situations where it is burdensome for them to be dispatched to a battle in an emergency in order to maintain a best military force could always occur due to their ordinary physiological conditions, pregnancy, childbirth or breast-feeding. In addition, women rather than men are more likely to be exposed to various dangers in wartime and, when not in war, the concern of crimes like sexual harassment based on power and dominance within the military or the slack military discipline caused by relationships between men and women cannot be excluded. It is for these reasons that the Ministry of National Defense currently seldom posts women in the military, who has applied to join and entered the army, in a smaller unit than a regiment whose main responsibilities are to engage in a ground battle, a unit whose responsibilities are special operations or reconnaissance missions, or a unit or a position that requires a physical condition not fit for most women in the military.

In light of physical characteristics of women and other concerns in case of women's enlistment in military service as explained above, the legislature decided that it is proper for it to make only men to be subject to the military service duties for the sake of preserving the best troops through the Instant Provision. We find that such legislative decision was reasonable and fair, considering the legislative intent of the imposition of national defense duties, constant maintenance of the best combat efficacy, and particularly our nation's national defense circumstances which, as the only divided country under a ceasefire in the world, constantly requires effective preparations for the mobilization of the best military forces due to currently continuous armed conflict between South and North Korea whatsoever local war or all-out war.

Of course, there must be evident instances where certain women have better physical abilities han some men do. However, in imposing

national defense duties under the Instant Provision, the legislature considered the physical capabilities of women as a group in terms of preservation of the best combat troops. Thus, we cannot say that imposition of duties is unreasonable or unfair if the legislature did not consider the physical ability of individual woman respectively. Because, as explained above, in the determination as to whether that imposition of national defense duties is proper or not, it appears to be a better approach that a careful consideration about entire plan for national defense rather than the one about individual basic right should be given.

(D)Even if, as the assertion of the complainant, we broadly interpret the Instant Provision as it is a provision about the imposition of military service duty which includes military services to support combat troops and various substitute military services not to mention a military service to be a member of combat troops, the conclusion that the duty imposition under the Instant Provision is reasonable will be the same.

Making women to be subject to the draft and posting them in the various positions of substitute military service means that the volume of human resources in military becomes doubled. This increase of the number of people engaging in substitute service without any special demand or management plan will be inevitably accompanied by a waste of national budget or human resources for its management and therefore will be a problem which puts a burden on nation-wide finances and effective distribution of resources. For the foregoing reasons, we can never find that there is an inevitable reason for making women to be human resources in military because our nation needs to make a national defense plan for retaining the best combat troops and, at the same time, not to waste the limited national defense budget and human resources by efficiently utilizing and distributing them.

(E)Thus, in light of our nation's national defense situations, national financial ability, the demand of human resources in troops and military institutions, the physical capabilities required to be a member of

troops, and the functional differences between men and women in their social roles, we believe that the Instant Provision, when it uniformly imposes the military service duties on only men excluding women, is deemed to be reasonable and fair.

(4)We conclude that the imposition of national defense duties under the Instant Provision can pass the standard of review test for the imposition of basic duties because it is reasonable and fair, considering that: such imposition pursues a legitimate aim of the preservation of nation; and such imposition, in its substance, is not inconsistent with the constitutional principle of equality and respect for basic rights. Therefore, so far as the imposition of national defense duties under the Instant Provision is constitutional, the incidental restrictions on the complainant's basic rights like right to equality, freedom of occupation, and freedom of residence, etc. shall be permitted and therefore this Court is not necessary to review over that issue.

V. Conclusion

Therefore, the complainant's constitutional complaint over Article 8 Section 1 of the former Military Service Act shall be dismissed due to the expiration of filing time limit and the other complaint over the first part of Article 3 Section 1 of the former Military Service Act shall be denied for lack of merit. The former decision is rendered by the consensus of all Justices and the latter decision is also rendered by the consensus of all Justices except Justices Lee Kong-hyun and Mok Young-joon who write their dissenting opinions (unconstitutionality) in paragraph 6 below and Justice Min Hyeong-ki who writes his separate opinion (dismissal) in paragraph 7.

VI.Dissenting opinion of Justices Lee Kong-hyun and Mok Young-joon

Based on the grounds as follows, we find that the Instant Provision discriminates without any reasonable reasons against both men and women in fulfilling their national defense duties and therefore is

unconstitutional.

