2. B

2. The costs of lawsuit are assessed against the defendant.

A. On November 2001, the non-party company was selected as a designated enterprise in which the industrial technical personnel will serve in accordance with Article 36 of the Military Service Act.

B. On June 29, 2001, Plaintiff A was subject to the disposition of replacement, Plaintiff B was subject to the disposition of enlistment in active service on October 15, 2002, and Plaintiff B was subject to the disposition of enlistment in active service, and thereafter, Plaintiff A was subject to the disposition of enlistment in active service from each Defendant on October 15, 2002, and Plaintiff B was employed by each of the non-party companies on March 29, 2004; Plaintiff B was engaged in the development of software at the Technology Development Headquarters on December 27, 2004; Plaintiff A was subject to the disposition of enlistment in the industrial technical personnel from each of the Defendant on June 23, 2005.

C. However, on June 14, 2006, the Defendant issued a disposition to revoke the transfer of the Plaintiff to industrial technical personnel to the Plaintiff on the ground that the said Plaintiff worked for a non-designated entity, not a designated entity, at the time of incorporation from February 20, 2006 to May 9, 2006, with respect to Plaintiff B, on the ground that the said Plaintiff worked for a non-designated entity, not at the time of incorporation into a designated entity from June 23, 2005 to May 9, 2006 (hereinafter referred to as “instant disposition”).

【Unstrifed facts, Gap 1 through 4's evidence, Eul 1's evidence, Eul 2-1, Eul 2-2's evidence, Eul 3's evidence, and Eul 4-1 through 3's evidence, respectively.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs did not work at the non-designated entity, but at the non-designated entity's workplace while working at the non-designated entity, and there is no reason for the disposition of this case, and even if the plaintiffs worked at the non-designated entity, this is merely a reason for the extension of the period of mandatory service, not for the reason for the revocation of incorporation of the non-designated entity, and the disposition of this case is in violation of the principle of trust as it goes against the defendant's speech and behavior. Thus, the disposition of this case is unlawful.

(b) Relevant statutes;

As shown in the attached Form.

(c) Facts of recognition;

(1) The non-party company is a service provider of electronic books (e - Dok) and runs the business of selling electronic books through the Internet and mobile phones, etc.

(2) Co., Ltd. (hereinafter referred to as “C”) is a technical company specializing in electronic books, and there is no selected industrial technical personnel as a designated entity to be engaged in industrial technical personnel under Article 36 of the Military Service Act until now.

(3) On January 10, 2005, June 30 of the same year, and December 29 of the same year, C entered into a development services contract with the non-party company, and accordingly, has carried out the operation of the electronic book program for the non-party company and the new development services.

(4) The distance between the non-party company and C takes about seven minutes by Do newsletters, and the employees of the non-party association have visited C from time to time to time and consulted on the work with C in the course of developing the program in accordance with the above development services agreement.

(5) After joining the non-party company, the plaintiffs were participating in the various projects of the non-party company, among which they were conducted from July 2005 to December 20 of the same year) and the BTVM project (it is conducted from January 2006 to July 200 of the same year). In the event of carrying out the projects entrusted with the development of the program to C in accordance with the above development services contract, the plaintiffs performed their duties in accordance with the directions of the company's company.

(6) Meanwhile, until the time when the plaintiffs entered the non-party company and the disposition of this case, the plaintiffs received benefits and overtime work allowances from the non-party company, and the non-party company was so-called four insurances, such as medical insurance, etc., and the non-party company was able to collect labor income tax from the plaintiffs.

(7) On May 8, 2006, F reported to the effect that, while serving as a skilled industrial personnel in the non-party company, the non-party company is forcing the non-party company to serve on the non-party company to serve on the non-party company at a place other than the designated entity. The defendant conducted a fact-finding survey on the service status of the non-party company's skilled industrial personnel on May 9, 2006.

(8) At the time of the above fact-finding survey, the plaintiffs were found to have worked in C, and D, the representative director of the non-party company, was divided into the parts of the technology development of the non-party company, and assigned the previous researchers to C. In the process, the plaintiffs (for plaintiffs A, from February 2006, and from the date of entry in the case of plaintiffs B, from February 2006) were dispatched to C. The plaintiffs were sent to the non-party company in the form of business trip. The plaintiffs were written confirmation that the non-party company's head of the non-party company's management support office (person in charge of skilled industrial personnel) was working in C. The plaintiffs were present in C, and that the non-party company was not working in the non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party.

