Disclosure of Military Health Records of Public Officials Case

[19-1 KCCR 711, 2005 Hun-Ma 1139, May 31, 2007]

Held, the Act providing that among the public service personnels of fourth rank or above, the ones who were exempt from obligation of military service are required to report the names of diseases as grounds of their exemption and such that information shall be open to the public, on the ground that such legislation violates the rights to privacy, is not in conformity with the Constitution.

Background of the Case

In July 1998, the nation was gravely shocked by the draft-dodging scandals of some society leaders, which were investigated and divulged by the military and the public prosecutors. Following the scandal, the Korean National Assembly legislated the Act on Reporting and Disclosure of Military Service Records of Public Service Personnels and Others, providing that the public service personnels need to report and open the information regarding their military service to the public. In 2004, the Act became more stringent to post the names of diseases on the Internet and the official gazette along with the names of such individuals in case they were exempt from obligation of military service due to a specified illness. The complainant, who was exempt from obligation of military service due to losing the sight of one eye, filed the constitutional complaint as he was ordered to report the name of his physical deficiency according to the amended provision at issue in this case (hereinafter referred to as 'the statutory provision at issue in this case').

Summary of the Opinions

The Constitutional Court has issued the decision holding the statutory provision at issue in this case is in violation of the Constitution.

All Justices has rendered unconstitutionality opinions: Five Justices of Nonconformity Opinion with the Order of Continuing Application of the Provision at Issue, one Justice of Simple Unconstitutionality Opinion, two Justices of Nonconformity Opinion with the Order of Discontinuing Application of the Provision at Issue, one Justice of Partial

Unconstitutionality Opinion. The summary of each Opinion is as follows.

1. Summary of the Majority Opinion

A.Personal health information containing an individual's physical/mental condition, health, and sex life is one of the crucial elements of human dignity and character. Therefore, the collection and public disclosure of such information upon the adjustment of interests from outer world should not be easily allowed in order to foster an individual's character and self-identity. The names of diseases which are compelled to be made public under the statutory provision at issue in this case are sensitive personal information closely related to the intimate privacy, which should not be known to the public without any special circumstances. Such information should be protected as an element of privacy. When the government notifies the public of such personal information, which infringes the right to privacy, carefully drawn standards and measures should be taken.

B.(1)In the reality where military service corruption scandal including the draft-dodging one is still away from eradiation and the demand for the anti-corruption campaign from the society is very strong, in order to achieve the legislative purposes such as 'prevention of unlawful avoidance of military service obligation', 'contribution for voluntary discharge of obligation of military service' it is necessary that obligors of such duty are to report their information on military service and such information should be a matter of public domain. Meanwhile, the matter whether someone has certain disease or not is one of the key factors in making the decision whether such person is qualified for the military service. Therefore, in order to have an opened military service system, such report and proper publication itself is necessary.

(2)

However, the provision at issue in this case, providing the

publication of disease names along with the lists of individuals having such diseases, does not consider constitutional demand that personal privacy should be protected. Also, the provision at issue in this case requires any disease name to be opened to the public regardless such illness is related to the core of privacy, therefore resulting in disallowing

the right to demand that some of diseases be kept in private. Thus, indiscriminately opening such information to the public without any regard to the invasion of character and privacy of holders of such information has led to grave violation of the right to privacy of the public service personnels, who were obliged to report it.

(3)Considering our reality stated above, although the measure such as disclosing the names of diseases of the people exempt from obligation of military service is necessary, the measure should be restrictedly used only for the people who need to exercisenoblesse oblige.The public service personnels of fourth rank or above are mostly in the ranks of a section chief or a chief clerk. Thus on the job they do not hold final say in any decision making process. Rather from the general perspective in the society, they are professionals just working for the government. Given that, although their military service information receives public attention, the degree of it is relatively weak and the demand for the protection of personal information of the public service personnels should neither be lowered nor be neglected. Furthermore, if the information is related with the core of privacy, such as the names of diseases, the need for protection is to be recognized with greater care.

(4) In conclusion, the statutory provision at issue in this case, providing that the public service personnels of fourth rank or above are to be the subject of releasing the names of their diseases without any specified exception, considerably neglects the constitutional demand for the protection of privacy in order to achieve the legislative purpose, therefore violates the fundamental rights of the complainant along with other public service personnels, guaranteed by Article 17 of the Constitution, which are the right to privacy.

C.In our reality where the necessity of having an opened system of military service information is acknowledged, as long as it is hard to tell that the reporting of the names of diseases of the people exempt from obligation of military service and publicizing in a proper way are unnecessary, it is not appropriate to bring the consequences of not being able to publicize any of disease names of any public service personnel of fourth rank or above by making simple unconstitutionality decision.

Therefore, we hereby issue a decision of nonconformity to the Constitution, to the effect the legislators shall be able to take a measure to ease the restriction against privacy, and order that the statutory provision at issue in this case shall continue apply until such reform legislation is enacted.

2. Summaries of the Minority Opinions

A. Simple Unconstitutionality Opinion of Justice Lee Kong-hyun

The statutory provision at issue in this case violates human dignity and the core of human character. Therefore, it is necessary to declare simple unconstitutionality decision for that provision.

B. Partial Unconstitutionality Opinion of Justice Cho Dae-hyen.

The statutory provision at issue in this case includes a part providing that even in the case where the exemption from obligation of military service is awarded without any use of illegal means, the grounds for the exemption should be specifically noted to the public without any exception. Only such part of the statutory provision at issue in this case is in violation of the Constitution. Therefore, the unconstitutionality decision should be made partially only for the part stated above.

C. Nonconformity Opinion with the Order of Discontinuing Application of the Provision at issue of Justice Lee Dong-heub, Justice Song Doo-hwan.

In this case, there is no exceptional ground allowing continued application of the statutory provision at issue in this case. Therefore

the Court should have made a decision of nonconformity to the Constitution with the order of discontinuing the application of the statutory provision at issue in this case.

Aftermath of the Case

On this holding, the press expressed a view that the Court's decision

that the constitutional protection for the privacy of the public service personnels should be respected is somewhat conflicting with the public perception that the public service personnels should hold higher moral standard.

