판례평석 : ``남성중심의 병역의무`` 관념의 해체 -헌법재판소 2010.11.25. 선고 2006헌마 328을 중심으로- = Case Commentary: Deconstructing the Exclusivity of Men`s Involuntary Conscription-Judicial Review of Article 3(1) of the Military Service Act-

다국어 초록 (Multilingual Abstract)

The long awaited judgment by the Constitutional Court in the case of the judicial review of Article 3(1) of the Military Service Act (Case No. 2006HunMa328) was handed down on November 25, 2010. While the outcome of the decision by the Constitutional Court was not a surprise to the majority of legal professionals or the public, it was nevertheless a huge disappointment from the perspective of feminist legal theory. The applicant argued that Article 3(1) of the Military Service Act, based on Article 39(1) of the Constitution stipulating the constitutional obligation to national defense, violated Article 11(1) of the Constitution that provides the fundamental right to equality by imposing involuntary military service only to men. The Constitutional Court countered that claim on the grounds that (i) women become incapacitated to perform military duties because of their physiological characteristics which include menstration, pregnancy, childbirth, and nursing; (ii) men as a group possess the physical capacity that suits combat situations better than women do as a group; and (iii) women are vulnerable to deliberate sexual violence in the hands of the enemy and also within the military compounds due to the military`fs top-down organizational structure. I contend that what the Constitutional Court states as reasonable grounds for lawful discrimination based on gender is established upon erroneous reasoning. First, the feminist legal theory of ``equal treatment`` helps us understand the status of pregnancy not as a unique characteristic but as one of many examples of physical incident that temporarily hinders a person from fulfilling his or her job performance. Second, the selection of enlisted soldiers should depend on Bona Fide Occupational Qualification and not on conventional practices. Therefore, despite the fact that the disparity between men and women on physical capacity is well documented, men and women should not be judged as a group but as individuals. The Constitutional Court`fs decision is successful in dismantling the conventional idea of distributing social roles according to gender. However, the decision still lacks understanding of the notion of full equality by appraising women against male standards and defining women`fs characteristics as ``burdens`` not found in men`fs. I contend that what the Constitutional Court states as reasonable grounds for lawful discrimination based on gender is established upon erroneous reasoning. First, the feminist legal theory of ``equal treatment`` helps us understand the status of pregnancy not as a unique characteristic but as one of many examples of physical incident that temporarily hinders a person from fulfilling his or her job performance. Second, the selection of enlisted soldiers should depend on Bona Fide Occupational Qualification and not on conventional practices. Therefore, despite the fact that the disparity between men and women on physical capacity is well documented, men and women should not be judged as a group but as individuals. The Constitutional Court`fs decision is successful in dismantling the conventional idea of distributing social roles according to gender. However, the decision still lacks understanding of the notion of full equality by appraising women against male standards and defining women`fs characteristics as ``burdens`` not found in men`fs.