[병역법위반][공1990.5.1.(871),918]
In case where an employee dismissed from a defense industry company has evaded the enlistment in accordance with the defense draft enlistment certificate issued in the course of the lawsuit seeking confirmation of invalidity of dismissal, and has a legitimate reason
If the Daegu Military Manpower Administration, who was notified by the defense industry company that the defendant was dismissed, issued a special supplemental service and the certificate of enlistment for the defense call, cancelled the incorporation of the defendant into the defense industry company, and issued the certificate of enlistment for the defendant, the act of issuing the certificate cannot be deemed as null and void as a matter of course, and the proviso of Article 3 subparag. 4 of the Trade Union Act provides that the person who is dissatisfied with the validity of the dismissal shall not be interpreted as a person who is not a worker of the trade union, and is not related to the labor relations between the employer and the worker, and therefore, the validity of the enlistment warrant in this case cannot be asserted on the ground of the above provision. Although the defendant had already filed a lawsuit seeking nullification of the dismissal against the above company and the defendant was damaged by the issuance of the written enlistment
Article 77 (1) of the Military Service Act, proviso to Article 3 (4) of the Trade Union Act
Defendant
Defendant
Daegu District Court Decision 89No1238 delivered on November 9, 1989
The appeal is dismissed.
We examine the grounds of appeal.
If the Daegu Commissioner of the Military Manpower Administration, upon receipt of the notice of dismissal of the defendant from the Pungsan Metal Co., Ltd., the defense industry company, cancelled the incorporation of the defendant into the special recruit service and issued the defense call-up warrant, the act of issuing the warrant cannot be deemed as automatically null and void, and the proviso of Article 3 subparag. 4 of the Trade Union Act is not only the qualification for becoming a member of the trade union, but also the labor relationship between the employer
In addition, even if the defendant filed a lawsuit seeking confirmation of invalidity of the above dismissal against the above company, and the defendant suffered damage due to the issuance of the enlistment certificate in this case before rendering a judgment, this does not constitute justifiable grounds for evading enlistment under Article 77(1) of the Military Service Act. (A) According to the records, the defendant applied for postponement of enlistment date to the director of the regional military manpower office having jurisdiction over the military manpower office, but did not accept the application for postponement of enlistment date, and applied for a provisional disposition of enlistment notice to the Daegu High Court, but also dismissed.)
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Ansan-man (Presiding Justice)