Since the Court issues a decision of nonconformity to the Constitution with the Order of continuing application of the statutory provision at issue in this case, the provision shall continue to apply until the reform bill is enacted. However, if the reform bill without the unconstitutional elements is not enacted by December 31st, 2007, the statutory provision at issue in this case automatically loses its effect on January 1st, 2008.

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Party

Complainant

Jung ○ Sang

Counsel : Jo Bong Kyu

Judgment

1. Out of the main text of Article 8 Section 1 of the Act on Reporting and Disclosure of Military Service Records of Public Service Personnels and Others(revised on December 31, 2004 through Act No. 7268), the part which refers to the publication of their own disease names of public officials of fourth rank or above, is non-conforming to the Constitution. This part of the provision shall continue to apply until the legislator revises by December 31, 2007.

2. Remaining claims of the complainant are dismissed.

Reasoning

1. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

Complainant was exempted from duty of military service at the medical examination for conscription, having lost the sight of one eye. Pursuant to the Act on Reporting and Disclosure of Military Service Records of Public Service Personnels and Others(revised on December 31, 2004 through Act No. 7268, hereinafter referred to as 'the Act'), complainant, who is a public official working as policy research commissioner at the National Assembly since March 2005, reported in August of the same year the information concerning his duty of military service. Doing so, pursuant to Article 3 of the Act, complainant had to report the name of his disease that was considered at the time of disposition on his military service, and, pursuant to Article 8 of the Act, this information was printed in the official gazette and posted on the internet.

Hence, the complainant filed this constitutional complaint on November 22, 2005 arguing that the above provisions which mandate reporting and disclosing of even one's disease, Article 9 of the Act which mandates the candidates to public offices to report such information concerning their duty of military service, and Article 65 of the Public Official Election Act (revised on August 4, 2005 through Act No. 7681) which mandates disclosing of military service records of public official candidates, together infringe his constitutional rights such as the right to privacy and the right to freely choose his occupation.

B. Subject Matter of Review

Complainant filed this constitutional complaint against the whole texts of Article 3, 8, 9, of the Act and Article 65 of the Public

Official Election Act. However, the provisions relevant to this complaint can be confined to Article 3 Paragraph 4 Subparagraph b of the Act, which refers to those who are exempt from military service, the main text of Article 8 Section 1 of the Act, Section 1 and the first sentence of Section 3 of Article 9, which refer to the name of disease of government officials of fourth rank or above, and Article 65 Section 7 Paragraph 2 of the Public Official Election Act. Therefore, the subject matter for review is confined to above provisions. These provisions subject to review and related provisions are as follows:

Act on Reporting and Disclosure of Military Service Records of Public Service Personnels and Others(revised on December 31, 2004 through Act No. 7268)

Article 2 (Person Responsible for Reporting)

A government official who falls under any of the following Paragraphs (hereinafter referred to as Person Responsible for Reporting) shall report (including reports via the information and communication network defined by the Act on Promotion of Information & Communication Network Utilization and Information Protection, etc. This is the same for all reports hereinafter.) the military service information concerning the Persons Subject to Reporting as prescribed by Article 3.

4. National government officials or local officials of fourth rank or above in general services, and government officials in special services who receive remuneration equivalent thereto.

Article 3 (Person Subject to Reporting and the Information to be Reported)

Person Responsible for Reporting shall report the military service information prescribed by the following paragraphs concerning himself or his lineal descendants of 18 years or more (hereinafter referred to as Person Subject to Reporting).

1. As for a Person Subject to Reporting who is 18 years old, the information regarding his enlistment in eligible conscription status

1-2. As for Person Subject to Reporting who is subject to conscription or draft physical, the year of draft physical and the decision on disposition of his duty of military service

2. As for Person Subject to Reporting who discharged or is deemed to have discharged his service duties, the field of service, the rank, the serial number(if he is given one), the date of enlistment, the date and cause of discharge or cancellation of conscription

3. As for Person Subject to Reporting who is enlisted in either active, recruit or alternative service, the field of service, the unit or facility he served in, the rank, and the date of enlistment

4. As for Person Subject to Reporting who falls under any of the following Items, military service records (including the name of disease or other grounds for military service disposition.) that cover the term

between the date he received the draft physical and the date he discharged the military duty, each of which is defined by article 11 and 72 of the Military Service Act

a. Person enlisted in disqualified conscription status (including persons deemed to be enlisted in disqualified conscription status. Same for Article 8 Section 3)

b. Person exempted from military service or person removed from military register

c. Person discharged of his service without completing either active, recruit or alternative duty

Article 8(The Disclosure of and Objection to the Information to be Reported)

(1) The chief of the Office of Military Manpower Administration shall, within one month upon receiving the military service records (including information reported to the chief of District Office of Military Manpower Administration pursuant to Article 4 Section 3) from the chief of office handling the reports, disclose the information by printing on the official gazette and posting on the internet: Provided, that a person who has won the election defined by Article 2 of Act on the Election of Public Officials and the Prevention of Election Malpractices, and thus became a Person Responsible for Reporting, may request to alter the date of disclosure of information pursuant to the Presidential Decree.

(2) The chief of the Office of Military Manpower Administration shall, when disclosing the military service records according to above

Section 1, inform the Person Responsible for Reporting to inspect the information to be disclosed via internet or other means. The Person Responsible for Reporting may, if there is any error or omission in the provided information, object to the chief of the Office of Military Manpower Administration during the period of inspection.

(3) When applying for a certificate of military status or reporting the military service records, Person Responsible for Reporting may, in case where his lineal descendant is enlisted in disqualified conscription status or exempted from military duty owing to certain disease or mental · physical incompetence, request non-disclosure of the name of such disease or mental · physical incompetence prescribed by the Presidential Decree. In this case, the chief of the Office of Military Manpower

Administration shall not disclose the said name of disease or the details of mental · physical incompetence.

(4) The period of inspection and other necessary particulars regarding the means and procedure of objection shall be prescribed by the Presidential Decree.

Article 9 (Reporting and Disclosure of Military Service Records of Public Official Candidates)

(1) Person (as for proportional representative members, the political party that nominates) who plans to be government official candidate pursuant to Article 2 of the Act on the Election of Public Officials and the Prevention of Election Malpractices shall report to the Election Administration Commission of his voting district, in writing, 1 month prior to registering as candidate, the military service records prescribed by Article 3.