A. National defense duties under the Constitution

Article 39 Section 1 of our Constitution patently express that women as well as men are an agent responsible for the national defense duty by enumerating that "all citizens shall have the duty of national defense under the conditions as prescribed by Act."

Considering that it is to maintain the existence of nation and to preserve the integrity of our nation's territory against direct or indirect invasions of foreign enemies and a modern war as an all-out war requires not only a high level of technology and information but also the cooperation of the whole nation, the national defense duty is the notion that includes all the duties of : i) a direct duty to be a member of troops like serving military duty under the Military Service Act, ii) an indirect duty to serve military duty under the Establishment of Homeland Reserve Forces Act, the Framework Act on Civil Defense, and the Emergency Resources Management Act, and iii) a duty to obey to the military operation orders after he or she become a member of troops (7-2 KCCG 851, 91Hun-Ma80, December 28, 1995 and 14-2 KCCG 704, 710 2002Hun-Ba45, November 28, 2002).

Every citizen, accordingly, takes responsibility for the national defense under the conditions as prescribed by statutes and therefore, if discrimination based on the individual's circumstances such as gender, physical abilities, and educational background happens, there must be reasonable reasons to justify that discrimination.

B. Statutory duties which specify the national defense duties

Current national defense duties are prescribed in various statutes like the Military Service Act, the Establishment of Homeland Reserve Forces Act, the Framework Act on Civil Defense, the Emergency Resources Management Act, the Requisition Act, and the Framework Act on the Management of Disasters and Safety. The national defense duties imposed on men and women under these statutes are as

follows:

1. The national defense duties imposed on men

(A)At first, all male citizens of the Republic of Korea are basically required to serve in the military under the Article 3 Section 1 of the Former Military Service Act. Every man who is a national of the Republic of Korea shall be enlisted into the first militia service when he attains eighteen years of age (Article 8 of Military Service Act) and any person under the obligation of military service shall undergo the draft physical, which consists of physical examination and psychological test, in the year when he turns 19 years old and thereafter a military service disposition (a determination of active service, replacement service, second militia service or exemption) is imposed on him (Article 11 and Article 14). On the other hand, those who have completed active service are enlisted into the reserve service (Article 5 Section 1 Item 2). Those in reserve service and some of those in replacement service shall be subject to be called for military force mobilization (Article 44) and persons in replacement service and second militia service excluded from the designation of the call for the military forces mobilization shall be subject to be called up for wartime labor (Article 53).

(B)Those who have completed active service or replacement service are to be enlisted into the homeland reserve service under the Establishment of Homeland Reserve Forces Act (Article 3) and are to be subject to be the mobilization and training (Article 5 and 6)

(C)On the other hand, all male citizens of the Republic of Korea shall cooperate with the civil defense measures of the State and the local government under the Framework Act on Civil Defense (Section 3) and shall be a member of the civil defense unit from January 1 of the year when he is 20 years to December 31 when he is 40 years old; provided, that those who are engaged in certain types of occupations shall be excluded (Section 18) and shall be subject to the training and exercise (Section 23).

(D)Besides, all male citizens of the Republic of Korea have a duty to present of requisition material under the Requisition Act (Section 9) and the duties under the Emergency Resources Management Act.

2. The national defense duties imposed on women

(A)Our current law excludes women from military service duties except that a woman may either perform an active service as officers, warrant officers, assistant officers, and military cadets by application(the last part of Article 3 Section 1 of the Military Service Act). The application option, however, can never be a national defense duty.

(B)All female citizens of the Republic of Korea are excluded from rendering military service as a member of homeland reserve forces except that they may apply and become a member of those forces (Article 3 of the Establishment of Homeland Reserve Forces Act). The application option, however, can also never to be a national defense duty.

(C)On the other hand, all female citizens of the Republic of Korea, just like all male citizens, shall cooperate with the civil defense measures of the State and the local government under the Framework Act on Civil Defense but they have no duty to be a member of civil defense unit except that they can be a member of that unit by application. (Section 3 and 18)

(D)Besides, as for all those duties under the Requisition Act, the Framework Act on the Management of Disasters and Safety, and the Emergency Resources Management Act, men and women have the same duties.

