S-Space College of Social Sciences (사회과학대학) Center for Social Sciences (사회과학연구원) 한국사회과학 한국사회과학 vol.30 (2009)
'양심적 병역거부'의 현황과 법리
The Current Situation of Conscientious Objection and Legal Principles Domestic and International
- Issue Date
- 서울대학교 사회과학연구원
- 한국사회과학, Vol.30, pp. 45-144
- This paper deals with the problem of conscientious objection to military service.
Chapter 1 gives an overview of conscription system of Korea. Conscription is enshrined in
Article 39 of the Constitution and is further regulated by Military Service Act.
Chapter 2 gives an overview of conscientious objectors in Korea. Annually around 700
COs are being sentenced and imprisoned for one and a half years, according to Article 88,
Para. 1, Item 1 of the Military Service Act.
Chapter 3 analyzes major decisions of the courts, including that of the Constitutional
Court. The Constitutional Court stated that the concerned article does not violate the
freedom of conscience which is protected under the Korean Constitution. While
upholding the constitutionality of the contested provisions, the majority directed the
legislation to study means by which the conflict between freedom of conscience and the
public interest of national security could be eased. The dissent found the relevant
provisions of the Military Service Act unconstitutional, in the absence of legislative efforts
to properly accommodate conscientious objection.
Chapter 4 reviews numerous recommendations, resolutions and reviews of UN Human
Right Council and Human Rights Committee. Korea, being a state party to the
International Covenant on Civil and Political Rights, has an obligation to abide by the
Covenant. Furthermore Korea, becoming a party to the Optional Protocol, has
recognized the competence of the Committee to view Individual Communication. The United Nations, the Council of Europe and the European Parliament have all stressed on
numerous occasions that the right to conscientious objection is a fundamental aspect of
the freedom of thought, conscience and religion, as laid down in Article 18 of the
Universal Declaration of Human Rights and Article 18 of the International Covenant on
Civil and Political Rights.
Chapter 5 is a thematic global survey on 20 countries which recognize legally the right
to conscientious objection and keep an alternative service system. Most of them are
Chapter 6 reviews arguments against adopting an alternative service system for COs.
They argues that the alternative service system is harmful to national defense, and is
against the equality principle of military service duty and responsibility. But this paper
argues that it is in principle possible, and in practice common, to conceive alternatives to
compulsory military service that do not erode the basis of the principle of universal
conscription but render equivalent social good and make equivalent demands on the
individual, as the UN Human Rights Committee concludes.