(3) The Election Administration Commission of said voting district shall disclose the military service records of public official candidates when announcing the candidates' register. The provision of Article 8 Section 3 shall apply here.

Article 65 of the Public Official Election Act (Election Campaign Bulletins)

(7) In case where the book-type election campaign bulletins are submitted in the presidential election and the elections of the National Assembly members of local constituency, the local council members of local constituency and the heads of local governments, the matters (hereinafter in this Article referred to as the "Open Data on Candidates") falling under each of the following paragraphs shall be entered in such book-type election campaign bulletins under the conditions as prescribed by the National Election Commission Regulations. In this case, with respect to matters that need to be clarified from among the Open Data on Candidates, data clarifying such matters may be also entered in the book-type election campaign bulletins

2. Military service records

The ranks, the service periods, the areas of service by the military branch, matters concerning the military service disposition and the grounds for the military service disposition of the candidate and his lineal

descendant (excluding the case where the name of disease or the details of mental and physical incompetence are asked not to be disclosed pursuant to Article 8 Section 3 of the Act on Reporting and Disclosure of Military Service Records of Public Service Personnels and Others.)

2. Reason for the Petition and the Opinions of Related Agencies. (omitted)

3. Review on Justiciability Requirements

A. Petition on Section 1 and the first sentence of Section 3 of Article 9 of the Act, which refer to 'the name of disease of government officials of fourth rank or above', and Article 65 Section 7 Paragraph 2 of the Public Official Election Act

A constitutional complaint may be filed only by person who is infringed his fundamental rights guaranteed by the Constitution due to exercise or non-exercise of public power (Constitutional Court Act, Article 68 Section 1).

The above provisions shall be observed by a person registering as a candidate to government offices or the registered candidates when they submit an election campaign bulletin. However, the complainant does not make it clear whether he plans to be a candidate, let alone

register for a government official election, and does not make any assertion regarding a specific relationship between the above provisions and himself.

Therefore, the petition on the above provisions does not satisfy the requisite of self-relatedness and thus is dismissed.

B. Petition on the part of Article 3 Paragraph 4 Subparagraph b which refers to 'the name of disease of Public Officials of fourth rank or above' of those who are exempt from military service

A constitutional complaint shall be filed within 90 days after the existence of a cause of action is known, or within one year after the cause of action occurs (Constitutional Court Act, Article 69 Section 1).

The Act was revised on December 31, 2004 and entered into force

after a lapse of six months (Addenda of the Act, Article 1). The complainant, who newly became a Person Responsible for Reporting pursuant to Article 2 of the Act, had to report his military service records within one month upon the date of enforcement (Addenda, Article 2). According to the case record, it is ascertained that the complainant reported aforementioned information on August 1, 2005 to the National Assembly Secretariat.

Therefore, the complainant must have recognized the cause of action related to the above provisions, at the latest on the day of reporting. However, he filed this constitutional complaint on November 22, 2005, a date which has passed 90 days since his recognition. The petition exceeded the time limit for filing and thus is dismissed.

C. Petition on the part of the main text of Article 8 Section 1 of the Act which refers to the publication of their own disease names of public officials of fourth rank or above'

The petition on this part satisfies the requisite of self-relatedness, time limit and other requirements for constitutional complaint, and thus is justiciable.

D. Sub-conclusion

Only the petition on the part of the main text of Article 8 Section 1 of the Act which refers to 'the publication of their own disease names of public officials of fourth rank or above' meets the justiciability requirements, and all the rest of the complaints are nonjusticiable and dismissed.

4. Review on Merits

A. Statutory History and the Contents of the Military Service Records Disclosure System

(1)Korean people were shocked to find out the corruption scandals related to the duty of military service, which were revealed by the investigation of the military and the public prosecutor. Most of the

solicitors of the corruption scandals were so-called leaders of society. Thereupon, the National Assembly legislated the 'Act on Reporting and Disclosure of Military Service Records of Public Service Personnels and Others' on May 24, 1999 and enforced it on the same day, in order to prevent unlawful evasion of mandatory military service, enhance moral clarity of government officials, and create a social atmosphere of voluntarily serving the duty by systematically requiring the government officials, candidates, and their lineal descendants to report and disclose the military service records.

The Act was revised on December 31, 2004. The essentials of the revision are as follows: it extended the range of Person Responsible for Reporting from government officials of first rank or above to fourth rank or above who register his or her assets according to the Public Service Ethics Act, in order to enhance the efficiency of the military service records disclosure system; it included the name of disease and other grounds for disposition, on which the final decision on military service is based, as one of the information to be reported; and it required to disclose the information not only by printing on the official gazette but also by posting on the internet so that the public may gain easy access to the information.

(2)

Under the Military Service Records Disclosure System, a

government official of fourth rank or above, being the Person Responsible for Reporting (Article 2 of the Act), is required to report the military service records of his own and of his lineal descendant of 18 years and above (the main text of Article 3 of the Act). If the Person Subject to Reporting is exempted from military service or enlisted in disqualified conscription status, the Person Responsible for Reporting has to report the name of his illness or other grounds for that disposition (Article 3 Paragraph 4 of the Act). The chief of the Office of Military Manpower Administration shall disclose the information by printing on the official gazette and posting on the internet (Article 8 Section 1 of the Act). The Person Responsible for Reporting may request non-disclosure of his or her lineal descendant's name of disease or the details of mental · physical incompetence as prescribed by Presidential Decree. In this occasion, the disclosure of said information is not allowed (Article 8 Section 3 of the Act).

Military records of certain persons engaged in the fields of national security or national defense may not be disclosed (2 of Article 8 of the Act).

Person who breaches the duty of reporting shall be sentenced to 1 year or less of imprisonment or fined 10 million won or less. (Article 17 of the Act)

B. Whether the Rights to Privacy Have Been Infringed

(1) The Restriction on Privacy Rights and the Limits on the Restriction

Article 17 of the Constitution provides all citizens' right to private secrecy and freedom of privacy shall not be infringed, thereby guaranteeing the rights to privacy as a fundamental right. The right to private secrecy is a fundamental right that provides protection against monitoring one's private life by the government, whereas the freedom of privacy implies protection against the government that hinders or prohibits freely forming of one's private life. In concrete, the right to private secrecy and the freedom of privacy include the right to maintain one's inner secrets, the right to be guaranteed of one's inviolability of his or her privacy, the protection of one's intimate area such as sexual or conscientious issues, the right to be respected of one's feelings and the right not to be infringed of one's private life. In short, Article 17 of the Constitution protects freely forming of private life and maintaining of private secrets as the basic right (15-2(B) KCCR 185, 206-207, 2002 Hun-Ma 518, Oct. 30, 2003).

