[병역면제부결처분취소등][공1996.10.1.(19),2890]
[1] The legal nature of a disposition of exemption from military service, which is the director of the regional military manpower office in a legal domicile, against a person acquiring foreign permanent sovereignty exempted from military service under Article 24 (2)
[2] Whether a disposition to impose the duty of military service again on a person who has obtained foreign permanent sovereignty and resides in Korea after exemption from the duty of military service under the former Military Service Act is void as a matter of course (affirmative)
[1] The purpose of Article 24(2) of the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983) is to interpret that a person who has obtained permanent residence abroad such as Japan is naturally exempted from military service. The provisions of Article 44 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 11511 of Sep. 22, 1984) and Article 53 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 370 of May 7, 1985) concerning the exemption of a director of a regional military manpower office at a permanent domicile under Article 53 of the same Act are merely a mere provision of follow-up reorganization proceedings for those who have been exempted from military service pursuant to Article 24(2) of the former Military Service Act.
[2] The case holding that where a person who had resided in the Republic of Korea for a considerable period after obtaining permanent residence rights has again imposed the duty of military service, whether he had resided in the Republic of Korea since he had been exempted from the duty of military service under Article 24 (2) of the former Military Service Act shall not affect the duty of military service already exempted, and thus, the disposition of imposing
[1] Article 24(2) of the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983); Article 44 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 11511 of Sep. 22, 1984); Article 65(4) of the Military Service Act (amended by Act No. 4685 of Dec. 31, 1993); Article 113(3) of the Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 14397 of Oct. 6, 1994); Article 19 of the Administrative Litigation Act / [2] Article 24(2) of the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983); Article 15(1) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 14697 of Apr. 16, 1984)
[1] Supreme Court Decision 73Nu248 delivered on August 20, 1974 (Gong1974, 8014), Supreme Court Decision 93Nu199 delivered on September 24, 1993 (Gong1993Ha, 2978), Supreme Court Decision 94Nu13794 delivered on May 12, 1995 (Gong195Ha, 2130), Supreme Court Decision 95Nu194 delivered on June 9, 1995 (Gong195Ha, 2403)
[Judgment of the court below]
The Director General of the Suwon
Seoul High Court Decision 95Gu9695 delivered on November 1, 1995
The part of the judgment of the court below concerning the confirmation of invalidity of a disposition of exemption from military service is reversed, and that part of the lawsuit is dismissed. The remaining appeal by the defendant is dismissed. The costs of appeal as to the appeal are assessed against the defendant and the total costs of appeal as to retirement
1. According to the reasoning of the judgment below, the court below determined that the plaintiff was exempted from military service under Article 44 of the Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 3696 of Dec. 31, 1983) and Article 24 (2) of the former Military Service Act (amended by Presidential Decree No. 3696 of Dec. 31, 1983; hereinafter referred to as the "former Military Service Act") on the ground that the plaintiff, as a male of the Republic of Korea on April 2, 1964, his former family had moved to the United States and acquired permanent residence rights, and the plaintiff was naturally exempted from military service under Article 53 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 11511 of Sep. 22, 1984) on the ground that he had been released from military service under Article 94 of the same Act (amended by Presidential Decree No. 370 of May 7, 1985) on the ground that he had been discharged from military service within Korea. 194.
2. We examine ex officio a request for a disposition of exemption from military service.
The purport of Article 24(2) of the former Military Service Act is to interpret that a person who has obtained permanent residence abroad such as Japan is naturally exempted from military service. The provision on exemption from military service by the director of a regional military manpower office at the permanent domicile under Article 44 of the Enforcement Decree of the same Act and Article 53 of the Enforcement Decree of the same Act is merely a provision on a simple follow-up reorganization procedure for those exempted from military service under Article 24(2) of the former Military Service Act (see Supreme Court Decision 73Nu248 delivered on August 20, 1974).
Meanwhile, the disposition of an administrative agency, which is the object of an administrative litigation under the Administrative Litigation Act, means an act of an administrative agency under public law, which is directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes with respect to a specific matter, or giving rise to other legal effects (see Supreme Court Decisions 94Nu13794 delivered on May 12, 1995, 93Nu1199 delivered on September 24, 1993, etc.).
Therefore, even if the defendant revokes the above exemption from military service executed as a part of the administrative agency's simple administrative procedure, it cannot be considered an administrative disposition subject to appeal litigation because it does not have any legal effect or direct relation to the rights and duties of the people.
The court below should have dismissed ex officio the plaintiff's claim against the disposition of revocation of the above exemption from military service, but it did not reach this point, and further examined and judged on the merits as administrative disposition. The above measures of the court below are unlawful.
3. We examine the Defendant’s grounds of appeal on the remainder of claims.
Examining relevant evidence in light of the records, the court below acknowledged facts as stated in its holding, and held that the defendant's imposition of a new duty of military service on the plaintiff who has been exempted from the duty of military service as a matter of course by law is a disposition of invalidation due to a grave and apparent defect, and there is no error of incomplete deliberation or misapprehension of legal principles as
Since the plaintiff and his family members have resided in Korea for a considerable period after acquiring permanent residence rights, they may again impose military service on the plaintiff. However, as long as they have been exempted from military service under Article 24 (2) of the former Military Service Act, whether they have resided in Korea after such exemption shall not affect the military service already exempted. Therefore, we cannot accept this issue.
4. Therefore, the part of the judgment of the court below as to the confirmation of invalidity of the above disposition of exemption from military service is reversed, and the remaining grounds of appeal by the defendant are dismissed without merit. The costs of appeal as to the dismissal of the appeal are assessed against the defendant and the total costs of appeal as to the retirement are assessed against the plaintiff. It is so decided as per Disposition by the assent of all
Justices Ahn Yong-sik (Presiding Justice)