[1] Whether a soldier’s exercise of his/her right to a trial, such as a constitutional complaint, against his/her superior’s instructions and orders, constitutes a violation of the soldier’s duty to obey

[2] Whether Article 24 and Article 25 of the former Military Service Rule impose a duty on a soldier to make a proposal or request a review of grievance on a soldier, or whether it can be deemed that it has the meaning as a prior procedure in the military to be necessarily required prior to the exercise of a soldier's right to request a trial (negative)

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

[1] [Majority Opinion] In light of the special characteristics of the military that requires the establishment of a command command system by a well-known uniform, a soldier must obey a superior’s order. Article 23(1) of the former Military Service Rule (amended by Presidential Decree No. 21750, Sep. 29, 2009) provides for the same purport. In cases where a soldier exercises a right to a trial against a superior’s instruction or order with a general duty to obey, a soldier’s right to a trial may appear in the form of conflict with a soldier’s duty to obey.

However, non-compliance with a superior’s instruction or order and exercising a superior’s right to a trial on the ground that it is illegal and unconstitutional ought to be distinguished. A court or the Constitutional Court’s filing of a legal judgment does not directly violate a superior’s instruction or order, and even after the commencement of trial proceedings, it is difficult to see that the exercise of the right to a trial directly causes serious harm or confusion to the military. As long as a soldier complies with a superior’s instruction or order, it cannot be deemed that the soldier filed a lawsuit or filed a constitutional complaint against his/her superior’s instruction or order does not necessarily mean that he/she expressed his/her superior’s intent to refuse to comply with the superior’s instruction or order. In the past, a soldier’s claim for a judicial review against his/her superior’s instruction or order ought to be considered as a defeasible or anti-consible act, and the attitude that extremely refuses to trial on all state powers ought to be contrary to the principle of a rule of law allowing a judicial review.

Therefore, in a case where a soldier exercises his/her right to a trial against a superior’s instruction or order, it is only intended to correct an unlawful or unconstitutional order and order, and it does not destroy a superior relationship inside the military, take the right to a trial against the external appearance of the right to a trial as a means of appeal, or otherwise do not intend to do so, it cannot be deemed a soldier’s violation of his/her duty to obey a judgment, since it is the exercise

[Dissenting Opinion by Justice Ko Young-han, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik] There is no room for dispute over whether all citizens, including soldiers, have the right to trial under the Constitution. However, the right to trial is not absolute and unlimited, as well as the right to trial is not absolute and unlimited, and if the exercise is intended, purpose, or method of exercising the right to trial, then the executor may be subject to

As long as an order by a military commander is not clearly unlawful, a subordinate has a duty to obey such order in accordance with the service discipline. However, if a disadvantage arises due to a superior’s non-compliance with a superior’s order, a subordinate must first endeavor to take a serious effort for internal resolution in accordance with the Military Service Rule, and if the solution is not reached, other remedy methods prescribed by the Act should be sought. If it is justified for a soldier to attempt to resolve disadvantage at any time through relief procedures by the army and other national agencies as provided by the Act and subordinate statutes, at any time, at will, if it is justified for a soldier to attempt to resolve disadvantage through relief procedures by the army and other national agencies as provided by the Act and subordinate statutes, the organizational power of the national army is too excessive, and any risks therefrom will be left by the entire people.

[2] [Majority Opinion] Articles 24 and 25 of the former Military Service Rule (amended by Presidential Decree No. 21750, Sept. 29, 2009; hereinafter “former Military Service Rule”) enacted by delegation of the former Military Personnel Management Act (amended by Act No. 10703, May 24, 201) provide for consideration of grievances and suggestions. The above provisions may be recommended to their superior officers according to the command system where they are beneficial or legitimate in the military (Article 24(1) of the former Military Service Rule). Where it is determined that the aforementioned provisions were unfairly treated, considerably inconvenience or disadvantage, a request for consultation, recommendation, or grievance review may be made according to the command system (Article 25(1) of the former Military Service Rule). Thus, construing that the provision imposing obligations to make a request for recommendation or grievance review on a military person is beyond ordinary meaning of the language and text, and thus, it is difficult to view that the above provisions were unlawful or unreasonable prior to the exercise of a military personnel’s authority’s right to make a proposal or review.

[Dissenting Opinion by Justice Ko Young-han, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik] There is no reason to narrowly interpret the meaning of the former Military Service Rule as stated in the Majority Opinion. As we agree with the Majority Opinion, as regards the fundamental rights of military personnel, restrictions may be relatively aggravated than those of the general public to the extent necessary to achieve the purpose of existence of the military organization. Considering the special characteristics of the military organization that has the structure of the above-mentioned uniform uniform in order to ensure national security and achieve the mission of defending national land, the parts closely related to the military service and military life and mental power are areas where the legal enforcement authority can recognize the independent discretion. Therefore, it is difficult to view that demanding a thorough observance of the principle of statutory reservation with regard to the above area is reasonable. No specific behavior rules pertaining to military service cannot be specified in the Military Service Rule, and the relevant provisions cannot be said to be inconsistent solely on the ground that they are not specified in detail. Even if the right to request a trial is not stipulated in advance as to the resolution of grievances related to military service, as long as such proposal or interpretation cannot be sufficiently made prior to resolve the external discipline.

[3] [Majority Opinion] Article 13(1) of the former Military Service Rule (amended by Presidential Decree No. 21750, Sep. 29, 2009; hereinafter “former Military Service Rule”) provides that “A soldier shall not engage in any collective action for any activity other than military service.” Here, “collective action for any activity other than military service” means a group of persons with a specific aim that undermines the essence of military service, such as undermining military discipline or violating this part.