The part of the main text of Article 8 Section 1 of the Act which refers to 'the publication of the disease names of public officials of fourth rank or above' (hereinafter referred to as ‘the statutory provision at issue in this case’) mandates the disclosure of the information concerning one's disease, the information which the government obtained by compelling the duty to report, via the official gazette and the internet. However, the name of one's disease is among one's private information, and hence unilaterally disclosing such information is a restriction on his right to private secrecy and freedom of privacy. The right to private secrecy and freedom of privacy may be restricted by statute in favor of public welfare etc, but only in accordance with the principle of proportionality, which is

the general limiting principle to the restrictions on the constitutional rights (Article 37 Section 2 of the Constitution).

(2) Legislative Purposes of the Military Service Records Disclosure System

Article 1 of the Act provides: This Act intends to prevent unlawful evasion of mandatory military service and encourage practice of voluntarily serving the duty by systematically requiring the government officials, candidates, and their lineal descendants to report and disclose the military service records. In a democratic country, the duty of military service, along with liability to taxation, is bound to be burdened upon the members of that country, so that the nation as a political community can be preserved. That is, promoting national defense by burdening the people with the duty of military service is a constitutional value that is inevitably inherent in a nation as a community. Article 39 of the Constitution manifests such constitutional value that the duty of military service holds (16-2(A) KCCR 195, 202, 2002 Hun-Ba 13, Oct. 26, 2004). Nevertheless, as the frauds and corruptions related to administration of the military service are not being rooted out, the society's need to eradicate such frauds

and corruptions and restore equality in bearing the military duty is great. Especially, as it turned out that many influential members of society are implicated in significant amount of frauds or unjust preferential treatment of military duty, there is a growing national concern over the military duty of people in the leadership class such as high-level officials. Under such circumstances, it is the task of the legislator to seek to secure fair and substantial discharge of the military duty and prevent unlawful evasion of military duty, through adequate regulation and restriction. The Military Service Records Disclosure System that has been introduced, under said circumstances, institutionalized reporting and disclosing of military service records of public officials in attempt to accomplish such legislative tasks.

The accomplishment of said legislative tasks that can be summarized as 'to prevent evasion of military service' and 'to encourage practice of voluntarily serving the duty' depends on such legal, institutional, and cultural factors as the law-abiding spirit of the people, the legislation regulating the duty of military service, conditions of military bases where

people actually serve the duty, situations of the national security. Among these many factors, perhaps the most important is raising rationality of the legal system and realizing fair and impartial administration of the duty of military service. However, other than pursuing these fundamental solutions to the legislative purposes, the legislator may seek additional, supplementary measures as well. When legislating the Military Service Records Disclosure System, the legislators deemed establishing fair administration of the military duty as a pressing national problem to be taken care of. And because of this urgency, providing supplementary measures that develop a social atmosphere of voluntarily serving the duty and thereby indirectly contribute to accomplishing such task, besides pursuing basic and direct measures that inherently consist of fundamental, long-term solution and investment, was deemed essential. This supplementary measure that the legislators came up with is the Military Service Records Disclosure System, and such decision of legislators cannot be held unreasonable.

In order to accomplish said purposes of the legislation, it may be necessary to mandate to report the military service records and disclose such records by proper means. By imposing a duty to report, the government can not only collect such data, but also encourage the law-abiding spirit that leads to voluntarily serving the duty. Also, considering the purposes of the legislation, a report that is not followed by disclosure is not effective. Unless accompanied with the practice of transparently disclosing the reported military service records, the said purposes cannot be expected to be accomplished merely by imposing the duty to report or stating the military service records on an official book.

(3) The Extent and Means of Disclosing the Name of Disease

The the statutory provision at issue in this case does not seek to gather records of one's physical condition, such as the name of disease, regardless of military duty. Rather, disclosing the name of disease is requested as a part of the disclosure of military service records, and is necessary because one's disease is a crucial factor to be considered at the time of disposition of his duty of military service. Among the inspections conducted so as to decide whether the subject is fit for the military service, the draft physical serves as the most important and

initial standard of such classification (Article 11, 12, and 14 of the Military Service Act). Deciding whether the subject should be exempted from duty rests solely upon the grade of the subject's physical fitness, whereas when deciding whether he should be enlisted in active or recruit service, the academic background, age, state of supply and demand of draftee resources for the military service etc. can be considered while maintaining the physical grade as the principal criterion (Article 14 of the Military Service Act). Those who are incapable of military service owing to any disease or mental · physical incompetence shall be judged in Grade 6, and thereby be exempted from duty. Thus, so long as treating the information of those who are exempt from military duty as one to be disclosed, the result of draft physical constitutes the essential part of such information. And stating such result by a mere entry of illness,

mental · physical incompetence or received 6th grade will be insufficient to accomplish the purposes of the Military Service Records

Disclosure System. Therefore, the practice itself, of requesting to report the specific name of disease and properly disclosing such information,

seems necessary.

However, even though such practice is deemed necessary, the meaning and function of the provision of the Constitution that protects private secrecy and freedom of privacy have to be taken into consideration when determining the extent and means of proper disclosure.

