A Study On The Legal Responsibility Of Citizens For Refusal To Military Service

Our country’s Constitution stipulates that citizens have a constitutional duty to perform military service.The obligation of citizens to perform military service is a kind of responsibility of citizens relative to the state,and the fulfillment of this obligation is a kind of political responsibility and responsibility that citizens undertake for the existence,continuation and development of the state as a member of the political community.At the same time,the duty of citizens to perform military service has a constitutional rank,which is not only determined by the explicit provisions of the constitutional text on the duty,but also by the relationship between the performance of the duty and the basic rights of citizens.In the process of implement the duty,emphasis is placed on the protection of basic rights.By sorting out the "Military Service Law" and local conscription normative documents,the legal responsibilities of citizens for refusing to perform military service can be displayed in specific manner,and the specific legal responsibilities shall be detailed.The types of legal liability for citizens who refuse to perform military service set forth in the Military Service Law include not being employed as civil servants or staff members managed with reference to the Civil Servant Law of the People’s Republic of China;Those who leave the country or go to higher education and resume their studies shall be included in the list of seriously untrustworthy subjects performing national defense obligations for joint punishment.The specific implementation of citizens’ legal liability for refusal to perform military service set forth in the "Military Service Law" involves restrictions on citizens’ basic rights in many aspects.In the consideration of substantive constitutionality,the proportionality principle used by the German Federal Constitutional Court in reviewing constitutional proceedings is introduced as the review benchmark,and whether the specific form of responsibility meets the constitutionality requirements is judged by examining the various constituent elements of the proportionality principle.The review of the legal liability of citizens for objecting to military service can be carried out from two aspects: legality review and constitutionality review.There is a problem that the local conscription normative documents exceed the legislative authority and do not conform to the spirit of the Legislative Law,and should be revised in a timely manner in accordance with the provisions of the Military Service Law.While passing the legality review,the local conscription normative documents should still pass the constitutionality review in order to follow the principle of law in accordance with the constitution.Its review is mainly based on legality review.While the local military recruitment normative documents pass the legality review,that is,the relevant legal responsibilities are set within the statutory legislative authority,it should still be considered whether they meet the requirements of the appropriateness review.The setting of legal responsibilities in local conscription normative documents should follow the principle of prohibiting improper association,the principle of administration according to law,and the principle of fairness.The restriction on citizens’ right to education by not being allowed to enter or resume school within two years as stipulated in the "Military Service Law" cannot pass the test of the principle of proportionality,and should be revised.For citizens who refuse to perform military service and are included in the list of untrustworthy subjects for joint punishment,the content and basis of punishment should be clearly defined,as well as the specific department responsible for implementation.The determination of the specific content should be substantially related to promoting citizens to actively perform their military service obligations.The establishment of the legal responsibility of citizens for refusing military service should pay attention to the protection of citizens’ basic rights while maintaining national interests,so that the performance of basic obligations does not lead to the absence of protection of citizens’ basic rights.Make the setting of legal liability for refusal to perform military service in line with the principles and spirit of the Constitution,adhere to legislation in accordance with the law and in accordance with the Constitution,and further promote the implementation of the Constitution on the basis of abiding by the Constitution.