Case on Disciplinary Exercise in the Military

[1 KCCR 309, 89Hun-Ma56, October 27, 1989]

A. Background of the Case

In this case, the Court questioned the military prosecutor's decision to exempt, and not dismiss, a charge that clearly lacked the grounds for suspicion, and reviewed whether the decision infringes upon the right to equality and the right to pursue happiness. The Court, for the first time, recognized the right to pursue happiness as a concrete constitutional right and cancelled the exemption of prosecution.

The complainant, a sergeant, was receiving bayonet training from a petty officer who had less years of seniority. For not participating in the training diligently, the instructor administered disciplinary exercise on the trainees. The complainant, together with a corporal, disobeyed the order and a fight ensued. The complainant was injured in the eye in the fight and was later discharged from military service for reason of physical disability. Later, the military police arrested and investigated the complainant on charges of insubordination, for disobeying the exercise order. The military prosecutor, on receiving the case from the military police, acknowledged that the complainant did disobey a lawful order of a superior officer and, after considering all the circumstances, disposed of the insubordination charge by exemption of prosecution.

The complainant filed a constitutional complaint on the grounds that the military prosecutor had infringed his fundamental rights by issuing an exemption decision, which is substantively a finding of guilt, even when his disobedience clearly did not constitute a crime of insubordination.

B. Summary of the Decision

The Court struck down the military prosecutor's decision of exemption of prosecution after giving concrete effects to the right to pursue happiness as follows.

When the prosecutor places a clearly innocent man on exempted prosecution arbitrarily or as a compromise, such act constitutes a discriminatory exercise of governmental power prohibited by the Constitution. Also, since exemption is tantamount to a finding of sufficient basis for suspicion, it may put the accused

at disadvantages, legal or factual, and cause him harms, tangible or intangible, in his social life. Therefore, the arbitrary disposal of a case by exemption constitutes infringement of Article 10 of the Constitution, which prescribes the right to pursue happiness.

The disciplinary exercise order of the bayonet training instructor was not only beyond the scope of his authority as a bayonet instructor but also violated the procedures applicable to disciplinary exercises in contravention of due process of law. The order itself amounted to cruelty not permitted under disciplinary exercise regulations, and thus does not constitute a lawful order of a superior officer, one of the elements of the crime of insubordination.

In short, the military prosecutor's decision to exempt, and not dismiss, the charge of insubordination in this case where the complainant failed to obey the petty officer’s disciplinary exercise order infringes upon the complainant's right to equality and the right to pursue happiness.

C. Significanceof the Decisionand Aftermath of the Case

The Court's decision was the first to strike down a decision to exempt prosecution. It also clearly announced that disciplinary exercises administered in contravention of due process constitute cruel treatment. Also, it was the first decision since the establishment of the Court to recognize the right to pursue happiness as a concrete constitutional right. While recognizing the right to pursue happiness, the Court did not clearly elaborate the content and constitutional role of that right in this case. However, in the ensuing cases, i.e., 89Hun-Ma204 announced on June 3, 1991, and 90Hun-Ba23 announced on April 14, 1992, the Court added more content by ruling that the right to pursue happiness included the general freedom of action and the right to free development of personality, and also that the freedom of contract is derived from the general freedom of action.