(9) Accordingly, the Defendant rendered the instant disposition on June 14, 2006 on the ground that the Plaintiffs were working in C.

(10) On the other hand, on April 13, 2006, 000, public officials belonging to the defendant, conducted a fact-finding survey on the designated entity of the non-party company, and expressed to the non-party company the opinion that the plaintiffs and the non-party company did not err in the working conditions of the plaintiffs.

[Ground of recognition] Evidence A 5, evidence A 6-1 through 4, evidence A 7 through 10-1, 2, evidence A 12 through 30, evidence A 31-1, 2, A 32 through 34, evidence A 35-1 through 36, 40, 41 evidence A, evidence A 42-1 through 19, A 43, 444, evidence A 45-1 through 3, evidence A46, evidence 47, evidence B 7-1, evidence B-7-2, evidence B-9, evidence B-1, 10-1 through 30, evidence each of 1, 21-1, 20-1, and 30-1, 30-1, 30-1, and 30-1, respectively.

D. Determination

(1) Grounds for disposition against the plaintiffs

According to the above facts, it is reasonable to view that the plaintiffs worked for non-designated entities which were not designated entities at the time of the incorporation of industrial technical personnel into the designated entity upon the direction of the head of the designated entity (i.e., they did not engage in the field concerned with the branch office at the time of incorporation). The defendant has a reason to revoke the transfer of industrial personnel to the plaintiffs (Articles 41(1)1-2 and 40 subparag. 2 of the Military Service Act), and in the case of the plaintiffs, there is a reason to extend the period of mandatory service at their discretion according to whether it is possible to extend the period of compulsory service under attached Table 3 of the Enforcement Decree of the Military Service Act (proviso to Article 41(1) of the Military Service Act, and Article 91-3 of the Enforcement Decree of the Military Service

(2) In the case of the plaintiffs, whether an extension of the mandatory service period is feasible under the Enforcement Decree of the Military Service Act [Attachment 3]

(A) The Enforcement Decree of the Military Service Act providing the criteria for extending the mandatory service period of industrial technical personnel [Attachment 3] shall be divided into "where a person works for another business entity that is not a designated entity at the time of transfer" and "where a person works for another business entity that is not a designated entity," without approval or notification of change of the position, he shall be allowed to engage in the extension only when the period is less than one month, and in the case of the former, he shall be allowed to engage in the extension only when the period is less than one month, and in the case of the latter, not less than three months but less than six months, he shall be allowed to engage in the extension of the period, and in the case of the latter, the extent of sanctions according to the above type shall be limited to 10 months and less than 3 months, and it shall be limited to "where a person works for another business entity without approval or notification of change of the status of the designated entity" under Article 36 and 37 of the Military Service Act. Thus, in essence, it shall be limited to "when the first designated and the designated entity is in the first designated entity."

(B) With respect to this case, although the plaintiffs were working for non-designated entities, according to the above facts of recognition, it is reasonable to view that the plaintiffs performed their duties in the relevant field at a place other than the designated entity only within the scope of the management and supervision of the head of the designated entity. Accordingly, in the case of the plaintiffs, it is not corresponding to "when the plaintiffs worked for a business entity that cannot be dispatched" but falls under "when the plaintiffs were on duty for education and training travel and dispatch without the approval or notification on changes in status," and the criteria under the attached Table 3 of the Enforcement Decree of the Military Service Act should be applied to 1.b. of the Enforcement Decree of the Military Service Act.

(C) Furthermore, even if the reasons for the disposition specified in the instant disposition for Plaintiff A are based on the reasons for the disposition specified in the instant disposition, the period for which the Plaintiff worked in the non-designated entity is less than two months and not more than two months, and in the case of Plaintiff B, it is insufficient to recognize that the Plaintiff was working in the non-designated entity for more than six months in excess of the above recognition and the violation period (one month and 11 days) committed by the Plaintiff, and there is no other evidence to support this otherwise, it is possible to extend the mandatory service period under Table 3 of the Enforcement Decree of the Military Service Act for the Plaintiffs.