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

[Dissenting Opinion by Justice Ko Young-han, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik] The term “collective act for the work other than military service” refers to an act committed by many people for a specific purpose that undermines the essence of military service, such as undermining military discipline or violating this part of military service as soldiers, and refers to an act in a situation where it does not reach the formation stage of an organization. Such an act does not need to be continuous, and it does not need to be organized to the extent that it

In addition to the purport of the provision on the recommendation of opinions on grievances related to military service under Article 25(4) of the former Military Service Rule and the command system under Article 24(1) of the same Act, a soldier’s filing of a petition, collective signature, or group of trials, which is jointly conducted by the soldiers, may appear as a collective resistance, and may not be permitted on the ground that it may directly interfere with the military discipline. Therefore, even if a judicial litigation, such as filing a constitutional complaint, constitutes the exercise of a right under the Constitution and laws, even if it constitutes an exercise of a right by the Constitution and laws, it may be assessed as a collective action in certain cases as a violation of Article 13(1) of the former Military Service Rule, comprehensively taking into account individual and specific circumstances, such as the intent and circumstance at which a judicial litigation is held collectively, the content and degree of the dispute, the impact of the dispute on the military discipline, and whether the result was or was known in advance.

[1] Articles 27(1) and 37(2) of the Constitution of the Republic of Korea; Article 47-2(s) of the former Military Personnel Management Act (Amended by Act No. 10703, May 24, 201); Article 4 subparag. 4 of the former Military Service Rule (Amended by Presidential Decree No. 21750, Sep. 29, 2009; see Article 2 subparag. 1 of the current Enforcement Decree of the Framework Act on the Status and Service of Military Personnel); Article 23(1)(s) of the former Act / [2] Articles 27(1) and 37(2) of the Constitution of the Republic of Korea; Article 47-2(s) of the former Military Personnel Management Act (Amended by Act No. 10703, May 24, 201); Article 4(1)4 of the former Military Service Rule (Amended by Presidential Decree No. 21750, Sep. 29, 2009)

[1] Supreme Court Decision 99Do636 Decided April 23, 1999 (Gong199Sang, 1100) / [2] Constitutional Court en banc Decision 2008Hun-Ma638 Decided October 28, 2010 (Hun-Ma169, 1927) / [3] Supreme Court Decision 90Nu4839 Decided April 23, 1991 (Gong191, 1514)

Plaintiff

Minister of National Defense and one other

Seoul High Court Decision 2012Nu20658 decided November 6, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case principal details

A. On July 15, 2008, the Minister of National Defense was reported by the Armed Forces Commander on July 15, 2008 by the Minister of National Defense that the Korea Federation of the Korean University Students Association of the Armed Forces promoted 23 categories of “the campaign for sending cultural books” in order to strengthen anti-government and anti-U.S.-government-con

On July 22, 2008, the Minister of National Defense issued to the Chief of Staff of each service branch and the commander of each service unit to take measures to prevent the entry of 23 books into the military unit (hereinafter “instant order”). The Chief of Staff of the Army issued a direction on July 24, 2008 to the subordinate commander of the military unit with the same content.

B. On October 22, 2008, six military advocates including the Plaintiff (hereinafter “Plaintiff”) filed a constitutional complaint seeking confirmation of unconstitutionality under the instant order and the former Military Personnel Management Act (amended by Act No. 10703, May 24, 2011; hereinafter “former Military Personnel Management Act”; hereinafter “Military Personnel Management Act”) and Article 47-2 of the former Military Service Rule (amended by Presidential Decree No. 21750, Sept. 29; hereinafter “Military Service Rule”) and Article 16-2 of the former Military Service Rule (amended by Presidential Decree No. 21750, Sept. 29, 2009; hereinafter “Military Service Rule”). This fact was widely reported to the press.

C. On March 18, 2009, the Plaintiff et al. was subject to disciplinary action on the grounds that the Plaintiff et al. filed a constitutional complaint against the instant order without undergoing the recommendation procedure through the chain of direction, thereby disrupting military discipline. Of them, the Plaintiff, et al. led the filing of the constitutional complaint, who was dismissed and enlisted in the military and was subject to expulsion

D. In a lawsuit seeking the revocation of a disciplinary action filed by the Plaintiff, etc. on April 15, 2009, the removal disposition against the Plaintiff was revoked on the ground of an error of deviation from and abuse of discretionary power (Seoul Administrative Court Decision 2009Guhap14781), and the appellate court became final and conclusive at the appellate court (Seoul High Court Decision 2010Nu15614). On October 20, 201, the Chief of Staff of the Army disciplinary action against the Plaintiff for one month of suspension from office due to the same disciplinary cause (hereinafter “instant disciplinary action”), and the Minister of National Defense ordered the Plaintiff on January 18, 201, the Minister of National Defense (hereinafter “instant discharge order”).

2. The judgment of the court below

The lower court determined that both the instant disciplinary action and the discharge disposition premised on it were lawful on the following grounds.

A. In light of the contents and purport of Articles 23(1), 24(1), 25(1), and 25(4) of the Military Service Rule, even if a soldier has any different opinion on a superior’s instruction or order, it is reasonable to view that a soldier’s demand resolution outside the military through the chain of command is prohibited, barring any special circumstances, to make a proposal to his superior as to the unconstitutionality of the instant order before filing a constitutional complaint with the Plaintiff, etc., and immediately file a constitutional complaint with the Constitutional Court, which is an external institution of the military, without making due effort for discussion and correction thereof, constitutes a violation of Articles 4 and 24(1) of the Military Service Rule (the first ground for disciplinary action).

