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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

South Korea: Supreme Court Finds Conscientious Objection to Military Service Justifiable

(Nov. 16, 2018) On November 1, 2018, the Supreme Court of South Korea ruled that conscientious objection to military service is “justifiable” under article 88(1) of the Military Service Act. (Sup. Ct., No. 2016 do 10912 (Nov. 1, 2018) (in Korean), Supreme Court website; Military Service Act, Act No. 4685, Dec. 31, 1993, as amended by Act No. 14611, Mar. 21, 2017, Statutes of the Republic of Korea website). The Supreme Court stated that it is not appropriate to penalize people who have refused mandatory military service on conscientious or religious grounds. (Sup. Ct., No. 2016 do 10912.)

History

Conscientious objection has been debated in South Korea for decades, especially in cases involving Jehovah’s Witnesses, and reportedly “[s]ince the 1950s, about 19,000 conscientious objectors have been arrested and served time, mostly 18 months in jail.” (Panel Proposes Conscientious Objectors Work at Fire Stations or Prisons, YONHAP (Oct. 4, 2018).)

The Supreme Court and the Constitutional Court have affirmed the punishment of conscientious objectors until this year. The last time that the Supreme Court issued a decision on the issue was in 2004. (Sup. Ct., No. 2004 Do 2965 (July 15, 2004) (in Korean), Supreme Court website.) The Constitutional Court of Korea also upheld the constitutionality of article 88(1) of the Military Service Act in 2004 and 2011. (Const. Ct., No. 2002 Hun-Ka 1 (Aug 26, 2004); Const. Ct., No. 2008 Hun-Ka 22-7 (consolidated) (Aug 30, 2011). Constitutional Court decisions are searchable on the Constitutional Court website.)

Conscientious objectors interviewed in news reports say they want to serve their country in alternative ways, but the government has not provided such alternatives. Though conscripts can be assigned to alternative services after enlistment, a month of combat training is still mandatory for all. (Min-sik Yoon & Hyun-ju Ock, Is South Korea Thawing to Conscientious Objection?, KOREA HERALD (Dec. 19, 2016).) In 2005, the National Human Rights Council of Korea (NHRCK) recommended that the government introduce alternative service. The Ministry of National Defense had a plan to promote alternative service for conscientious objectors in 2007, but the plan did not move forward. (Press Release, NHRCK, Alternative Civilian Service Has to Be Introduced for Conscientious Objectors (June 30, 2017).)

In 2016 an appeals court for the first time in the country’s history found a conscientious objector not guilty. (Min-kyung Kim, In a First, S. Korean Appeals Court Finds Conscientious Objector Not Guilty, HANKYOREH (Oct. 19, 2016).) The lower trial courts have increasingly handed down not-guilty verdicts for conscientious objectors since the first such ruling in 2016. (Supreme Court Rules Religious Belief Valid Reason for Refusing Mandatory Military Service, YONHAP (Nov. 1, 2018).)

In June 2018, the Constitutional Court again ruled that criminally punishing conscientious objectors to military service is constitutional.  This time, however, the Court ruled that not providing alternatives to conscientious objectors was unconstitutional. The Constitutional Court ordered the government to revise the Military Service Act by the end of 2019 to have those who refuse conscription serve through noncombat duties. (Const. Ct., No. 2011 Hun-Ba 379 (June 28, 2018).)

Future Cases and Alternative Forms of Service

The Supreme Court ruling will affect “227 other similar cases pending at the top court and some 930 conscientious objectors currently on trial in Korea to avoid criminal convictions for disobeying the mandate.” (Supreme Court Rules Religious Belief Valid Reason for Refusing Mandatory Military Service, supra.)

Since the Constitutional Court’s ordered the revision of the military conscription law in 2018, the government has taken steps to comply with the Court’s decision. On October 4, 2018, a government panel proposed that conscientious objectors fulfill their mandatory military service obligation through alternative forms of service, such as work at fire stations or prisons, for a period of 27 months or 36 months. (Panel Proposes Conscientious Objectors Work at Fire Stations or Prisons, supra.) It is likely that the Military Service Act will be revised by the end of 2019 and alternative forms of military service will be implemented in the future.

