Blog, Criminal

In South Korea, the issue of “military service evasion (병역 기피)” has always been a hot topic. Instances like conglomerate heirs and celebrities engaging in “birth tourism (원정출산)” or athletes receiving preferential treatment in military service often draw significant attention. Whether these public figures fulfill their military service obligations can spark social debate, sometimes earning them public support and admiration, while other times leading to harsh criticism and permanent withdrawal from public favor. In this time, we delve into the general overview of South Korean men’s obligations regarding military service, explore what constitutes violations of military law concerning overseas travel permits, discuss the penalties for draft evasion, and explain how violators should handle such situations.

Obligations of South Korean Men Regarding Military Service

The Constitution of South Korea states that “all citizens shall have the duty of national defense under the conditions as prescribed by Act” (Article 39). The Military Service Act (병역법) stipulates that “Every masculine gender of the Republic of Korea shall faithfully perform mandatory military service, as prescribed by the Constitution of the Republic of Korea and this Act.” (Article 3, Paragraph 1). 

Military obligations for men in South Korea commence at the age of 18. Upon turning 18, they become subject to military service preparation and undergo a physical examination in the year they turn 19. Men classified with physical grades 1 through 4 level are eligible for conscription. 

Draftees are required to fulfill their military service obligations by the age of 35. However, for draft evaders and individuals who have left the country with a travel permit but remain abroad without obtaining an extension, the obligation period extends until the age of 37.

*Age Calculation: “From age OO” refers to January 1st of the year one turns that age, and “until age OO” refers to December 31st of the year one turns that age.

Dual Citizens’ Military Service Obligations 

Dual citizens must choose one nationality by the end of the year they turn 18. Those who do not renounce their Korean citizenship within the specified period are subject to military service obligations. However, certain criteria allow exemption or postponement of military service for dual citizens residing abroad. Dual citizens residing abroad can defer their military service until the age of 37 if they meet any of the following conditions: 

1. They have lived abroad for more than three years continuously with a parent who holds permanent residency or citizenship in a foreign country
2. They have lived abroad continuously with their parents for more than five years since before the age of 24, or 
3. They have lived abroad continuously for more than ten years.

Overseas Travel Permit and Revocation

Individuals planning to travel abroad must obtain permission from the local Military Manpower Administration office (병무청). Those over the age of 25, classified as military service preparatory (병역의무자), must obtain permission to travel overseas. Those who departed before the age of 24 must obtain an extension permit by January 15 of the year they turn 25.

If a person who has been granted permission to travel abroad finds it difficult to return within the permitted period, they must apply for an extension of the travel permit at least 15 days before the expiration date.

Meanwhile, a person who has obtained permanent residency and has lived in that country for more than 3 years continuously, or a dual citizen who has lived abroad for more than 10 years continuously, can obtain a permit for overseas travel for the purpose of emigration. In this case, the overseas travel permit is valid until the age of 37. In this case, the conscription is postponed until the age of 37, and as of January 1st of the year when they turn 38, they are enlisted in the Wartime Labor Service (전시근로역), and effectively exempted from military service duty.

However, if a person who has received permission for emigration purposes stays in South Korea for more than a total of 6 months within one year or engages in profitable activities within the country for more than a total of 60 days within one year, the overseas travel permit may be revoked.

Penalties for Draft dodger and Non-returnee 

Violators of overseas travel permit regulations or individuals who fail to return within the permitted period face sanctions under the laws. Failure to return without valid reasons within 30 days after the permit expiration can result in imprisonment for up to three years. In particular, if it is determined that there is a clear intention to evade military service or seek exemption from it, individuals may face imprisonment for a period ranging from one to five years.

In recent cases, individuals received sentences for military service law violations, highlighting the importance of legal counsel in such matters. Seeking professional assistance is crucial for individuals facing investigations or legal proceedings related to military service obligations. 

Case Study

Mr. A who had received permission for overseas travel, resided in the United States until 15 days before the expiration of the permitted period without obtaining an extension for the duration of stay. In the first trial, despite not fulfilling military duty while continuing to reside in the United States without valid reasons, it appeared that there was no intention to leave the country to evade military service. Therefore, a sentence of 10 months’ imprisonment with a 3-year probation was pronounced.

Meanwhile, In the appellate trial filed by the prosecutor, the court ruled for dismissal, citing the three-year statute of limitations for military service law violations. As the offense concluded with the expiration of the overseas travel permit, which occurred 15 years ago, the statute of limitations was deemed fulfilled.

However, in the third trial, the Supreme Court cited the Criminal Procedure Act, which states that the statute of limitations for criminal prosecution is suspended when residing abroad for the purpose of avoiding criminal punishment. Based on this, it was acknowledged that Mr. A’s extended stay in the United States beyond the age at which he would be exempt from military service obligations due to the expiration of his visa and subsequent illegal stay indicated a purpose of residing abroad to avoid criminal punishment. Therefore, Mr. A’s violation of the military service law occurred from the expiration date of his overseas travel permit. While the statute of limitations for this offense began immediately upon the commission of the crime, the purpose of residing abroad to avoid criminal punishment was deemed to have suspended the statute of limitations in this case (The Supreme Court, in its ruling on December 1, 2022, Case No. 2019Do5925).

As a result, the original verdict was overturned and remanded for retrial, and the appeal was dismissed, confirming a sentence of 10 months imprisonment with a three-year probation.

This case appears to involve residing abroad illegally after the expiration of a visa, indicating a clear intention to evade military service. Moreover, if one stays overseas beyond the age at which military service obligation is exempted (currently 37 for overseas residents), it may further suggest an intention to evade military duty. Furthermore, in cases where one stays abroad without extending the permit, the violation of the Military Service Act is immediately established from the expiration date of the overseas travel permit, and the statute of limitations is suspended. Therefore, there is a higher risk of being punished for violating the Military Service Act, and one should be cautious in such situations.

Conclusion

Military service obligation is a significant responsibility for South Korean men, and evasion attempts can lead to criminal penalties and social disadvantages. The Military Manpower Administration diligently monitors potential violations and relies on public reports to enforce the law. If facing allegations of violating the Military Service Act, it’s essential to demonstrate to the investigating authorities that there was no intention to evade military duty, and If there are unjust accusations, seeking legal assistance from a specialized attorney can help navigate the legal process and potentially clear the allegations.

For inquiries or assistance regarding military service obligations, feel free to contact our law firm. We are committed to providing the best possible solutions for your military service-related concerns.