B. The filing of the instant constitutional complaint jointly by the Plaintiff et al. constitutes a violation of Article 13(1) of the Military Service Rule prohibiting “collective action for any purpose other than military service,” which is an act committed by a large number of persons with a specific aim to undermine the discipline of military service as soldiers (the second disciplinary ground).

C. The Plaintiff, without obtaining permission from the Minister of National Defense, has his/her attorney appointed for filing a constitutional complaint interfered with the public trust in the military by having his/her attorney conduct an interview with the press related to the instant constitutional complaint. This constitutes a violation of Article 17 of the Military Service Rule, Article 22 of the former Directive on the Promotion of Military Defense (wholly amended by Ministry of National Defense Directive No. 1880, Feb. 15, 2016; hereinafter “Regulation on the Promotion of National Defense”), and Article 9 of the Military Service Rule, which provides for the duty to maintain the dignity of soldiers, where a soldier intends to publicly announce the matters pertaining to national defense and military affairs in the military, or to engage in external activities on behalf of the military or in the status of soldiers (the third disciplinary ground).

3. As to the ground of appeal on the instant disciplinary action

A. As to the violation of the duty to obey

1) The remainder of the disciplinary grounds other than the third disciplinary grounds related to an interview with the press following the filing of the instant constitutional complaint are keyly that the Plaintiff, etc.’s filing of the constitutional complaint with respect to the instant order violates the soldier’s duty to obey the instant order. In addition, the first disciplinary ground emphasizes that the filing of the constitutional complaint by multiple military advocates constitutes a collective action outside the military affairs organization.

Therefore, first, after examining whether the soldier's exercise of the right to trial, such as constitutional complaint against instructions and orders of his superior violates the soldier's duty to obey, the soldier's right to trial is legitimate by the above disciplinary cause.

2) Article 27(1) of the Constitution guarantees the right to a trial, including the right to a constitutional trial, as a fundamental right of the people. Article 37(2) of the Constitution provides that all freedom and rights of the people may be restricted by law only in cases where it is necessary for national security, maintenance of order, or public welfare, but even in cases where it is restricted, the fundamental contents of freedom and rights may not be infringed upon. Meanwhile, inasmuch as military personnel have a special relationship, which is a member of a military organization directly with the aim of ensuring the existence and security of the State, the basic rights may be more restricted than those of the general public to the extent necessary to achieve the purpose of existence. However, in such a case, the principle of statutory reservation and the principle

3) A soldier must obey a superior’s order, in light of the special characteristics of the military unit that requires the establishment of a command command system by a superior uniform. Article 23(1) of the Military Service Rule provides for the same purport. In the event a soldier exercises a right to a trial against a superior’s instruction or order with a duty of general obey, the right to a trial may appear in the form of conflict with a soldier’s duty of obey.

However, non-compliance with a superior’s instruction or order and exercising a superior’s right to a trial on the ground that it is illegal and unconstitutional ought to be distinguished. A court or the Constitutional Court’s filing of a legal judgment does not directly violate a superior’s instruction or order, and even after the commencement of trial proceedings, it is difficult to see that the exercise of the right to a trial directly causes serious harm or confusion to the military. As long as a soldier complies with a superior’s instruction or order, it cannot be deemed that the soldier filed a lawsuit or filed a constitutional complaint against his/her superior’s instruction or order does not necessarily mean that he/she expressed his/her superior’s intent to refuse to comply with the superior’s instruction or order. In the past, a soldier’s claim for a judicial review against his/her superior’s instruction or order ought to be considered as a defeasible or anti-consible act, and the attitude that extremely refuses to trial on all state powers ought to be contrary to the principle of a rule of law allowing a judicial review.

Therefore, in a case where a soldier exercises his/her right to a trial against a superior’s instructions or orders, the purpose is only to correct illegal and unconstitutional orders and orders, and, unless a soldier destroys a superior relationship inside the military, takes the outside form of the right to a trial as a means of appeal, or otherwise does not intend to do so, it shall be deemed as a legitimate exercise of fundamental rights, and thus, a soldier’s breach of his/her duty to obey a military soldier’s order

4) The instant order is to restrict “the freedom of reading books,” which is the basis of the freedom of learning and thought, which is the core of mental freedom. However, the books prohibited by the Defendant’s entry cannot, instead, be deemed as either impairing the nation’s existence and safety and a free democracy system or seriously impeding military personnel’s mental strength. Rather, the books which are accepted as a superior cultural book in society, such as those selected by academic organizations or media as good-quality cultural book. Therefore, the instant order may have concerns over being unconstitutional by excessively infringing military personnel’s mental freedom. Accordingly, according to the record, the Plaintiff, etc. claimed the instant constitutional complaint in order to view the instant order as being subject to the decision of the Constitutional Court, which is a method stipulated by the law, and there is no other materials to deem that there was any other purpose or intent. In light of the situation that the Korean Federation of University Students’ Association sent the instant order to strengthen anti-government and anti-government projects to the head of the military, but it does not seem to have caused damage to the culture system at the time of the instant order.

5) In light of the foregoing circumstances in light of the legal principles as seen earlier, barring any special circumstance to deny the substance of the exercise of rights, the act of the Plaintiff, etc. filing a constitutional complaint against the instant order can be deemed an exercise of rights permissible by the Constitution and laws, and it cannot be deemed that it violates a soldier’s duty to obey.