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Australia: Legislation to Implement Comprehensive and Progressive Agreement for Trans-Pacific Partnership Enacted; Agreement Ratified

(Nov. 15, 2018) On October 17 and 18, 2018, the Australian Parliament passed three bills that were required to implement and begin the ratification of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CP-TPP or TPP-11). (Press Release, Scott Morrison & Simon Birmingham, TPP-11 to Open New Doors for Aussie Farmers and Businesses (Oct. 17, 2018), Minister for Trade, Tourism and Investment website.) The bills received Royal Assent on October 19. Subsequently, on October 31, Australia notified New Zealand, as depository of the CP-TPP, that it had “completed its applicable legal procedures necessary for entry into force of the Agreement,” becoming the sixth country to ratify the CP-TPP. (Australia Ratifies the TPP-11, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE (DFAT) (Oct. 31, 2018); Press Release, Scott Morrison & Simon Birmingham, Australia Ratifies the TPP-11 (Oct. 31, 2018), Minister for Trade, Tourism and Investment website.)

As a result of Australia’s ratification, the Agreement will enter into force on December 30, 2018. The countries that had previously ratified the CP-TPP were Canada, Japan, Mexico, New Zealand, and Singapore. The remaining countries to ratify are Brunei Darussalam, Chile, Malaysia, Peru, and Vietnam. (See Press Release, David Parker, CPTPP Underway – Tariff Cuts for Our Exporters on 30 December (Oct. 31, 2018), Government of New Zealand website.)

The CP-TPP incorporates, by reference, the original Trans-Pacific Partnership Agreement (TPP), with “the exception of a limited set of provisions to be suspended.” (Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11), DFAT (last visited Nov. 7, 2018). See also TPP-11 Suspensions Explained, DFAT (last visited Nov. 7, 2018).) It was signed on March 8, 2018, by eleven of the twelve original signatories to the TPP, following the withdrawal of the United States from that agreement.

Implementing Legislation

The government introduced two of the bills required to implement the CP-TPP into the Parliament on August 23, 2018, these being the Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018 and the Customs Tariff Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Implementation) Bill 2018 (Parliament of Australia website). Additional relevant provisions were covered by a third bill, the Government Procurement (Judicial Review) Bill 2018, which had previously been introduced in May 2018. (Government Procurement (Judicial Review) Bill 2018, Parliament of Australia website; see Juli Tomaras, Government Procurement (Judicial Review) Bill 2018, at 7 (Parliamentary Library, Bills Digest No. 26, 2018–19, Sept. 17, 2018).)

The introduction of the two CP-TPP implementation bills followed the completion, on August 22, 2018, of the Joint Standing Committee on Treaties (JSCOT) report of its inquiry into the Agreement. JSCOT recommended that Australia take binding treaty action to ratify the CP-TPP. (JSCOT, Report 181 – Comprehensive and Progressive Agreement for Trans-Pacific Partnership (Aug. 2018), Parliament of Australia website.)

Anticipated Benefits for Australia

According to the Australian government, “[i]ndependent modelling shows Australia is forecast to see $15.6 billion [about US$11.4 billion] in net annual benefits to national income by 2030 from the TPP-11.” (TPP-11 to Open New Doors for Aussie Farmers and Business, supra.) The Department of Foreign Affairs and Trade states that

[t]he Agreement will eliminate more than 98 percent of tariffs in the free trade area. Highlights include:

  • new reductions in Japan’s tariffs on beef, (Australian exports worth $2.0 billion in 2017);
  • new access for dairy products into Japan, Canada and Mexico, including the elimination of a range of cheese tariffs into Japan covering over $100 million of trade;
  • new sugar access into the Japanese, Canadian and Mexican markets;
  • tariff reductions, and new access for our cereals and grains exporters into Japan, including, for the first time in 20 years, new access for rice products into Japan;
  • elimination of all tariffs on sheepmeat, cotton and wool;
  • elimination of tariffs on seafood, horticulture and wine; and
  • elimination of all tariffs on industrial products (manufactured goods). (TPP-11 Outcomes at a Glance, DFAT (last updated Sept. 2018).)

The Agreement will also “enhance the level of transparency and predictability for Australian services exporters across the board, reducing some regulatory risks these firms confront internationally”; “provide new opportunities for Australian businesses to bid for government procurement services contracts” in the other countries; and include “important elements which will deliver a more liberalised and predictable regime for the regulation of foreign investment, including in key sectors such as mining and resources, telecommunications and financial services.”  (Id.)

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Estonia: Government Boosts Defense Spending in 2019 Budget Bill

(Nov. 14, 2018) The government of Estonia approved the 2019 Budget Bill on September 26, 2018. (Press Release, Government of Estonia, Government Approves Budget for 2019 (Sept. 26, 2018), Government of Estonia website (in Russian).) The 2019 Budget Bill envisages total expenditures of 11.31 billion euros (€) (about US$12.8 billion). Owing to a positive economic outlook, the government is not planning to increase the tax burden in its 2019 Budget Bill. (Id.) Under Estonia’s Constitution, the Bill must be approved by Parliament in order to become law. (EESTI VABARIIGI PÕHISEADUS [CONSTITUTION OF THE REPUBLIC OF ESTONIA] art. 115, President of Estonia website.)

