Don’t Blame the Family: Constitutional Court Rules That Criminalizing Failure to Pass On Military Notices Is Unconstitutional

By Juwon Kang, April 26, 2026

South Korea’s Constitutional Court has unanimously struck down a provision of the former Military Service Act that made it a criminal offense for family members to fail to pass on military mobilization training notices to the person named in them. Here are the key points:

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The Case That Triggered the Review

– A father received a military mobilization training summons on behalf of his absent son and failed to pass it on to him without a justifiable reason.
– He was criminally charged under Article 85 of the former Military Service Act.
– The trial court, finding the provision potentially disproportionate, referred the question to the Constitutional Court for a constitutionality review in March 2023 — a process initiated by courts themselves when they suspect a law they must apply may be unconstitutional.

What the Constitutional Court Decided

– On March 26, 2026, all nine justices ruled unanimously that the provision was unconstitutional.
– The court held that delivering military notices is fundamentally a public duty belonging to the state, not a burden that should be imposed on private individuals under threat of criminal sanction.
– The state has ample alternatives — postal delivery, electronic notification, and other means — and offloading that responsibility onto household members purely for administrative convenience goes too far.
– Even if a family member fails to pass on a notice, the court said an administrative fine would be a sufficient and proportionate response. Imposing criminal punishment for such a minor administrative breach violates the principle that criminal sanctions should be a last resort, and is grossly disproportionate to the degree of fault involved.
– The court also noted that maintaining criminal liability for such a simple relay obligation — despite changing social norms and evolving attitudes toward military duty — lacks both necessity and justification.

The Broader Context

– This decision follows a 2022 ruling in which the Constitutional Court struck down a similar provision in the former Reserve Forces Act, which criminalized the same failure to pass on reserve training notices.
– The current ruling is limited to mobilization training notices specifically, and does not address all categories of military service notifications.
– Notably, the Military Service Act was already amended in 2025 to replace criminal punishment with an administrative fine for this type of violation — so this ruling applies only to cases that arose under the old law and has no direct effect on current legislation.


Why This Matters

This decision reinforces a constitutional principle that Korean courts have been developing consistently: the state cannot use criminal law as a shortcut for administrative inconvenience. Where the state has the means to fulfill its own obligations, and where lesser sanctions would achieve the same goal, criminalization of passive non-compliance by private individuals crosses a constitutional line. For practitioners dealing with military service law or administrative penalty cases, this ruling — read alongside the 2022 Reserve Forces Act decision — signals a clear trend in how the court weighs proportionality in this area.

Article: https://www.lawtimes.co.kr/news/articleView.html?idxno=218424