Information regarding an individual's mental · physical state, health, or sexual life is a factor that constitutes the essence of his dignity or personality. Therefore, one's innate personality and identity cannot be preserved if such information is easily allowed to be collected and publicized so as to meet certain external interest. The name of disease that is compelled to be disclosed by the statutory provision at issue in this case is a sensitive personal information that is closely related to the intimate privacy. However social being the human might be, that lives in a community along with others, the information regarding one's disease is neither natural nor necessary to be subjected to the formation, transmission, disclosure, and utilization through contact with the external world. Rather, such information normally has to be preserved as an individual's inner privacy, and is not to be disclosed for others to know. This is the same for the government officials. The subject matter of this case is the name of disease which constitutes the cause of exemption from the military duty. And the name of disease is not a piece of

information that is generated in relation to the government official's public activities. Such information rather is imposed on the individual beforehand, regardless of his work as a public servant, and reveals his most private identity once disclosed. There is no doubt that one's disease is an essential factor in disposing his duty of military service, especially in deciding whether he should be exempted from duty, but it was not something that the individual could have chosen otherwise or do something about. Thus, when enforcing a government measure that restricts the right to private secrecy and freedom of privacy by requiring disclosure of such information, a strict criterion and method has to be employed along with delicacy in application.

However, the statutory provision at issue in this case does not take the meaning and function of the basic right to private secrecy and freedom of privacy into consideration when determining the extent and means of disclosing the name of disease. Event though one's disease is a factor that is indispensable in deciding his exemption from the duty, the legislator is responsible to seek ways to minimize the infringement on the subject's privacy that follows such disclosure. There are certain diseases that are close to the essence of one's privacy, and there are those that are not. Setting aside the latter, compelling to disclose the former diseases without distinguishing from the latter is a practice that leaves constitutional intent of protecting the privacy out of consideration.

As seen above, Person Responsible for Reporting is given the right to request nondisclosure of certain diseases, defined by the Presidential Decree, of his or her lineal descendants. And in this occasion, the disclosure of nature of those diseases is not allowed (Article 8 Section 3 of the Act, the attached table of Article 14 Section 1 of the Enforcement, Decree of the Act). The diseases and mental · physical incompetence defined by the Presidential Decree as not to be disclosed if requested, are mostly ones that can grossly infringe the dignity or privacy of the subject (for instance, acquired immune deficiency syndrome, schizophrenia, syphilis, artificial anus). Therefore it is a valid argument that the Person Responsible for Reporting himself, as well as his lineal descendants, should be entitled to protection against the severe infringement on privacy caused by relentless disclosure of such information.

Furthermore, the Military Service Records Disclosure System compels disclosure regardless of whether the decision of exemption from duty was

made unjustly or not, thereby disclosing even the diseases of government officials who were exempted based on a fair judgment. It is unreasonable to impose the duty to disclose even upon those officials who received a fair judgment and to ask them to endure the infringement on privacy and dignity, however gross it may be, for the sole purpose of creating a social atmosphere of voluntarily serving the military duty. Considering the need of protection of such government officials' privacy, and, moreover, the efficiency in running the public office, the statutory provision at issue in this case which discloses private information without proper distinction might decline the morale and loyalty of such officials or deter the concord and unity within the office, and in some cases even result in loss of competent

public servants.

(4) The Range of the Subject of Disclosure

All public officials shall be servants of the entire people and shall be responsible to the people (Article 7 of the Constitution). Therefore, bigger responsibility can be imposed on a government official than on a private person, with respect to discharging the duty of military service, and in this sense, it might be necessary to provide the people with information regarding the public officials' military service. And also, in light of the reality where a special, social need of fairness in disposing military duty and a prevalent distrust in privileges that high-level officials often enjoy exist, such information naturally is subject to keen interest of the general people who hold sovereignty. Considering such public character of said information, the need to protect an individual public official may concede a bit in favor of the need to expose, in some extent, the said information to public as far as such exposure aim to realize the common interest of satisfying the public concerns and enhancing a fair discharge of the military duty.

However, the information that is unilaterally forced to be disclosed by the statutory provision at issue in this case is the name of disease of an individual public official. It is too broad to subject all public officials of fourth rank or above to mandatory disclosure of the name of disease, which is a sensitive, personal information that is close to one's inner privacy. Even though one can easily admit, considering the reality of ours, the social need of renovating the ill custom prevalent in serving the

military duty, through exceptional measures such as disclosing the name of disease, the application of such practice has to be confined only to a few high-level officials who can be inquired of additional responsibility and sacrifice. Government officials of fourth rank are consisted of officials who are at the level of director or section chief, and even if these officials are in charge of on-the-job responsibilities, they do not have the power to make direct, final decision on major policies or projects. Rather, in a general sense of the society, many of said officials are no more than persons engaged in ordinary occupation. Therefore, even in an unusual occasion where the public concern happened to head towards a fourth rank official's military records, such concern is likely to be a relatively low one. And if so, the need to protect the individual public official's information should not be neglected, especially when said information contains such data as the name of disease, which goes to the essence of one's dignity and privacy. Therefore, the legislator should have selected a small number of high-level officials who bear close relation to accomplishing the purpose of the legislation, with regard to the amount of public concern drawn, the degree of public service ethics required, and one's relevance to administration of military service, and mandated only said officials to disclose the name of disease to a proper extent. To say it is permissible to expose information regarding an individual public official's most private disease to the public, neglecting the need of protection such private information deserves, in the name of 'public matter' or 'public concern', is not different from announcing that the right to private secrecy and freedom of privacy will no longer be protected as fundamental right as long as it belongs to a public official.

(5) Sub-conclusion

As seen above, to subject even the public officials of fourth rank, who does not draw a significant amount of public concern, to the disclosure of name of disease without exception, is a policy that puts undue emphasis on realizing the purposes of the legislation and considerably neglects the constitutional need of protecting the privacy, thereby infringes the complainant's and said public officials' right to private secrecy and freedom of privacy guaranteed by Article 17 of the Constitution.

C. Decision of Nonconformity to the Constitution

However, as seen above, as it can be agreed that the Military Service Records Disclosure System is necessary in light of our reality, and so long as one can not conclude that the reporting of the name of disease and disclosing of such information through proper means is certainly unnecessary, it is inappropriate to render a decision of simple unconstitutionality on the statutory provision at issue in this

case. Because if the decision of simple unconstitutionality is rendered, the name of all diseases, in respect to all public officials of fourth rank or higher, will no longer be subjected to disclosure. The unconstitutionality of the statutory provision at issue in this case is in that the prescribed range of the subject public officials or the name of illness is too broad, and it is primarily for the legislator, who hold the legislative-formative power, to decide how to eliminate such unconstitutionality. The legislator may adjust the range of the subject public officials or the name of disease and thus mitigate the restriction on the privacy. One of such adjustment could be, to leave the range of the subject public officials as it is and instead grant the Person Responsible for Reporting himself the right to request nondisclosure of the name of certain diseases, so that he can be protected equally as his lineal descendants. Or the legislator could, while granting all Persons Responsible for Reporting the right to request nondisclosure, initiate a system where the actual nondisclosure is decided by a fair screening that reflects various criteria such as the characters of each official position, the class of each official, the kind of disease etc. If the legislator can come up with a way to better balance the competing interests of the Military Service Records Disclosure System and the protection of privacy, he might as well adopt such device. Therefore, We hereby issue a decision of nonconformity to the Constitution and order that the statutory provision at issue in this case shall continue to apply until the reform bill is enacted. Considering the severe infringement that the statutory provision at issue in this case causes on the right to private secrecy and freedom of privacy, the legislators are obliged to replace the law, and should do so at the latest of December 31, 2007, and if not, the statutory provision at issue in this case shall lose effect from January 1, 2008.

5. Conclusion

As presented below, there are dissenting opinions of four Justices with respect to the statutory provision at issue in this case(opinion of simple unconstitutionality by Justice Lee Kong-hyun, opinion of partial unconstitutionality by Justice Cho Dae-hyen, and opinion of nonconformity with the Order of discontinuing application of the provision at issue by Justice Lee Dong-heub, Justice Song Doo-hwan). Thus, no opinion has got the required passing votes, prescribed by Article 23 Section 2 Paragraph 1 of the Constitutional Court Act, that is required to be met in order to render the decision of any unconstitutionality. However, when adding the number of Justices who hold the opinion of simple unconstitutionality and of nonconformity with the Order of discontinuing application to the number of Justices who rendered the opinion of nonconformity with the Order of continuing application, the sum meets the pass criterion (see Article 40 of the Constitutional Court Act, Article 66 Section 2 of the Court Organization Act), and thereby we issue a decision of nonconformity to the Constitution and order that the statutory provision at issue in this case shall continue to apply.

Therefore, with respect to the statutory provision at issue in this case, we issue a decision of nonconformity to the Constitution and order that the provision at issue shall continue to apply, with the time limit of December 31, 2007, and the remaining claims of the complainant are dismissed as set forth in the Judgment.

6. Opinion of Simple Unconstitutionality by Justice Lee Kong-hyun

I dissent from the majority opinion, and think that a decision of simple unconstitutionality should be issued with regard to the statutory provision at issue in this case.

But for the protection of privacy, the human dignity can hardly be respected and development of one's personality cannot be expected. Thereby, the Constitution, in Article 17, expressly provides the protection of the right to private secrecy and freedom of privacy. The fundamental right in issue in this case is such right to freely form a private sector and to preserve its secrecy. Specifically, the main issue of this case is the unilateral and coercive disclosure by the government of a sensitive

information such as the name of one's disease, which is his private information, a most inner private information at that. Naturally, every person would not approve of others learning about his or her medical information such as data concerning his disease. They would rather keep it confidential. It can

be easily assumed that once the information of one's disease is disclosed in public, he or she might undergo an unrecoverable pain and frustration or face a great difficulty in leading his or her social life. Thus, to guarantee the people's right to private secrecy and freedom of privacy, it would be crucial to protect the information concerning one's disease, keep it confidential and prevent it from being disclosed.

The intervention and restriction that the government exercises with respect to such matter that constitutes the essence of human dignity and personality should be allowed only when deemed indispensable to achieve a crucial public interest, and in deciding whether or not such requisite of indispensability is satisfied or not, a strict criterion and measures should be employed, as rightly pointed out by the majority opinion.

The Military Service Records Disclosure System intends to prevent unlawful evasion of mandatory military service and encourage practice of voluntarily serving the duty (Article 1 of the Act). However, disclosing the name of one's disease does not greatly contribute to the accomplishment of the first legislative purpose, which is to prevent unlawful evasion of military service. Because, not only is there a big time gap between the draft physical and the disclosure of name of disease, but also disclosing the name of one's disease, which is normally the cause of exemption from military duty, does not necessarily mean that an unlawful evasion therefore becomes ascertainable.

This is the same with regard to the second purpose of legislation, which is to 'encourage practice of voluntarily serving the duty', in other words, to create a social atmosphere of voluntarily serving the duty. The argument is that the statutory provision at issue in this case, going so far as to employ means that can severely infringe the sensitive privacy of the Person Subject to Reporting, seeks to 'create a social atmosphere' of voluntarily serving the duty rather than pursuing an objective and definite purpose, for instance, to remove an imminent harm to the public health. However, the fact itself that the statutory provision at issue in this case places restriction on the matter essential to human dignity and personality under the pretense of accomplishing a purpose which for the most part is

indirect and indefinite, raises suspicion as to whether such restriction can be justified. Furthermore, the legislative purpose of creating a social atmosphere of voluntarily serving the duty shall be, as the majority opinion concedes as well, attained by raising rationality of the legal system and realizing fair and impartial administration of the duty of military service. Thus, it is only natural to raise a strong suspicion as to whether a policy, that seeks to create such atmosphere through mental coercion that is brought by disclosing personal information to the general public, contains necessary rationality and suitability.

While the significance or legitimacy of legislative purpose, and the link between the legislative purpose and the means used to accomplish such purpose is uncertain, the harm that is caused by the statutory provision at issue in this case which discloses one's most inner private information in public, via the official gazette and the internet, is manifest and severe.

This argument applies in a case where the Person Subject to Reporting is a government official as well. Even though information belonging to the government officials, as they are the focus of the public concern, is more likely to be disclosed than that of private person, such disclosure will be allowed only when the information is related to the government official's public activities or when there is a need to satisfy the people's right to know. However, as the majority opinion rightly points out, the name of disease, which constitutes the ground to be exempted from military duty, is not a piece of information that is generated in relation to the government official's public activities. It is rather information that reveals his most private identity which is irrelevant to his work as a public official. Also even if there is a growing concern regarding the discharge of the military duty of the influential members of society, it cannot be concluded that all people are entitled to know specifics of a public official's private information concerning his disease or that the Constitution guarantees the people's right to know to such extent.

