Law Firm Shin, Attorney Choi Young-young, Counsel for the plaintiff-appellant-appellant

Attorney Kim Jong-hoon

2. The costs of appeal shall be borne by the Plaintiff.

The reasoning of this Court’s explanation concerning this case is as follows. The reasoning of the judgment of the court of first instance is as follows, and the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance, except for an additional determination as to the newly asserted matters by the plaintiff in this court. Thus, it is cited as it is in accordance with Article 8(2

○ 5 lines “F, a consulting company located in Malaysia,” shall be deemed to be Malaysia G located in Malaysia, and the portion “from March 17, 2018 to 4 lines “from March 17, 2018 to work for the said company after leaving the Republic of Korea on March 17, 2018” shall be deemed to be “F, a consulting company located in Malaysia, who returned to the Republic of Korea on June 7, 2019 after withdrawal.”

(1) From 6th to 9th lines, "Therefore, there exists either to 9th lines" are as follows:

Therefore, although the original disposition of this case cannot be deemed to have satisfied the requirements for obtaining permission for overseas travel under the Military Service Act at the time, there is a defect that permits the extension of overseas travel (On the other hand, the defendant's excessive requirements are due to the fact that the plaintiff who obtained permission for short-term overseas travel left Canada and applied for the extension of overseas travel through the U.S. consulate, and that the plaintiff actively caused the defendant's mistake, such as entering the Republic of Korea, attaching a copy of the written permission for overseas travel to the defendant.

2. Additional determination

A. The plaintiff's assertion

In the lower part of Article 5 [Attachment 2] of the Regulations on the Business of Overseas Travel (hereinafter “Overseas Travel Regulations”), “Where a person liable for military service resides in a third country, other than his father and mother’s residing country, it shall be deemed that the person liable for military service resides together with his parent.” Thus, even if the Plaintiff left her mother who is not his parent’s living in Malaysia and resides in Malaysia, it shall not be deemed that the Plaintiff’s failure to maintain the requirements for permission of overseas travel (Article 147-2(1)5 of the Enforcement Decree of the former Military Service Act (amended by Presidential Decree No. 28905, May 28, 2018). Therefore, the disposition of revocation in this case is unlawful as it is in the absence of grounds for revocation under the Military Service Act.

B. Determination

In full view of the above evidence and the following circumstances revealed in light of the purport of Gap evidence No. 8 and the entire arguments, it is reasonable to view that the plaintiff's employment and resided in a third country, not the United States, which is the destination of the original disposition of this case, constitutes a case where the requirements for permission of the original disposition of this case cannot be maintained, and thus, there exists a ground for revocation as prescribed by the Military Service Act and subordinate statutes. Accordingly, the plaintiff

(1) Where it is difficult for a person who has obtained permission for overseas travel to return to the Republic of Korea, the Commissioner of the Military Manpower Administration shall obtain permission for extension of the period of overseas travel or permission for overseas travel 15 days before the expiration of the period of overseas travel, and the Commissioner of the Military Manpower Administration may grant permission to the extent that it does not interfere with the imposition of the duty of military service, taking into account the applicant’s purpose of staying abroad (Article 70(3) and (4) of the Military Service Act and Article 147(2) of the Enforcement Decree of the former Military Service Act). Meanwhile, the Commissioner of the Military Manpower Administration may cancel the permission for overseas travel and impose the duty of military service if a person who has obtained permission for overseas travel fails to maintain the requirements of such permission (Article 147-2(1)5 of the Enforcement Decree of the Military Service Act). This means that the Commissioner of the Military Manpower Administration may remove unreasonable points arising from uniform conscription by allowing the applicant to grant permission for overseas travel, but if a person who has obtained permission fails to meet the requirements

② The letter of permission for extension of the period of overseas travel of the original disposition of this case contains the following documents: (a) the travel purpose of the travel is “ father or mother sovereignty,” and the travel country’s name is “U.S.”; (b) the family resident confirmation certificate at the time of application for permission for overseas travel; (c) the copy of the status of stay (written permission); and (d) the passport of the father or mother’s residence; and (c) other documents evidencing the fact of overseas travel (attached Table 2); (d) the Plaintiff submitted to the U.S. Vice and High School graduate in the U.S.; (c) the copy of the written permission for admission to the U.S.; (d) the Plaintiff submitted a copy of the U.S. entrance; (e) the documents verifying the address address due to the U.S. New Airport in the U.S.; and (e) the Defendant appears to have determined the scope of the Plaintiff’s stay in the U.S. and the duty of military service.

③ Article 146(2) of the former Enforcement Decree of the Military Service Act provides that, at the bottom of Article 5 [Attachment 2] of the Overseas Travel Regulations pursuant to delegation by Article 146(2) of the former Enforcement Decree, even if a person liable for military service resides in a third country other than his parent’s residence, the person liable for military service shall be deemed to reside together with his parent. However, in light of the aforementioned circumstances, even if the person liable for military service resides in a third country other than his father/ mother’s residence at the time of permission, the above [Attachment 2] provision provides that permission for overseas travel may be granted if it is deemed that there is no hindrance to the imposition of military service in consideration of specific circumstances, and it is not interpreted that the initial requirements for

(2) The Plaintiff argues that the Plaintiff’s relocation to a third country, which is not originally permitted to travel abroad, infringes on the Plaintiff’s freedom to move to a third country. However, in light of the public interest that should maintain fairness and fairness in the duty of military service by strictly managing military service resources, it is difficult to deem that the above restriction alone infringes on the Plaintiff’s freedom to move to a third country.

6. Meanwhile, permission for extension of overseas travel is applied for cases where a person who obtained permission for overseas travel is unable to return to Korea (Article 70(3) of the Military Service Act). When it is anticipated that the Plaintiff would not accept the application for permission for overseas travel in Korea, the Plaintiff left Canada with permission for short-term overseas travel (from October 9, 2017 to December 31, 2017) and applied for permission for extension of overseas travel through the U.S. consular branch. In addition, it appears that the Plaintiff would have planned to return to Korea within close time as at the time of obtaining permission for short-term overseas travel ( February 20, 2018) and it would have been expected that the Plaintiff would have applied for permission for extension of overseas travel in Korea for extension of overseas travel for three months or more, not for extension of overseas travel by the parent of the first long-term overseas travel.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed.

Judges Gin Sung-ju

Judge Park Jong-hoon