Several sectors (Health and Unemployment Funds, Public Transport Subsidies, Investments, and Defense) will see increase in expenditures. Under the 2019 Budget Bill defense expenditures will total €594 million (about US$677 million), which is more than 2.1% of the GDP. The government aims to increase the salaries of military personnel and boost military procurement, with the latter category making up as much as 40% of defense expenditures, according to the 2019 Budget Bill. (Government Approves Budget for 2019, supra.)

Estonia, as a NATO member country, committed itself to increasing its military spending at the 2014 NATO Summit in Bucharest to at least 2% of its GDP. In 2019, Estonia will become one of six NATO member countries to reach the 2% target. The other countries are the United States, Greece, the United Kingdom, Romania, and Poland. (Niall McCarthy, Defense Expenditures of NATO Countries, STATISTA (July 11, 2018).)

The increase in defense spending in the 2019 Budget Bill is also in line with the 2019–2022 State Budget Strategy approved by the government of Estonia on April 27, 2018. (Ministry of Finance, Riigi Eelarvestrateegia 2019–2022 [State Budget Strategy 2019–2022], Apr. 27, 2018, Government of Estonia website (in Estonian); Press Release, Government of Estonia, Government Approved the State Budget Strategy for 2019–2022 (Apr. 27, 2018), Government of Estonia website) (contains summary of State Budget Strategy).)

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China: New Regulation on Police Cybersecurity Supervision and Inspection Powers Issued

(Nov. 13, 2018) On September 15, 2018, the Ministry of Public Security (MPS) of the People’s Republic of China (PRC or China) issued a new regulation on cybersecurity supervision and inspections by the police. (Gong’an Jiguan Hulianwang Anquan Jiandu Jiancha Guiding  [Measures of Internet Security Supervision and Inspection by the Public Security Organs] (Sept. 15, 2018, effective Nov. 1, 2018) (Regulation), MPS website; Nectar Gan, Chinese Police Get Power to Inspect Internet Service Providers, South China Morning Post (Oct. 5, 2018).)

The Regulation was released on the MPS website on September 30, 2018, and took effect on Nov. 1, 2018. (Regulation.) It was formulated in accordance with the PRC Law on the People’s Police and the PRC Cybersecurity Law. (Id. art. 1.) The PRC Cybersecurity Law (also translated as the PRC Network Security Law), which was enacted on June 1, 2017, requires network operators in China to provide technical support and assistance to public security organs (the police) and national security organs that are safeguarding national security and investigating criminal activities in accordance with the Law. (Zhonghua Renmin Gongheguo Guojia Anquan Fa [PRC Cybersecurity Law] (adopted by the Standing Committee of the National People’s Congress (NPC) on Nov. 7, 2016, effective June 1, 2017) art. 28, NPC website.)

According to the Regulation, police may inspect internet service providers, including internet information providers, internet cafes, and data centers. (Regulation art. 9; Gan, supra.) It lists the general content the police are to look for, as well as specific content related to different types of internet services. (Regulation arts. 10 & 11.) In addition, it prescribes the performance of special inspections during “periods of major national network protective tasks.” (Id. article 12.)

The Regulation contains specific measures the police may take in the network security inspections, including physically entering the business sites, machine rooms, and offices; requiring managers or network safety personnel to explain items that are under inspection; reviewing and copying relevant information; and checking how technical measures to safeguard network and information security are running. (Regulation art. 14; Gan, supra.)

According to a Chinese lawyer, while the Regulation might add to concerns among foreign internet service businesses in China, there was actually “not much new in the regulation,” since the police in China have long conducted similar cybersecurity inspections in accordance with a provision in the Police Law that says police have the duty to supervise and manage security and protection work on computer information systems. (Gan, supra.; Zhonghua Renmin Gongheguo Renmin Jingcha Fa [PRC People’s Police Law] (adopted by the NPC Standing Committee on Feb. 28, 1995, amended Dec. 26, 2012) art. 6, NPC website.)

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Germany: Federal Court of Justice Rules Same-Sex Marriage Does Not Make Wife of Child’s Mother Co-parent by Law

(Nov. 9, 2018) On October 10, 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s supreme court for civil and criminal cases, held that being in a same-sex marriage does not automatically make the wife of the mother of a child co-parent by law. The Court stated that there is no legal presumption for same-sex couples similar to the one for opposite-sex couples that presumes that the husband is the baby’s father. (BGH, Oct. 10, 2018, Docket No. XII ZB 231/18, ECLI:DE:BGH:2018:101018BXIIZB231.18.0, BGH website; BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 42, 2909; corrected in 2003 BGBl. I at 738, as amended, §§ 1592, 1741, German Laws Online website.)