(3) Whether the instant disposition deviates from or abused discretion

Therefore, the defendant may, at his own discretion, take a disposition to revoke the enlistment as a skilled industrial personnel or extend the period of mandatory service to the plaintiffs. Although the plaintiffs submitted a written oath of disappearance pursuant to Article 39(4) of the Military Service Act, they did not report the fact of non-designated work. Even if they were to do so, the plaintiffs' work requires close cooperation with C, the plaintiffs' work in C according to the commercial order, the plaintiffs' work in C is very close to the non-party company and C's business place, the non-party company and C's business place are located, the plaintiffs who worked in the non-party company prior to being subject to the disposition of enlistment as a skilled industrial personnel and live in the non-party company as a member of the non-party company, who

In light of all circumstances revealed in the argument of this case, such as the fact that it was difficult to clearly recognize that the disposition of this case was illegal or that it was difficult to report it, it is deemed that the disposition of this case is an excessive disposition that has lost balance compared to the degree of the violation as the reason for the disposition of this case, and is unlawful by deviation or abuse of discretionary power.

3. Conclusion

Therefore, the plaintiffs' claim seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Dok-Jon Line

Judges Jeong Jong-do

[The Military Service Act (amended by Act No. 7897 of March 24, 2006)]

Article 39 (Service of Expert Research Personnel and Industrial Technical Personnel)

(3) The technical research personnel or skilled industrial personnel shall serve in the field concerned with the designated enterprise at the time of their transfer.

prescribed by the Presidential Decree, such as the closure of a designated entity, and the number of its related affairs;

at the time of incorporation due to dispatch, education, training, academic and technical guidance, or other unavoidable reasons;

As prescribed by the Presidential Decree because it is impossible to serve in the field concerned of the

shall not apply in the case of obtaining the approval or permission.

Article 40 (Notification of Personal Changes of Technical Research Personnel and Skilled Industrial Personnel)

The head of a designated entity (including a person in charge of personnel management for the head of a designated entity), the head of the Agricultural Technology Center (where the Agricultural Technology Center is not established, the head of the competent Si/Gun), or the head of the Fisheries Technology and Management Office (limited to cases of succeeding farmers and fishermen) shall notify the director of the competent regional military manpower office within 14 days when technical research personnel or skilled industrial personnel or such designated entity falls under any of the following subparagraphs:

2. When the designated enterprise has not engaged in the relevant field at the time of its incorporation;

Article 41 (Cancellation of Transfer of Technical Research Personnel and Skilled Industrial Personnel and Imposition of Obligations)

(1) The director of the competent regional office of manpower administration shall assign expert research personnel or skilled industrial personnel service to:

of the designated entity at which the incorporation is to be cancelled: Provided, That a company dismissed by the designated entity engaged in such business;

flood makes a request for remedy to the Labor Relations Commission under Article 33(1) of the Labor Standards Act, or to the court;

When a lawsuit disputing the effect of dismissal is pending in court by filing a lawsuit, under the conditions as prescribed by the Presidential Decree.

may reserve the cancellation of the incorporation until the result thereof becomes final and conclusive, and shall

(1) When any person falls under any cause prescribed by Presidential Decree, such person shall be incorporated under Presidential Decree.

to the extent that the person does not cancel the contract and does not engage in the field concerned, the period of mandatory service shall be extended.

(2) may be held without charge.

1-2. When he falls under any of subparagraphs 1, 2, 2-2, and 3 through 5 of Article 40;

[Enforcement Decree of the Military Service Act]

Article 91-3 (Extension of Technical Research Personnel, etc.)

(1) "Grounds prescribed by Presidential Decree" in the proviso to Article 41 (1) of the Act means the year under the provisions of subparagraph 2 of Article 40 of the Act.

(2) The standards for extending the period of mandatory service under the proviso of Article 41 (1) of the Act shall be as shown in the annexed Table 3.

[Attachment 3] Standard for Extension of Period of Mandatory Service of Technical Research Personnel (Related to Article 91-3(2))

A person shall be appointed.

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