B. As to the existence of a prior recommendation obligation

1) As seen earlier, Article 27 of the Constitution guarantees the right to trial as one of the fundamental rights, and in light of the principle of the rule of law, which declares the legal reservation as the method of restricting the fundamental rights pursuant to Article 37 of the Constitution, a disciplinary action against a soldier must have the legal basis for restricting the exercise of such right to trial when the disciplinary action against a soldier was exercised. In addition, such legal provisions are followed by a disciplinary action against a soldier. Considering that disciplinary action against a soldier is not subject to criminal punishment, it shall be sufficient to make clarity to the extent that it is possible to determine his/her behavior by preventing the person having authority over disciplinary action and predicting what is prohibited and what is permissible. However, it is not permissible to regard the disciplinary action as a norm of obligation, which serves as the basis for the disciplinary action.

2) Articles 24 and 25 of the Military Service Rule, enacted upon delegation by the Military Personnel Management Act, provides for a proposal and grievance review. The above provisions may make a proposal to his superior according to the command system, where there is a favorable or justifiable opinion in the military (Article 24(1) of the Military Service Rule), and where it is determined that there is a state of unfair treatment, unreasonable inconvenience, or disadvantage, a request for counseling, recommendation, or grievance review may be made according to the command system (Article 25(1) of the Military Service Rule). Thus, interpreting the provision that imposes a duty on a soldier to make a proposal or grievance review is beyond the ordinary meaning of the language and text. Furthermore, in light of the language and structure of the relevant statutes, the purport of the proposal system is to ensure the legality and validity of the order by allowing a superior officer to present his opinion about the mistake or error of the person having authority prior to the implementation of the order, and it is difficult to view it as a procedure in advance to exercise a soldier’s right to demand a trial.

3) Article 25(4) of the Military Service Rule, which the lower court deemed as one of the grounds for the duty of advance recommendation, provides that “A soldier shall not request a military person to resolve grievances related to military service through petition, collective signature, or other means that are not prescribed by law.” This means that a soldier imposes an obligation on the military person to not resolve grievances, such as disadvantageous disposition related to military service, through “other means that are not prescribed by law.” This means that a soldier must resolve matters related to military service by “the methods prescribed by law” if interpreted contrary thereto. Moreover, there is no room for doubt that the method is representative of the method prescribed by law, such as a constitutional complaint, is exercising the right of trial.

4) Therefore, it is difficult to view that the provisions of Articles 24 and 25 of the Military Service Rule alone have the obligation to submit the instant constitutional complaint to the Plaintiff prior to filing the instant constitutional complaint, and thus, it cannot be viewed as the grounds for disciplinary action that the Plaintiff violated the duty of prior filing.

C. As to the violation of prohibition against collective action outside the military service

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

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

2) As seen earlier, in light of the details and situation at the time of the filing of the instant constitutional complaint by the Plaintiff, etc., the filing of the constitutional complaint jointly by the Plaintiff, etc., a military advocate, cannot be deemed as a collective act for a specific purpose detrimental to the essence of military service, such as undermining the discipline of military service or violating the principal portion.

3) Ultimately, we cannot find that the Plaintiff violated its duty to obey through a collective action prohibited under Article 13(1) of the Military Service Rule.

D. As to the violation of laws and regulations on public relations and the duty to maintain dignity

1) The lower court determined that the Plaintiff violated Article 17 of the Military Service Rule and Article 22 of the Military Service Directive by recognizing that the Plaintiff’s act of interviewing with the media was an external activity without the permission of the Minister of National Defense, and that the Plaintiff violated Article 17 of the Military Service Rule and Article 22 of the Military Service Directive, by recognizing that the Plaintiff’s act of interviewing with the media was an external activity without the permission of the Minister of National Defense.

2) However, there is no ground to view the act of the attorney of the instant constitutional complaint as the Plaintiff’s act of responding to an interview on the case he accepted, and as well as the Plaintiff did not directly engage in any act of contact with the media, such as an interview, and thus, it cannot be deemed as a violation of the duty of compliance with the law on public relations.

In addition, insofar as it is difficult to deem that the Plaintiff publicly announced the opinion that impregnishs the measures of the Ministry of National Defense, or slanders and insults the military brain, even if the Plaintiff’s attorney had an interview with such intent, it cannot be deemed as a violation of the Plaintiff’s duty to maintain the dignity.

3) Therefore, this part of the grounds for disciplinary action is not recognized.

E. Sub-decision

The lower court recognized that the Plaintiff’s failure to comply with the direction system prior to filing a constitutional complaint under the relevant provisions of the Military Service Rule constitutes a violation of the duty to obey statutes, and determined that the instant constitutional complaint constitutes a violation of the duty to obey as a group act other than military service, and that the Plaintiff’s act of complying with the interview of the press after the filing of the constitutional complaint constitutes a violation of the duty to observe statutes and to maintain dignity. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of grounds for disciplinary action under the Military Personnel Management Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds

4. As to the ground of appeal on the instant disposition of discharge

A. According to the reasoning of the lower judgment and the record, the Plaintiff was transferred to the Military Personnel Management Act, Article 37(1)4 of the Military Personnel Management Act, Article 49(1)2 of the Enforcement Decree of the Military Personnel Management Act, and Article 56(2)2, Article 57 subparag. 2, and Article 7 subparag. 7 of the Enforcement Rule of the Military Personnel Management Act, on the grounds that the instant disciplinary action was imposed pursuant to heavy disciplinary action, etc., and the Investigation Committee cited the grounds for disciplinary action, which served as the basis of the instant disciplinary action, as “unconformity details,” and the Investigation Committee reported the existence of grounds for non-conformity with active duty service, and ultimately, reported to the Plaintiff on the existence of grounds for non-conformity with active duty service, following deliberation by the Military Personnel Management Committee.