3. Occurrence of different treatment

Consequently, different treatments between men and women in taking responsibilities for the national defense are caused by the Military Service Act, the Establishment of Homeland Reserve Forces

Act, and the Framework Act on Civil Defense.

C. Whether those different treatments are reasonable

1. Standard of review

We agree with the majority opinion that the Court shall apply the relaxed standard of review and therefore the Instant Provision infringes the right to equality only if its classification is arbitrary. We will discuss on that matter below.

2. Review on merit

(A)There is no denying that overall body structure and physical ability of men are different from those of women and therefore men and women have to play their different roles in the nation and society respectively. Likewise, the different treatments in fulfilling their national duties should be admitted.

However, the military service which is directly relevant to physical conditions or capabilities are limited to the active service (including alternative service by allotments of recommendations under Section 24 and 25 of the Military Service Act), and the full time reserve service and the service of on-the-ship reserve service (Section 21 through Section 23-5). In other words, the person in those services basically has to reside inside a military compound(in case of full time reserve service, those who are called for that service may reside outside military units). Only those who are to undergo military training and maintain physical strength for combat are those in active service and reserve service mentioned above.

Without any obligation to reside inside a military compound, those who are in the replacement service only have duties to render that service as the personnel as follows: a public interest service personnel is engaged in activities to support the public interest service or administrative works, activities to support art and sports field for promoting culture and enhancing national prestige, and activities to

support economic, social and cultural development of developing countries; a public health doctors; public service advocates; skilled industrial personnel. Thus, in rendering these services, great physical strength is not necessary in most cases. Furthermore, those who are in the second militia service do not have a duty to service in a certain period at all and therefore there is no room for reconsideration of physical characteristics of men.

On the other hand, for the purpose of organizing military units or any operational demand in wartime, incidents or equivalent national emergency, some of those who are in replacement service are subject to the military forces mobilization call and the remain of those in replacement service and the second militia service are subject to the wartime labor call to support military activities. The duties of this service, however, are only to obey the military operation orders or cooperate with them. In case of national emergency, the determination of those who are to be called for such mobilization or wartime labor shall be made by the qualified authorities considering the circumstances of the day of necessary human resources, supply and demand of the armed forces, and physical capabilities of those who are called up. In this regard, physical abilities of men do not appear to be an indispensible requirement for the duties to obey the military operation orders or cooperate with them in national emergency.

Thus, even though we admit the differences between men and women in their physical abilities and social roles thereby, the imposition of all military services only on men under the Instant Provision cannot be deemed to be a reasonable different treatment in imposing national defense duties stipulated in the Constitution. Rather it is more likely to be a different treatment based on archaic generalizations coupled with a presumption that the lifestyles and relationships between men and women have been formed in a fixed way. This different treatment based on the stereotype of gender roles is not permitted (17-1 KCCG 1, 9, 2001Hun-Ka9, February 3, 2005).

(B)To remove the unreasonableness of different treatment explained above, with respect to the intent of Article 39 Section 2 of the

Constitution which states that "no citizen shall be treated unfavorably on account of the fulfillment of his obligation of military service," there must be an institutional framework where the restrictions on basic rights on men caused by the fulfillment of their military service duties can be alleviated or the loss from that restriction can be compensated in order to strike a balance between men and women in imposing national defense duties based on gender.

However, as we examined above, we cannot find that current statutes which specify the duties of national defense, in its distribution of those duties, make a balance on the whole because they impose most of those duties on men, whereas the duties of women are limited to the passive support for military service. Moreover, any institutional measure to relieve the basic right restrictions imposed on men and compensate the losses from those restrictions or their contributions have never been taken so far. (There is no question about the important national or social role of pregnancy and childbirth of woman. We believe, however, that the matter which the government is to take measures to compensate the loss or contribution of woman should be handled separately from the issue of the instant case)

D. Sub-conclusion

We conclude that the imposition of national defense duties under the Instant Provision, when it imposes such duties only on men, is arbitrary without any reasonable reasons and therefore is against the Constitution by infringing on the right to equality of men.

