Every Korean male citizen has a duty of military service as prescribed by the Military Service Act. Usually, most Korean male undergoes a draft physical examination at the age of 19. And they become exempt from the liability of enlistment from January 1 of the year when he turns into 38.
There were cases that young Koreans traveled abroad and refused to return in an attempt to run away from the conscription. Facing this problem, the Korean government had implemented an overseas travel permit system. It is basically requiring any Korean male with a military duty to obtain a travel permission. Otherwise, they can’t have overseas travel. Violation of this rule results in a criminal conviction in Korea.
This overseas travel permit, however, had created so many careless offenders. Especially those born in or immigrated to a foreign country at an early age was ignorant of this system. In some cases, they were in dual citizenship status, and they don’t think of themselves as Korean. But, the chances are, under Korean citizenship law, they are still under the regulation of the Korean Military Service Act.
The good news is that the Korean government had implemented a special exception to the overseas travel permit and conscription. This applied to a Korean who was born abroad or lives abroad for a long period of time.
In this article, our Korean military law attorney will explain the basics of the overseas travel permit and the military service duty of any overseas Korean immigrant.
Overseas Travel Permit
Any Korean male between the age of 25 and 37 who hasn’t yet fulfilled his military service duty and wishes to travel or stay overseas needs to get an overseas travel permission from the Military Manpower Administration (MMA).
If the person departed Korea before the age of 25, he must receive this travel permit by January 15 of the year he turns 25.
The permitted period of foreign travel and stay is determined by the purpose of the travel/stay. The enforcement decree of the Military Service Act provides a detail of the permitted period for each purpose.
If you need to stay over the period originally granted, you should apply for an overseas travel period extension permit.
Special Treatment for Overseas Korean Immigrants
There are several exactions applicable to overseas Korean immigrants. One of them is a Korean who or whose parent obtained foreign citizenship or a permanent resident status before the age of 25. If this type of person has lived abroad with his parents continuously, he is deemed to obtain an overseas travel permit until the age of 37. (“Automatic Overseas Travel Permit”)
What does this “age of 37” mean? As explained, the Korean military service duty becomes extinct from January 1 of the year when he turns into 38. That said, the Automatic Overseas Travel Permit practically gives an exemption from military service, so long as the travel permit is still intact.
Cancellation of Overseas Travel Permit
Yes, the MMA can cancel the Automatic Overseas Travel Permit. The Automatic Overseas Travel Permit for overseas Korean immigrants is established to respect the continuity of foreign life. Therefore, if the Korean immigrant’s life actually centers in South Korea, It is a natural logic that this special treatment shall not be given.
As a result, the Korean Military Service Act sets out certain events that trigger the cancellation of the automatic Overseas Travel Permit. One of them is when the person stays more than 6 months in any year or when the person engages in any for-profit activities in Korea.
Special Treatment for Second-Generation Koreans
What is the Second-Generation Korean?
A certain category of Korean immigrants can stay longer than 6 months without putting themselves at risk of conscription. It is called a second-generation Koreans.
Under Korean law, a second-generation Korean refers to a person who himself and his parents have continued to reside in a foreign country until the age of 17 after he was born in a foreign country (including any person who left Korea for a foreign country before he turned 6 years of age) and falls under certain requirements. One of those requirements is a person who has obtained foreign citizenship or permanent residency status. So, for example, if you were born in the U.S and you and your parents were naturalized as U.S. citizens, you can say that you are a second-generation Korean.
It should, however, be noted that, if the person had stayed in Korea for a total of 90 days or more in a period of any year between the age of 7 and 17, he cannot be registered as a second-generation Korean.
The person can get a confirmation of a second-generation Korean status by filing an application with the MMA.
Benefit of Second-Generation Koreans
When you are a second-generation Korean, your military service duty is automatically deferred to the age of 37. And, more importantly, unlike other overseas Korean emigrants, you can stay in Korea up to 3 years after turning 18.
Revocation of Second-Generation Korean Status
If your days of stay in Korea exceed 3 years, your qualification as a second-generation Korean is revoked. But this does not mean you are automatically conscripted. Your oversea travel permit until the age of 37 as a Korean immigrant is still valid. Thus, you will be conscripted only when you violate the oversea travel permits. Most common events are staying 6 months or more per year in Korea or working for profits in Korea.
Call for Attention : Potential Criminal Liability
Korean laws on military service are very complicated. They keep changing and this requires special attention. For example, the automatic overseas travel permit system didn’t exist back in the old days. Due to this, we have seen many cases where the Korean immigrants to the U.S. had become the criminals in Korea due to their ignorance of the overseas travel permit system. The Korean prosecutors and Korean courts issue a search warrant and their Korea passport cannot be re-issued or extended. When they try to pass the Korean border, they can be arrested by the immigration officer. Although we have successfully represented those people to clear their criminal charges while they stay in the U.S. and don’t come to Korea, it is always advisable to have a consultation with a Korean lawyer in advance to verify your status under the Korean military Service Act.
For further information, please contact us by clicking here.
Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations.
© 2020 All rights reserved.