Court rules in favor of Korean American that suspicion does not constitute draft dodging
Seoul Administrative Court said a simple suspicion is not enough to reject the plaintiff's request to restore his nationality, pointing out that there is no specific evidence to prove the accusation made by the Ministry of Justice.
The plaintiff, born in 1986, had been living primarily outside of Korea since the age of 16 and acquired US citizenship in July 2022 at the age of 35. He filed for the restoration of his South Korean citizenship in December of that year, which the ministry rejected on grounds that his acquiring of US citizenship is believed to have been designed to avoid mandatary military conscription in South Korea.
All able-bodied South Korean men are mandated to serve in the military for at least 18 months, but the Military Service Act in the past had exempted those over 35 of such duties. Those who evaded conscription without justifiable clause, those whose enlistment for noncombat duties had been cancelled, and those who violated the state permit to stay overseas -- such as returning to the country after the permitted period -- are subject to enlistment until age 37.
South Korean men have the freedom of travel, but those who are at least 25 years old and have not yet served their mandatory military duty have to receive government permission to travel overseas. This is to prevent draft-dodging via emigration.
The Military Service Act allows male citizens to postpone enlistment under justifiable causes, which include educational commitment at tertiary educational institutes or higher and residence outside of the country. The plaintiff in question was permitted by the government to stay outside the country until Dec. 31, 2023.
The court pointed out that the plaintiff had been permitted by the state to stay outside the country until Dec. 31, 2023, and that he had been effectively exempted from conscription as of Jan. 1, 2022. This was the year when he turned 36, and Article 2-2 of the Military Service Act states that one is regarded to have become a certain age in Jan. 1 of a given year.
By this logic, the court said the plaintiff had already been exempted from the military duties when he became a US citizen. "It would have been possible for the plaintiff to expect that he would not have to shoulder the military duties even without losing his South Korean citizenship. Thus it cannot be considered that applying for US citizenship was a reasonable or unavoidable means for him to avoid the duties," the court said in its ruling.
"A vague suspicion itself is not sufficient in such case, and there must be probable cause to strongly suspect draft dodging, such as the purpose of stay in another country, reasons for acquiring the foreign nationality and the situation and time of losing the Korean nationality," the court stated.
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