To conclude, the Military Service Records Disclosure System prescribed by the statutory provision at issue in this case severely and relentlessly infringes the fundamentals of the private secrecy and freedom of privacy, while failing to establish that such measure is indispensable to achieve a crucial public interest, and thereby is

unconstitutional.

I think the Constitutional Court shall assume a firm attitude of issuing a decision of simple unconstitutionality with regard to a system that

infringes fundamental rights by impairing the essentials of human dignity and personality, and hence eliminate such infringement and safeguard the constitutional order. I thereby submit the opinion of simple unconstitutionality.

7. Opinion of Partial Unconstitutionality by Justice Cho Dae-hyen

I think the Court should issue a decision of partial unconstitutionality, because among the range of application set forth in the main text of Article 8 Section 1 of the Act, the unconstitutionality resides only in the part where it requests that the grounds for relief of military duty, including the name of disease, should be disclosed even with respect to the Person Responsible for Reporting and his lineal descendant who are not accounted for receiving an unlawful relief.

A. The Legislative Purpose of Article 8 Section 1 of the Act

As frauds related to military service surfaced, many of which were solicited by so-called leaders of society, the Act on Reporting and Disclosure of Military Service Records of Public Service Personnel and Others was announced and enforced through Act No. 5989 on May 24, 1999 to prevent unlawful evasion of military service. The Act was revised on December 31, 2004 through Act No. 7268, and this revision extended the range of Person Responsible for Reporting as well as the items subject to reporting and disclosing.

Article 3 of the Act prescribes the military service information which the Person Responsible for Reporting defined by Article 2 shall report. This includes: the military status, the results of military service disposition, record of discharge of duty, relief of military duty (enlistment in disqualified conscription status, exemption from military duty, removal from military register, discharge of service without completion of duty) and the grounds for such mitigation (including the name of his disease and other grounds for disposition, on which the final decision on military service disposition is based). The main text of Article 8 Section 1 of the Act provides that all of said military records shall be disclosed through the official gazette and the internet.

In a case where a high-level public official or his lineal descendant

fully discharges the military duty, disclosing such record that shows a full discharge of duty may contribute to elevating people's trust in high-level officials while inducing other's voluntary discharge of the military service, by showing that the high-class official fulfilled his duty of military service pursuant to the Constitution and statutes.

Meanwhile, in a case where a high-level official or his lineal descendant is relieved of his duty, the purpose of disclosing the specifics of the grounds for such relief is limited to that of preventing unlawful evasion of military service. As it is possible that the disclosure of the grounds for relief might induce voluntary discharge of military duty, such effect is neither direct nor certain. Thus, considering the risk that can be occurred by disclosing the grounds for relief of military duty, it is inappropriate to put up a vague intention such as 'to induce voluntary discharge of duty' as a legislative purpose of such disclosure.

The task of properly deciding on the range of high-level officials, whose military service record is subject to reporting and disclosing in order to accomplish said legislative purpose, should be assigned to the legislative power of the National Assembly.

B. The Limits on the Disclosure of Military Service Records

First, in a case where the Person Responsible for Reporting or his lineal descendant fully discharges the military duty, disclosing the military records of such merely shows that he fulfilled his duty of military service pursuant to the Constitution and statutes. In this case, the disclosure will not infringe his right to personality or right to private secrecy.

However, in a case where the Person Responsible for Reporting or his lineal descendant is relieved of his duty, disclosing the grounds for such relief which includes the specific name of disease, does infringe the subject's right to personality (Article 10 of the

Constitution) and right to private secrecy (Article 17 of the Constitution). Therefore in this case, the disclosure shall be performed within the limit set forth by Article 37 Section 2 of the Constitution (Limits on Restriction of Fundamental Rights).

In a case where the Person Responsible for Reporting or his lineal descendant is accounted for receiving an unjust relief, disclosing the information concerning such relief can be deemed necessary and adequate

in accomplishing the legislative purpose of preventing unlawful evasion of military duty. But primarily, the relief of military duty should be presumed to be granted by lawful and fair judgment. Thus, for a disclosure of the grounds for relief of military duty to be justified, it should be performed only when confirmed through due process that the relief was unlawfully granted. However, the main text of Article 8 Section 1 of the Act does not require such confirmation when mandating the Person Responsible for Reporting or his lineal descendant to disclose the grounds for relief of military duty, and thereby neglects the limit on the extent to which a disclosure is permissible in order to accomplish the legislative purpose.

In a case where the Person Responsible for Reporting or his lineal descendant received a legitimate relief (including the cases where it is presumed that the relief is legitimate), it cannot be assumed that disclosing the grounds for such relief which includes the specific name of disease is necessary in accomplishing the legislative purpose of preventing unlawful evasion of military duty. Disclosing the grounds for such relief which includes the specific name of disease even in this case infringes the subject's right to personality and right to private secrecy without the lawful excuse required by Article 37 Section 2. As the fact itself, that one has received a relief of military duty owing to a disease, is information concerning his dignity and private secrecy, it will not be necessary to determine whether said disease, that constitutes the grounds for relief, is particularly a disgraceful one.

Article 8 Section 3 of the Act provides that the Person Responsible for Reporting may, in case where his lineal descendant is relieved ofmilitary duty owing to disease or mental · physical incompetence prescribed by the Presidential Decree, request nondisclosure of suchgrounds for relief. Thus, the infringement on fundamental right might seem to be mitigated to this extent. However, the fact itself that one has requested such nondisclosure is likely to raise suspicion to its sincerity and in result infringes his right to personality, and with respect to the name of diseases that are not prescribed as the subject of nondisclosure, the statutory provision at issue in this case does not ask whether the relief was unlawful or not when mandating the disclosure. Therefore, it cannot be assumed that the unconstitutionality of the main text of Article 8 Section 1 is completely removed with regard to the lineal descendant of the Person Responsible

for Reporting.

C. The Extent of the Declaration of Unconstitutionality

In conclusion, out of the range of application provided in main text of Article 8 Section 1 of the Act, the part which mandates disclosing of the grounds for relief of military duty, including the name of disease, even with respect to the Person Responsible for Reporting and his lineal descendant who are not accounted for receiving an unlawful relief, exceeds the limit set forth in Article 37 Section 2 of the Constitution (Limits on restriction of Fundamental Rights) and violates the right to personality of the subject (Article 10 of the Constitution) and the private secrecy (Article 17 of the Constitution), and thereby is unconstitutional. Other parts are deemed neither unconstitutional nor unconformable to Constitution. Therefore, the Court should issue a decision of partial unconstitutionality, clarifying among the whole main text of Article 8 Section 1 of the Act the part where the unconstitutionality resides in.

