Legitimacy Analysis And Legal Relief Of Disciplinary Measures For Refusing To Perform Military Service

On August 20,2021,the 30 th meeting of the Standing Committee of the 13 th National People’s Congress voted to approve the newly revised "Military Service Law of the People’s Republic of China",which will come into force on October 1.The newly revised Military Service Law has increased the punishment for refusal to perform military service and innovated the punishment method.This move further improves the military service system with Chinese characteristics and provides legal support for national defense and military construction.This also shows that the state attaches great importance to refusal to perform military service.It is in this context that this article examines the problems associated with disciplinary action for refusal to serve in the armed forces.It takes as a starting point the cases of heavy penalties for refusal to perform military service,which are frequently reported on the internet,and analyses the current situation of disciplinary action against refusal to perform military service and the problems involved.In terms of the conflict between military service obligation and basic rights,the existing studies are limited to the freedom of religion and the right to education,but not to property rights,employment rights,freedom of business and the right to live.On the issue of the existence of disciplinary measures,through the confusing appearance,the problem of the lower law violating the higher law has been mentioned many times,but the possibility of excessive restriction of rights by disciplinary measures has not been discussed yet;the studies on legal regulation mostly start from the improvement of the military service law and its related laws and regulations,supplemented by the implementation of alternative service.Compared with the existing studies,this paper takes into account the restrictions of disciplinary measures on citizens’ fundamental rights,and no longer limits them to the right to education and freedom of religious belief.In the analysis of the problems in the application of disciplinary measures,the three-level analysis framework of "scope of protection-restriction-constitutionality of restriction" is applied to demonstrate the problem of excessive restriction of rights in disciplinary measures.In terms of regulation,we look beyond the addition to the legal system of military service and use the existing legal instruments of regulation(constitutional and legal review)to provide new ideas to solve this problem from the perspective of reasonableness and legality.This paper uses a combination of case study methods,textual analysis methods,and literature research methods.The overall view is to see the real problem behind the situation of punishment for refusal to serve in the military and to solve the problem of punishment for refusal to serve in the military and to solve the problem of the legal system of military service in parallel,forming a logical closed loop of raising the problem of the law itself from the problem of legal affairs,solving the problem of legal affairs,and improving the legal regulation.Specifically,first,the issue of punishment for refusal to serve in the military is presented in this paper through a categorized list of cases.The research field of this paper is defined as the situation of military personnel refusing military service,and the specific disciplinary measures are extracted from the punishment notices for those who refuse military service published on the official websites of local governments,and are listed in separate articles.In addition,the nature of disciplinary measures for refusal to perform military service is defined from a theoretical perspective.The next step is to systematically sort out the various types of legislation above and below the legal responsibility for military service,starting from the normative basis for the disciplinary measures specified at the beginning of the existing punishment notices.Starting from the fact that military service is an honorable duty under the Constitution,we sort out the laws and regulations and other normative documents on which disciplinary measures are based from top to bottom.In the framework of the normative basis built up,the disciplinary measures in the actual punishment decisions are then combined with the problems of the normative basis itself,from the problem of refusal to perform military service to the problems of the normative basis itself.The analysis points out the problem of excessive restriction of citizens’ basic rights in the disciplinary measure itself and the problem of the application of the normative basis system in which the lower law contradicts the higher law and other normative documents set administrative punishment illegally."No remedy is no right",and it is an indispensable part of the due process to provide remedies to the administrative counterparts whose legitimate rights and interests are infringed.Based on the characterization of the problematic disciplinary measures as administrative punishments,we provide administrative reconsideration and administrative litigation remedies for those who refuse to perform military service whose legitimate rights and interests have been infringed.In addition,from the perspective of legislative supervision,we insist on "correcting mistakes" and effectively maintain the unity of the national rule of law,and apply for review of the constitutionality and legality of problematic laws.Finally,we return to the problems of the legal system of military service exposed by the punishment of refusal to perform military service,and suggest some improvements to the construction of the relevant system.The problem of legal affairs is,in the end,the problem of law itself.The right relief path provided to the refusers of military service at the contingent level is always formal in reality,which requires us to reflect on the problems of the existing legal system and its relief.Based on this,at the end of the article,a feasible reconciliation mechanism is proposed from three aspects: prevention mechanism,resolution mechanism,and evaluation and filing mechanism,in order to do our part in building a sound legal system for military service in China.