7. Dissenting opinion (Dismissal) of Justice Min Hyeong-ki

I conclude that the complaint over the Instant Provision shall be dismissed because the complainant's basic rights may not be infringed and therefore requirement of self-relatedness or justiciable interest is not satisfied based on the following reasons:

A. Arguments of complainant

The complainant files the instant case with the Court and asserts that the Instant Provision, when it imposes the duties of military service only on men, infringes on his right to equality and freedom of residence. It is evident that his assertion is not that the responsibility of military service shall not imposed on men just as it is not imposed on women but that women also have those duties of military service just like men have. Thus, the issue in the instant case must be the matter as to whether there is the possibility of basic right infringement, self relatedness, or justiciable interest.

B. Infringement on right to equality

1.As for a statute infringing on basic right, the individual subject to that statute, as a party, is to claim for infringement on his basic right. As for a statute allocating benefits, it is general, on the contrary, that the person excluded from that benefit is to file a complaint and assert that he or she is excluded against his or her right to equality (13-2 KCCG 714, 723, 99Hun-Ma494, November 29, 2001 and 15-1 KCCG 765, 770, 2002Hun-Ma321, June 26, 2003). In the latter instance, if a statute which provides a benefit to the opposite group is declared to be unconstitutional and thereafter the legal position of a person may be improved due to the remove of that benefit from that opposite group, then such person can be regarded to meet the self-relatedness requirement for filing a constitutional complaint (11-2 KCCG 770, 780, 98Hun-Ma363, December 23, 1999, 13-2 KCCG 750, 756, 2000Hun-Ma84, November 29, 2001, and KCCG 163, 917, 919-920, 2009Hun-Ma340, April 29, 2010).

And, in order to satisfy the requirement of the self-relatedness, the three elements must be comprehensively considered: i) a grant of benefit to a group results in a disadvantages on the other group due to the competitive relationships between the two group; ii) there must be possibility that the legal position of an individual from a group would be improved because a statute which grants benefit on the opposite group is declared to be unconstitutional and influences on the basic rights or right or liabilities relationships of the group of that

individual due to the remove of such benefit given to the opposite group; and iii) the other factors like the size of comparative group, the legal characteristics of the benefit or relations of rights, essential characteristics of comparative group, and the interrelationships or substitutability between the two competitive groups.

In addition, I believe that this legal test also applies to those who are granted to a indirect benefit such as exemption from allocations of public fund or fees like tax or burdens not to mention to those who receive an active benefit like wages of social benefits given by government.

2.In the instant case, in light of the nature of military service that men currently fulfill and the essential and characteristic differences of men and women, the obligations of military service imposed on men are hard to be fully substituted by women. The decisions on the contents and scope of military service or those who are to be subject to be such service must be made based on a high level of policy, politics and science technology. Thus, even though the duties of military service are imposed on women, I am not certain that the conscription system or the personnel management of military would be immediately changed in favor of men.

Particularly as for the period of military service, even though the number of troops increases as women also are required to be imposed the duty of military service, the determination on that period shall be made ultimately based on the level of the policy and military technology like the need for maintenance or improvement of combat efficacy and the demand of skilled troops depending on the changing situations of national security rather than simply based on the circumstances of the supply and demand of the armed forces.

Even though the quantitative impact such as the reduction of the military service period of men occurs due to the imposition of military service on women, the advantages to men are incidental or indirect benefits. In other words, I cannot deem those advantages to be interests protected by law or legal interests.

3.Consequently, even when the Court declares the Instant Provision to be unconstitutional, it would not have any direct or material influence on men like the complainant in the contents or scope of their military service duties but only remove the benefits, the exemption from military service duties, which women have received before. Furthermore, that declaration of unconstitutionality of the Instant Provision would not be able to grant the same comparative benefits that women currently enjoys in terms of military service duty to men such as the complainant.

I, accordingly, do not find that there is a possibility which the basic right of the complainant, the right to equality, will be infringed by the Instant Provision. Otherwise, even though I admit that there is that possibility, it is difficult to find that the declaration of unconstitutionality of the Instant Provision would bring either a remedy to such infringement or legal effect in favor of the complainant or improvement of his legal status. Therefore, the requirements of self-relatedness or justiciable interest are not satisfied.

C. Sub-conclusion

For the foregoing reasons, the complaint over the Instant Provision shall be dismissed due to lack of standing.

Justice Lee Kang-kook (Presiding Justice), Lee Kong-hyun, Cho Dae-hyun, Kim Hee-ok, Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan