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South Korea Conscientious Objection Case (2018)

Also Known As 2011Hun-Ba379

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On June 28, 2018, South Korea's Constitutional Court ruled on a consolidated group of petitions led by case number 2011Hun-Ba379 that the Military Service Act's failure to offer any legal alternative to armed service violated the freedom of conscience of conscientious objectors under Article 19 of the Constitution. The court found the Act's military service type clause, Article 5 Paragraph 1, in nonconformity with the Constitution by a vote of 6 to 3, and ordered the National Assembly to legislate an alternative by December 31, 2019, with the clause remaining provisionally in force until then. In the same decision the court separately upheld the Act's punishment clause, Article 88 Paragraph 1, which criminalizes failing to report for duty without justifiable cause, so refusal itself was not decriminalized. Justices An Chang-ho and Cho Yong-ho wrote separately, arguing the court lacked jurisdiction to rule on the service type clause. Most Korean conscientious objectors historically have been Jehovah's Witnesses, whose religious refusal sent thousands to prison across the decades before this ruling. The decision led the National Assembly to enact a 36 month alternative civilian service program, administered largely inside correctional facilities, that took effect in 2020 and remains in force.

Facts
Decision Year
2018 1
Decision Date
2018-06-28 1
Holding
Held, 6 to 3, that the Military Service Act's failure to provide any legal alternative to armed service, Article 5 Paragraph 1, is in nonconformity with the constitutional freedom of conscience, with the National Assembly ordered to legislate an alternative by December 31, 2019; separately upheld, by the same decision, the Act's punishment clause, Article 88 Paragraph 1, criminalizing refusal without justifiable cause, which the ruling left intact. 1
Current Status
The alternative service law the ruling required was enacted December 31, 2019, and the resulting 36 month alternative service program, administered mainly in prisons, began in 2020 and remains the current legal regime as of 2026. Objectors and human rights groups continue to challenge its length and prison based conditions as punitive; roughly 125 constitutional complaints against the program's terms were reported pending as of 2024, and refusal to enter the alternative program can still result in criminal imprisonment. 2
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Two Clauses, One Ruling: How the Constitutional Court of Korea Split Conscience from Punishment

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

When the Constitutional Court of Korea ruled on June 28, 2018, on the consolidated petitions led by case number 2011Hun-Ba379, it did something easy to miss in a headline: it decided two different questions about the same statute, and answered them in opposite directions.

The Military Service Act contains two relevant provisions. Article 5, Paragraph 1 lists the categories of service the law recognizes and offers no civilian alternative to armed duty at all. Article 88, Paragraph 1 makes it a crime to fail to report for duty without justifiable cause. Prosecutors and lower courts had long treated a conscientious objector's religious refusal as falling outside justifiable cause, so the two provisions worked together: no alternative existed, and refusing the only option on offer was a crime.

By a vote of 6 to 3, the court found Article 5, Paragraph 1 in nonconformity with the Constitution, a formal category short of striking the law down outright: the clause was allowed to remain in force provisionally while the National Assembly was ordered to legislate a genuine alternative by December 31, 2019. But the same decision left Article 88, Paragraph 1 standing. The punishment clause was not found to violate the Constitution, and refusal without justifiable cause remained a crime in itself; the court's remedy was to require a new justifiable option, not to excuse refusing the old one.

Two justices, An Chang-ho and Cho Yong-ho, wrote separately, arguing the court had overstepped by ruling on Article 5, Paragraph 1 at all, calling the missing alternative a matter of legislative omission the constitutional complaint procedure was not built to reach.

The distinction mattered immediately. Objectors did not walk free after June 2018; the law that could jail them for refusing duty was still on the books, unchanged, for another eighteen months while lawmakers built the alternative the court had ordered.

The Longest Alternative: Inside South Korea's 36 Month Civilian Service Program

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

The Constitutional Court's 2018 ruling did not design South Korea's alternative service program; it only ordered one to exist by the end of 2019. What the National Assembly built in response is its own story, and one still being contested years later.

The Act on Assignment and Performance of Alternative Service, enacted December 31, 2019, created a civilian service track that took effect around June 30, 2020, with the first cohort beginning that October. The term is 36 months, roughly double the 18 to 21 months of standard active duty, and by design most of it is served inside correctional facilities rather than in hospitals, schools, or other community settings more commonly associated with alternative service elsewhere. Human rights organizations, including Amnesty International, have described this as the longest civilian alternative service period in the world, and have argued that a program built mainly around prison labor functions as a second punishment rather than a genuine substitute for the objection it was meant to accommodate.

The program has not gone unchallenged. By 2024, alternative-service personnel had filed roughly 125 complaints with the Constitutional Court contesting the length and prison-based conditions of their service, arguing the very design the 2018 ruling required has itself become a new constitutional question. And the underlying criminal exposure never fully disappeared: an individual who declines to enter the alternative program can still face prosecution and imprisonment under the same Military Service Act provisions the 2018 ruling left standing.

Most Korean conscientious objectors historically have been Jehovah's Witnesses, whose religious refusal sent thousands to prison across the decades before 2018; jw.org has stated that more than 19,300 Witnesses had been imprisoned since 1953, totaling over 36,700 combined years, before the ruling changed the law's shape. The 2018 decision closed one argument and opened another about what a genuine alternative actually requires.

Cross-Tradition Connections

Decided By

In Legal System

Source An Introduction to Comparative LawKonrad Zweigert and Hein Koetz; English translation by Tony Weir
In the Other Atlases
Sources
Dissenting Readings (1 dissenting reading)
Holding

In a separate opinion, Justices An Chang-ho and Cho Yong-ho argued the Constitutional Court lacked jurisdiction to rule on the military service type clause, treating the absence of an alternative service option as a matter of legislative omission beyond the scope of the constitutional complaint before the court, not a question the court was positioned to decide.

A dissenting reading, from Justices An Chang-ho and Cho Yong-ho of the Constitutional Court of KoreaKorea Law Information Center Summary of Case 2011Hun-Ba379

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