Performance of the Duty of Military Service before the Renunciation of Nationality Case

(18-2 KCCR 528, 2005Hun-Ma739, November 30, 2006)

In this case the Constitutional Court dismissed the constitutional complaint, holding that the relevant provisions of the Nationality Act, providing that a person with dual nationality should perform his duty of military service before he renounces the nationality of Republic of Korea, do not infringe on the complainant's freedom of residence.

Background of the Case

The relevant provisions provide that a person with dual nationality can renounce the nationality of Republic of Korea in 3 months since he has been enlisted into the first militia service at the age of 18, otherwise he should perform his duty of military service before he renounces the nationality. The complainant, who has acquired the nationality of Republic of Korea as well as the citizenship in the United States, was enlisted into the first militia service on January 1, 2004 according to the Military Service Act. On August 8, 2005, he filed a constitutional complaint against the relevant provisions, alleging that they infringed on his right to pursue happiness and the freedom of conscience because they forced him to perform the military service for the renunciation of the nationality.

Summary of the Decision

The Constitutional Court unanimously dismissed the constitutional complaint, and the summary of the grounds is as follows:

Based on the premise that even a person with dual nationality has to perform the duty of military service once he has acquired the

nationality of Republic of Korea, the relevant provisions are aimed at preventing him from evading his duty of military service in the way of selection of nationality, by requiring him to perform the military service for the renunciation of nationality unless he is released from the duty through the renunciation of nationality in certain terms(3 months) from the establishment of concrete duty of military service(i.e. the enlistment into the first militia service).

According to the current legal system, the disadvantages caused by the renunciation of nationality is not enough to prevent the avoidance of the military service duty through the renunciation, so that without the regulation such as the relevant provisions, it will be much easier to evade the duty of military service in the way of selection of nationality, with the result that, first, it will bring about some loss of military manpower resources, and secondly, it will seriously hurt the principle of equality in the burden of military service duty because it can allow a person with dual nationality to enjoy the benefits as Korean living in this country and then opportunistically to give up the nationality when he has to perform his duty as a citizen.

Furthermore, his freedom to select nationality is just partly restricted, not fully deprived by the relevant provisions. He can freely renounce the nationality in 3 months since he has been enlisted into the first militia service at the age of 18, the prohibition against the renunciation of nationality has the time limit because it lasts just until he is released from the duty of military service by law(when he becomes 36 years old), and he can still renounce the nationality at his own will if he has performed the military service or been exempted from it.

Although the relevant provisions do not make an exception of persons with dual nationality whose main residence is in foreign country, it does not follow to the violation of their freedom to renounce the nationality because they can be released from the military service duty in the positive way, that is, by the renunciation of nationality in an early stage, or in the passive way, that is, by the other related provisions of the Military Service Act.