B. However, insofar as the instant disciplinary cause is not recognized as seen earlier, it cannot be acknowledged that the same details of the instant disciplinary cause are inappropriate. Therefore, the instant discharge disposition based on the details of inappropriate facts is unlawful. Therefore, the grounds for appeal pointing this out are also justifiable.

5. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Ko Young-han, Justice Jo Hee-de, Justice Park Sang-ok,

6. Dissenting Opinion by Justice Ko Young-han, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik

A. The Majority Opinion does not recognize all of the grounds for the instant disciplinary action, and further, even if the details of the instant disposition on discharge are the same as those of the grounds for the disciplinary action, the lower court erred by misapprehending the legal doctrine on the establishment of the grounds for the disciplinary action under the Military Personnel Management Act. However, the lower court’s judgment erred by misapprehending the legal doctrine on the establishment of the grounds for the disciplinary action under the Military Personnel Management Act. However, the Plaintiff et al. did not obey a legitimate order of his superior, and did not collectively file a constitutional complaint against a large number of soldiers, and did not act outside the military service by collectively filing a constitutional complaint, and thereby impairing the dignity of military personnel during the process of notifying the same to the outside of

B. The mission and status of the Armed Forces under the Constitution

Article 5(2) of the Constitution imposes on the armed forces the duty of national security and the duty of national defense to ensure the safety, freedom, and happiness of our and our descendants, while Article 6(2) imposes on the armed forces the duty of national security, the President is responsible for preserving the independence and territory of the State, preserving the territory of the State, and protecting the Constitution. Article 39(1) imposes on all citizens the duty of national defense under the conditions as prescribed by Act.

As such, the Armed Forces is based on the existence of the State, and thus, should maintain the optimal military force and perform its duty of guaranteeing national security and defending national land, and should not use the force in any act other than military service. Furthermore, given that a soldier is in a special status relationship as a member of a military organization with the aim of directly performing his/her mission upon such constitutional request, fundamental rights may be restricted to the extent necessary to achieve the purpose of existence. On the other hand, for soldiers who died or were wounded on duty while performing the duty of guaranteeing national security and defending national land, the State grants due honorable treatment and compensation for their sacrifice and contributions in accordance with the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State.

C. As to the violation of the duty of obey and advance recommendation

1) Article 74 of the Constitution of the Republic of Korea provides that the President shall pass over the armed forces of the Republic of Korea as prescribed by the Constitution and laws (Paragraph 1), and the organization and organization of the armed forces of the Republic of Korea shall be determined by Act (Paragraph 2). Article 8 of the Act on the Organization of the Armed Forces, which stipulates the organization and organization of the armed forces, provides that the Minister of National Defense takes charge of military matters under the order of the President, and the Minister of National Defense directs and supervises the Chairman

Therefore, the President and the Minister of National Defense, etc. shall command and supervise the national armed forces to perform the responsibilities of national security and national defense, and the national armed forces shall have unity and unity so as to perform their duties, and have a systematic and strong power. For this reason, the national armed forces are based on a strict relationship based on a rank system. The act of protesting against a superior’s order in the military organization is impossible to perform the duties of the military, and ultimately may pose a serious threat to the existence of the military itself. Thus, the duty to obey a superior’s order should be emphasized above all in the military sector as it is for the fulfillment of the constitutional duties of the military.

2) Articles 44 and 47 of the Military Criminal Act criminal punishment against a person who fails to obey or violates a legitimate order of his/her superior. Article 47-2 of the Military Service Rule by delegation of Article 47-2 of the Military Personnel Management Act provides that “The best to put up a military flag is voluntary observance and obey of laws, regulations, and orders for military service, and therefore military personnel shall be subject to the order of his/her superior and shall be subject to the order of his/her superior, and the matters ordered shall be carried out promptly and correctly.”

In addition, Article 24(1) of the Military Service Rule provides, “A soldier shall always respect his/her superior’s intent and obey it, even if his/her superior makes a decision different from his/her own opinion,” and Article 25(4) provides, “A soldier shall not request an external resolution of grievances related to military service through filing a petition, collective signature, or other means not stipulated in law.” Meanwhile, Article 51-3(1) of the former Military Personnel Management Act provides, “An officer, warrant officer, or noncommissioned officer may request consultation on or investigation of grievances related to working conditions, personnel management, and personal affairs, and shall not be disadvantageously punished or treated on account of such request.”

These regulations are necessary to fulfill the constitutional duties and mission given to military personnel. Therefore, a soldier must voluntarily obey a superior’s order, and make a proposal to his/her superior according to the chain of command if there is a grievance related to military service.

3) The instant order is an order of a superior officer to order the Defendant, who has the authority to take charge of military matters under the command of the President, the Minister of National Defense, based on the comprehensive command authority, to exercise an administrative action prohibiting military personnel under his/her command from bringing in the dynamics of the military.

Although the Defendant issued the instant order to cope with the promotion of the Korean Federation of Korean Universities and Students Association’s “Seoul Island Forwarding Campaign,” it is merely nothing more than the purport of confirming restrictions existing in the Military Service Rule and encouraging the observance thereof, and it does not specifically impose new restrictions on soldiers.

In other words, according to Article 16-2 of the Military Service Rule which was in force at the time of the instant case, a soldier shall not produce, copy, possess, transport, disseminate, or acquire any versives, books, paintings, or other representations, and shall report it immediately when he acquires it. In addition, according to Article 47(1) and the main sentence of Article 47(2) of the former Military Service Rules (amended by Ministry of National Defense Directive No. 600 of August 6, 1998, and repealed by Ministry of National Defense Directive No. 1056 of May 19, 209) of the Military Service Rules, a soldier may not bring into the territory any unauthorized goods, especially inferior or inferior books, etc., and possess personal goods within the territory only with those supplied by the military. Therefore, even if the instant order was not given, a soldier could not bring into the territory.

Nevertheless, the Majority Opinion determined that the instant order could have a doubt as to whether it did not violate the Constitution by excessively infringing military personnel’s mental freedom by limiting “the freedom of reading books,” which serves as the basis of academic and ideological freedom.

Although the instant order includes some of the mass books that cannot be seen as pro-enemy contents under the National Security Act among the books prohibited from bringing in under the instant order, the instant order was based on the exceptional situation that the 16th Korean Federation of Korean University Students Association (the court already determined from the 5th to 15th Korean University Federation of University Students Association) as a pro-enemy organization. Supreme Court Decision 2013Do3346 Decided February 18, 2016, etc.) intends to bring in the selected book systematically as part of anti-government and anti-U.S.-U.A. The instant order does not intend to completely restrict the acquisition, possession, reading, or perusal of the said books by designating them as anti-government and anti-U.S.-U.A.-U.S.-U.S.-U.S. books as the general and port French order, but rather limited

Therefore, it is reasonable to view that the instant order is a justifiable order issued by the Minister of National Defense based on the relevant provisions of the Military Service Rule and the authority to command, in a position that is responsible for preserving military discipline and military mental strength. As long as the instant order is justifiable, the Plaintiff has a duty to obey it.

4) There is no room for dispute over whether all citizens, including soldiers, have the right to trial under the Constitution. However, the right to trial is not absolute and unlimited, and the person who exercised the right to trial may be subject to criminal punishment or civil liability for damages after the fact, depending on the intention, purpose, or method of exercising the right to trial.

Before filing the instant constitutional complaint, military advocates did not enact the Presidential Decree to pay the salaries, etc. of military advocates in the same manner as that of judges and prosecutors (see Constitutional Court en banc Order 2001Hun-Ma718, Feb. 26, 2004). They are qualified as members of various personnel committees, etc., and confirm the unconstitutionality of Article 8(2) of the former State Public Officials Act, which treats military advocates’ career as disadvantageous to judges, public prosecutors, and attorneys’ experience (see Constitutional Court en banc Order 2003Hun-Ma422, May 31, 2007; Constitutional Court en banc Order 2007Hun-Ma767, May 31, 2007; Constitutional Court en banc Order 2006Hun-Ma767, May 31, 2007; Constitutional Court en banc Decision 2008Hun-Ma165, May 26, 2008).

However, the filing of the instant constitutional complaint by the Plaintiff, etc. is essentially different from the filing of the said constitutional complaint in its intention or purpose and method.

The instant constitutional complaint is subject to the direction of the Minister of National Defense, who is in the position to comprehensively take charge of military matters and to direct and supervise all the armed forces through the Chairman of the Joint Chiefs of Staff and the Chief of Staff of each service branch, under the order of the President, who is the military authority having authority over military administration under the Constitution. As seen above, the instant order was a legitimate order issued by the Minister of National Defense based on relevant statutes and the authority to command, and the Plaintiff et al. has a duty to comply with orders

No statute that grants authority or obligations to file a constitutional complaint to a military advocate for the protection of fundamental rights of a third party, not his/her own fundamental rights, is found. However, according to Article 8(2)17 through 22 of the former Organization of the Ministry of National Defense and its affiliated agencies (amended by Presidential Decree No. 2287, Jul. 21, 2010) of the Ministry of National Defense (amended by Presidential Decree No. 22287, Jul. 21, 2010), a military legal entity’s legal organization includes matters concerning human rights policies and guaranteeing fundamental rights of soldiers in the military, and such affairs are not related to the duties

However, under the circumstances where the instant order had already been reported to the media and became a matter of social interest, the Plaintiff filed a constitutional complaint against the instant order in a group with other military advocates without sufficiently paying for internal corrective efforts, such as the submission of opinions in accordance with the chain of command within the military.

Examining these circumstances in light of the aforementioned statutory provisions and their purport, even if the act of the Plaintiff et al. is intended to realize the right to trial, it violates the duty to issue an order under the Military Service Rule based on the Constitution and the Military Personnel Management Act, etc.

5) The Majority Opinion states that the proposal and grievance review stipulated in Articles 24 and 25 of the Military Service Rule are rights only, and cannot be interpreted as obligations. In light of the purport of the system, there is no ground to regard the proposal and grievance review as a prior procedure prior to the exercise of a soldier’s right to trial, and that the filing of the Plaintiff’s constitutional complaint cannot be viewed as grounds for disciplinary action on the ground that it was prohibited from filing a constitutional complaint without going through the system

However, there is no reason to narrowly interpret the meaning of the above Military Service Rule as the Majority Opinion. As can be seen, regarding the fundamental rights of military personnel, restrictions may be aggravated to the extent necessary to achieve the purpose of existence of the military organization. Considering the special characteristics of the military organization that has a uniform structure of national security and homeland defense, the parts closely related to military service and military life and mental power can be widely recognized by law enforcement authorities. Therefore, it is difficult to deem that demanding thorough observance of the principle of statutory reservation is reasonable (see, e.g., Constitutional Court en banc Decision 2008Hun-Ma638, Oct. 28, 2010). If specific codes of conduct related to military service do not stipulate all the rules of military service in the Military Service Rule, and the pertinent rules are not clearly stated in the Military Service Rule, and thus, in order to resolve disadvantages that may arise from the examination of military personnel’s right to request a trial, it is difficult to find that the said rules are not clear enough prior to the issuance of the above rules and regulations.

D. As to the violation of prohibition against collective action outside the military service

1) Since the military unit is an organization that holds and uses arms with a large number of troops, it is very dangerous for soldiers to engage in activities outside the military service. Article 13(1) of the Military Service Rule provides that “A soldier shall not engage in any collective activity for any purpose other than military service.” Here, “collective activity for any purpose other than military service” means a group of soldiers for a specific purpose that interferes with the nature of military service, such as undermining military discipline or violating one’s duty as a soldier, and refers to an activity that has not reached the formation stage of an organization, and such activity does not need to be continuously conducted, and it does not need to be organized to the extent that it has the form of command (see Supreme Court Decision 90Nu4839, Apr. 23, 191).

Further, considering the purport of Article 25(4) of the Military Service Rule that prohibits a soldier from requesting external resolution of grievances related to military service under Article 25(4) and the purpose of recommending opinions according to the chain of command under Article 24(1) of the same Act, a soldier’s filing of a petition, collective signature, or group of trials may appear as a collective resistance, and may not be permitted on the ground that a soldier’s filing of a constitutional complaint may directly interfere with the military discipline. Therefore, even if a judicial litigation, such as filing of a constitutional complaint, falls under the exercise of a right under the Constitution and law, it may be assessed as a collective action in a certain case as a violation of Article 13(1) of the Military Service Rule, comprehensively taking into account individual and specific circumstances, such as the intent and developments of a collective litigation, the content, the impact and degree of the litigation on the military discipline, and whether the result was or was known in advance.

2) On August 2008, the Plaintiff knew that the instant order and its issues were raised through newspaper articles, internal communications network, etc., and then consulted with the Nonparty, and subsequently requested adjudication on constitutional complaint with the Nonparty at the end of time, and made the Nonparty prepare a draft of adjudication on constitutional complaint with the Nonparty. On October 2008, the Nonparty, who was known to the Nonparty, solicited the instant military advocate directly or by having contacted with telephone, e-mail, etc., and expressed his intent to request adjudication on constitutional complaint with regard to the instant order to the military advocate’s motive group at the Internet site. On October 2008, the Plaintiff expressed his intent to request adjudication on constitutional complaint with the Plaintiff and the Nonparty. On October 17, 2008, the Plaintiff discussed the Plaintiff’s request for adjudication on constitutional complaint with the Nonparty, along with the Nonparty’s request for adjudication on constitutional complaint with a view to affecting the instant military advocate’s expression of intent and the Nonparty’s request for adjudication on constitutional complaint in the form of a group.

Unlike various lawsuits filed in the court, the constitutional complaint has both the nature of subjective remedies as well as the function of guaranteeing objective constitutional order, and it does not require a number of petitioners due to the effect of the decision of the Constitutional Court.

Nevertheless, the Plaintiff’s filing of the instant constitutional complaint in a group after inviting other military advocates who are other military advocates by using various methods can be deemed to have been in the process of unity in the form of “sameness.”

Many military advocates filed a constitutional complaint in a group that the instant order by the Minister of National Defense is not in violation of the Constitution can be deemed to be resisting. In fact, the concerns of the people against the military have increased due to media reports surrounding the instant constitutional complaint claim, and the military trust and honor have been undermined.

Examining the aforementioned circumstances and the legislative purport of the Act and subordinate statutes on collective action prohibition as seen earlier, the filing of the instant constitutional complaint without internal resolution efforts constitutes a violation of the duty to issue an order, and the Plaintiff’s violation of the duty to enforce the order, and the Plaintiff’s violation of the duty to prohibit collective action is reasonable to deem that the filing of the instant constitutional complaint constitutes a group of persons with specific purposes other than military service as military personnel, such as undermining military discipline or violating the duty to prohibit military service, and thus, constitutes a violation of the duty of prohibition.

3) The Majority Opinion states that the filing of the instant constitutional complaint is an exercise of the right permitted by the law, and the instant order includes the general culture book, which limits the “right to read books,” which serves as the basis of the freedom of learning and thought, and thus, it is difficult to deem that there is no doubt as unconstitutionality, and thus, it does not constitute a prohibited group act, since it does not aim at impairing the discipline of military service or impairing the essence of military service.

However, the books prohibited pursuant to the instant order include the following: (a) as if the Majority Opinion does not deny the Plaintiff’s reading of the books of general culture; (b) the instant order does not prohibit the Plaintiff’s reading itself, but merely prohibits the Defendant’s military commander from bringing into the barracks a specific book for the maintenance and display of fighting force. Therefore, it is excessive to evaluate that it is a case where the intrinsic substance of the freedom of learning and thought is infringed as the Majority Opinion. To file a constitutional complaint with the Plaintiff as well as other military advocates in group with respect to the principal portion of the military personnel, the Plaintiff’s filing of a constitutional complaint against the Plaintiff as well as the other military advocates is detrimental to the discipline of military service, and is contrary to the nature of military service, and thus, it constitutes a group of activities other than the military

E. As to the violation of the duty to observe the statutes and maintain dignity regarding public relations activities

1) The first sentence of Article 17(1) of the Military Service Rule provides for the duty to obtain permission from the Minister of National Defense in cases where a soldier intends to make a military announcement of matters concerning national defense and military service or engage in external activities related thereto. Furthermore, Article 22 of the National Defense Relations Directive provides for the duty to provide guidance through the department in charge of public relations and, upon receipt of a request for interview on important matters, such as national defense policies, when a soldier is subject to a request for interview. Meanwhile, Article 56 subparag. 2 and 3 of the former Military Personnel Management Act provides for the duty to undergo a prior review by the head of the relevant department. Meanwhile, Article 56 subparag. 2 and 3 of the former Military Personnel Management Act provides for disciplinary reasons when a soldier violates this Act or any order issued under this Act, and Article 9 of the Military Service Rule provides that a soldier shall not act detrimental to his/her reputation and dignity as a soldier.

These regulations are necessary to fulfill the constitutional duty and mission of the National Armed Forces. A soldier must be subject to certain restrictions on external activities, and must observe laws and orders as a soldier and maintain dignity.

2) On September 22, 2008, the Plaintiff and the Nonparty agreed to file an adjudication on constitutional complaint jointly with the Non-Party, and the Non-Party made an interview directly or by telephone with the media, including newspapers and broadcasting, after receiving a written adjudication on constitutional complaint on September 22, 2008, which led to a ○○ newspaper that strongly criticizes the direction of the instant case, and that “the Non-Party asserted that it is unreasonable for the Non-Party to do so, and expressed the non-party’s confidence in the military.” On October 17, 2008, the Plaintiff and the Non-Party discussed the following: “The Plaintiff and the Non-Party may have a direct contact with the media.” The attorney representing the Plaintiff et al., conducted an interview directly or by telephone with the media, including newspapers, broadcasting, etc. immediately after receiving the written adjudication on constitutional complaint on October 22, 2008; the Plaintiff et al. did not have any controversy over the outcome of the public’s criticism or criticism against the instructions of the instant case.

Considering these circumstances in light of the above statutory provisions and their purport, it is reasonable to deem that the Plaintiff’s above act constitutes a violation of the duty to observe the statutes and to maintain dignity on public relations.

3) The Majority Opinion argues that the Plaintiff did not directly interview with the media, but the Plaintiff was an attorney, and the Plaintiff merely stated that the Plaintiff was a soldier and was unable to contact with the media, and thus, it does not have any ground to regard the Plaintiff as the Plaintiff’s act, and it cannot be deemed that the Plaintiff’s interview was a violation of the Plaintiff’s duty to maintain the dignity.

However, the Plaintiff’s legal representative’s effect of an interview conducted with the media after the Plaintiff’s discussion is merely attributable to the Plaintiff as the principal and does not belong to the Plaintiff’s legal representative. If the Plaintiff’s legal representative was unable to have an interview with the media and caused his/her legal representative to take charge of an interview with the media, this ought to be deemed as a substantial violation of the Military Service Rule, etc. In light of the fact that the act of violating the Military Service Rule is justified only formally while complying with the Military Service Rule.

F. Feasibility of the lower judgment

As seen above, the Plaintiff was aware of the legitimacy of the instant instruction, and did not fully exercise internal efforts to correct the instant order, such as making proposals for opinions in accordance with the chain of command inside the military, and, in the situation where the instant order had already been reported to the media and left into a matter of social interest, it brought a collective constitutional complaint against other military advocates by informing other military advocates of their intent, combining the military servicemen who responded to it, and by allowing the attorney representing them to present their critical opinions or arguments outside the military, thereby impairing the public trust and the honor of the military.

Although the Plaintiff’s above act is aimed at realizing the right to trial, the pertinent provisions of the Military Service Rule and the Military Personnel Management Act based on the Constitution and the Military Personnel Management Act are violated. Therefore, the lower court did not err by misapprehending the legal doctrine on the establishment of grounds for disciplinary action under the Military Personnel Management Act.

G. Sponsor about the majority opinion and concerns about it.

According to the Majority Opinion, in the future, a soldier filed a lawsuit or a constitutional complaint against his/her superior as a means of expressing his/her superior’s claim and refusal, and filed a lawsuit or a constitutional complaint in a group by identifying a number of participants, and indirectly contact the press through his/her attorney, without any restriction. In such a case, the recommendation and grievance review inside the military forces lose its meaning, and the commander’s order may form a large number of forces according to their respective interests from the soldiers to the officers, and resistance to the police officers, and file a variety of lawsuits or a constitutional complaint in a group, thereby putting him/her at a disadvantage. Furthermore, a soldier’s attempt to circumvent a commander’s order by lending external force can be made the object of trial.

There is a need for a variety of accidents and concerns for resolving problems within the military forces before the order is issued. However, if it is determined in the form of an order, unless it is clearly illegal, the obeyion and acceptance of the order must be prior to the order, and the order is realized through a uniform military aircraft and a one-scrout movement, thereby demonstrating strong organizational force of the military forces. The military is the life of the military forces. In the real security situation where the two Koreas are divided and the military is faced with a high risk of causing harm to the life and body of the people. When the strict use of the military forces is not secured, young soldiers, our people’s life and body cannot be protected. If the military forces are not secured through the military aircraft, the flexible history and light that our people are called our people of the Republic of Korea under the Constitution, succession to tradition, and the safety, freedom and happiness of our and our descendants cannot be secured.

In particular, a military non-military group act should be strictly prohibited because of its high risk. The majority opinion is likely to create a room for military personnel to use the name of the exercise of the right to trial for an indefinite and bad will meeting.

In order for the national armed forces to fulfill their constitutional mission, this situation is not very lick for the people who are expecting to believe that they will be unconstitutional.

H. Therefore, the judgment of the court below that the instant disciplinary action or discharge disposition is legitimate is just, and it is not erroneous in the misapprehension of legal principles as otherwise alleged in the grounds of appeal.

For the foregoing reasons, we express our concurrence with the Majority Opinion.

Justices Kim Young-soo (Presiding Justice)