Facts of the Case

The plaintiffs entered into a same-sex registered partnership in May 2014. On October 12, 2017, they converted their partnership into a same-sex marriage after Germany changed the law to allow same-sex marriages. On November 3, 2017, one of the plaintiffs gave birth to a baby that was conceived via artificial insemination with semen from a sperm bank. She was recorded as the mother of the child in the register of births. No other parent was listed. (BGH at 2.)

The second plaintiff applied to the civil registry office to correct the birth entry to reflect that she is the co-mother of the child, as the child was born within marriage. The civil registry office denied her request. The court of first instance ruled in her favor, but the court of appeals reversed that decision upon appeal from the civil registry office. (Id. at 4.)

Ruling

The Federal Court of Justice upheld the decision of the court of appeals to deny the claim of the applicant. It ruled that the register of births was not incorrect, because the applicant was not a co-parent of the child. (Id. at 9.) It stated that, according to German law, the mother of the child is only the woman who gave birth to the child. (Id. at 10; CIVIL CODE § 1591.) German law does not have an  acknowledgement of maternity similar to the acknowledgement of paternity, and the law does not provide for co-motherhood for consensual artificial insemination in a same-sex relationship. (BGH at 10.)

The Court declared that the provision in the Civil Code that contains rules on paternity could not be applied in this case, either directly or by analogy. (Id. at 11; CIVIL CODE § 1592.) The rules on filiation assume that the child has a male and a female parent and do not regulate same-sex parenthood. The Court stated that neither the Act to Allow Persons of the Same Sex to Marry nor the explanatory memorandum for that Act amended section 1592 of the Civil Code or touched upon questions of filiation in general. (BGH at 13.) According to the Court, the provision cannot be applied by analogy, because there is no unintended lacuna. (Id. at 17.) It stated that even though the legislature introduced same-sex marriage to abolish discrimination of same-sex couples, one cannot assume that the legislature forgot to change the rules on filiation. (Id. at 18.) Rules on filiation are regulated separately from the effects of a marriage. (Id. at 19.)

The Federal Court of Justice noted that the German Federal Ministry of Justice and Consumer Protection has a working group that prepared a report on how to reform the rules on filiation, including questions of same-sex parenthood. The report was published several days before the Act to Allow Persons of the Same Sex to Marry was passed. It can therefore be concluded, in the opinion of the Court, that the legislature did not simply forget to address the issue of parenthood in a same-sex marriage. (Id. at 20.) In addition, the recently introduced Draft Act to Adapt the Rules on Filiation to the Act to Allow Persons of the Same Sex to Marry explicitly states that the current paternity presumption has not been extended to the wife of the mother of the child and that there is no possibility for a lesbian couple to acknowledge maternity analogous to the option for men. (Id. at 20; DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE 19/2665, at 1.)

The Court added that the situation of two married women was not similar to that of a married different-sex couple in which the wife had given birth to a child. (BGH at 21.) The legal presumption of paternity is based on the idea that it generally reflects the biological reality. This principle is not called into question by the fact that it might not always reflect the true descent. However, this is not true for the woman who is married to the mother of the child. She is—with the rare exception of the non-comparable cases of man-to-woman transsexuals—never identical with the biological father of the child. (Id. at 22.)

The Court held that the fact that the wife did not automatically become co-parent of the child due to her marriage to the mother of the child does not violate the German Basic Law—the country’s Constitution—or the European Convention on Human Rights (ECHR). (Id. at 24; GRUNDGESETZ [GG] [BASIC LAW], May 23, 1949, BGBl. I at 1, as amended, arts. 3, 6, German Laws Online website; Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] [ECHR], Nov. 4, 1950, 213 U.N.T.S. 221, art. 8, ECtHR website.) In particular, it does not constitute discrimination according to article 3 of the Basic Law. As already pointed out by the Court, the situations are not comparable and the wife cannot be the biological parent of the child. This fact justifies the different treatment of same-sex married couples according to the Court. (Id. at 28.) The Court pointed out that same-sex partners have the option of adopting the child until the law is eventually amended. (Id. at 29.)

The Court ruled that due to the aforementioned reasons, there is also no violation of article 8 of the ECHR, which regulates the right to respect for private and family life, or of the prohibition on discrimination of article 14. There is no factual foundation for a legal presumption that the child descended from the second partner. The Court concluded that the applicants were therefore not in a comparable situation to a married husband and wife in respect of the entries made in the birth certificate at the time of birth. (Id. at 30.)

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