8. Dissenting Opinion by Justices Lee Dong-heub, Song Doo-hwan

We agree with the majority opinion in that the statutory provision at issue in this case violates the right to private secrecy and freedom of privacy that the complainant and other related public officials are guaranteed of by Article 17 of the Constitution and is therefore unconstitutional, and that a decision of nonconformity to the Constitution should be issued so as to urge the legislator to adjust the range of the subject public officials or the name of disease and thus

eliminate such unconstitutionality. However, we cannot consent to the majority opinion's decision of ordering that the statutory provision at issue in this case shall continue to apply even after its unconstitutionality has been confirmed. Our dissenting opinion is as follows.

The fundamental right that is confirmed to be violated in this case is the right to private secrecy and freedom of privacy - a typical civil liberty. Moreover, the name of disease which is compelled to be disclosed by the statutory provision at issue in this case is a sensitive personal information that is close to one's inner privacy. The majority opinion too admits that disclosure of such name of disease does severely violate

fundamental right of the complainant and related public officials. However, ordering the statutory provision at issue in this case to continue to apply implicates that the Court is temporarily allowing the unconstitutional state to last, where the statutory provision at issue in this case severely violates fundamental rights. This means that the Court is forcing the complainant and related public officials to accept such infringement on their fundamental rights.

In order to order the continuance of application while issuing a decision of nonconformity to Constitution, an important constitutional value or interest should be present, that overrides the need of protecting the complainant and related public officials' fundamental rights and necessitates, despite the aforementioned unconstitutional state, the continuance of application of the statutory provision at issue in this case. If not, at least a crucial legal gap should be present, a gap that cannot be tolerated in a law-governed country, along with the need to prevent disorder likely to be caused by that gap (11-2 KCCR 383, 417, 97 Hun-Ma 26, Oct. 21, 1999; 12-2 KCCR 167, 186, 97 Hun-Ka 12, Aug. 31, 2000).

However, it does not seem that there is any crucial constitutional value or interest that necessitates the continuance of application of the statutory provision at issue in this case, and neither does the majority opinion provide any. Also, the legal gap that might occur due to suspension of the statutory provision at issue in this case is merely that 'name of all diseases, in respect to all public officials of fourth rank or higher, will no longer be subjected to disclosure'. A legal gap as minimal as such is a mere temporary and partial obstacle in accomplishing the legislative purpose, which inevitably follows a decision of unconstitutionality, and is hardly expected to cause a disorder that cannot be tolerated in any law-governed country. Furthermore, as such obstacle only lasts temporarily until the law is replaced, the legislator is constitutionally allowed to, at any time, enact a law that may once again disclose the name of disease with regard to all public officials whose name of disclosure can be justified.

If so, it is unreasonable for the majority opinion to order continuance of application of the statutory provision at issue in this case despite the fact that, even though suspended, only a temporary and partial obstacle is expected to be present and there is no clear risk of resulting in either a

legal gap that cannot be tolerated in a law-governed country or a disorder likely to be caused by that gap. If one is to say that it is permissible to force someone to accept the state of unconstitutionality with the pretense of such minimal obstacle in accomplishing the legislative purpose, the order of continuance of application will be issued with respect to most provisions that actually infringe fundamental rights with severity as well. It is doubtful that this is a practice that the Constitutional Court should employ in order to fulfill its task and function as an institution that seeks to protect the constitutional order and fundamental rights of the people from unconstitutional provisions.

As our Court has repeatedly emphasized whenever issuing a decision of nonconformity, it is a natural constitutional request to remove a provision that is deemed unconstitutional and thereby retrieve the Constitution's position as the founding principle, and even in cases where a decision of nonconformity is issued due to an exceptional circumstance, the general rule is to render such decision on the premise that the application of the provision in issue will be suspended. The decision of nonconformity is one sort of the decision of unconstitutionality, in that it too is a decision that confirms a provision's unconstitutionality, and thus is accompanied by an effect of suspension of so declared provision. Such effect of suspension is a natural consequence of the request of a law-governed country, and is based on the manifest principle that all branches of government shall not commit an unconstitutional conduct by applying the provision or

executing pursuant to the provision once it is declared unconstitutional, regardless of the form of the decision of unconstitutionality. It follows that when a decision of nonconformity is issued, the subject unconstitutional provision shall be suspended, and the public offices and the courts shall suspend the pending proceedings until the law is replaced. Moreover, as the legal effect the suspension of an unconstitutional provision and pending proceedings - that accompanies the decision of nonconformity is an essential factor that is inherent in such decision, the courts need not to even manifest the order of suspension when issuing a decision of nonconformity. Even if such order is manifested, it is no more than confirming the effect of suspension that naturally follows. In the contrast, when ordering continuance of application, the courts must state the temporary application of an unconstitutional provision.

Of course, it cannot be disputed that in an exceptional case - where it is necessary to protect a constitutional value or interest, which is so crucial that it pales the severity of an unconstitutional state where the provision in issue is temporarily applied, and justifies not resorting to the legal gap even if such gap is lawful, or where continuance of application is inevitable to prevent a serious legal gap and the disorder likely to ensue, which cannot be tolerated in a law-governed country - the legislator shall order the provision to be applied temporarily until the law is replaced, even if unconstitutional. Still, such order of continuance of application that follows a decision of nonconformity is an exceptional one, and therefore should be allowed only after fully inquiring into whether or not an excuse exists, that clearly justifies not abiding by the general rule of suspension. With respect to the statutory provision at issue in this case, such exceptional excuse cannot be found.

For above reasons, we do agree that a decision of nonconformity shall be issued, but dissent in that the decision should be rendered with an order of suspension of application, rather than continuance of application.

Justices Lee Kang-kook(Presiding Justice), Lee Kong-hyun(Could not sign and seal due to absence), Cho Dae-hyen, Kim Hee-ok(Assigned Justice), Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan