Whether the scope of "persons who have obtained permanent residence with their family members in a foreign country" who are subject to a disposition of exemption from military service under Article 64 (1) 2 of the Military Service Act includes "persons who have obtained foreign citizenship and stay and reside with their family members in a foreign country" (affirmative)

A person who acquired a citizenship of a foreign country by birth, and was able to obtain a permanent residence from the birth to the time of application for exemption from military service with his family members, shall be eligible for a disposition of exemption from military service under Article 64 (1) 2 of the Military Service Act, and a person who obtained a permanent residence with his family members in a foreign country.

Article 64 (1) 2 of the Military Service Act

Supreme Court Decision 96Nu1194 delivered on June 9, 1995, Supreme Court Decision 2001Du7251 Delivered on November 9, 2001 (Gong2002Sang, 57)

Park Dong-sik (Law Firm Shin, Attorneys Song Jae-sik, Counsel for the plaintiff-appellant)

Seoul Military Manpower Office

Seoul High Court Decision 2001Nu8256 delivered on May 3, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The judgment of the court below

According to the reasoning of the judgment of the court of first instance, even if the court below acknowledged that the first instance court did not have the right of permanent residence of the Republic of Korea on January 3, 1976, the plaintiff was a dual citizen who was born between his father and mother of New Zealand and did not have the right of permanent residence in the Republic of Korea for the purpose of enabling them to return home without permission for the first time until he returned home, and thus, the court below determined that the defendant was exempted from the duty of military service under the proviso of Article 64 (1) 2 of the Military Service Act for the purpose of enabling them to acquire the right of permanent residence of the Republic of Korea for the purpose of enabling them to return home without permission for the first time to obtain the right of permanent residence of the Republic of Korea on January 12, 200. On the other hand, the plaintiff and his parents were living outside the Republic of Korea on November 17, 200, and thus exempted from the duty of military service under the proviso of the first instance court Decree.

2. Judgment of the Supreme Court

However, the legislative purport of Article 64 (1) 2 of the Military Service Act is as follows: (a) it is inappropriate to enforce the duty of military service for those who have been staying in a foreign country for the purpose of staying and staying together with their family members in the foreign country; and (b) it is also meaningful to respect the freedom of stay guaranteed in the Constitution and the sovereignty of the country in which the plaintiff acquired the permanent residency from his family members in the foreign country for the purpose of staying and staying permanently; and (c) as long as it is inappropriate to enforce the duty of military service for those who have already been staying in the foreign country for the purpose of staying and staying permanently, the plaintiff may not be exempted from the duty of military service for the reason that they would not have obtained the permanent residency from his family members in the foreign country for more than 6 years, such as the right of stay and staying in the foreign country for the reason that they would not have obtained the right of stay and staying in the foreign country for more than 4 years as the right of stay and staying in the foreign country.

Nevertheless, the court below held that the plaintiff does not constitute "a person who has obtained a permanent resident right with his family in a foreign country" under Article 64 (1) 2 of the Military Service Act merely because the plaintiff is a dual national with a foreign citizen's citizenship. Thus, there is an error in the misapprehension of legal principles as to "a person who has obtained a permanent resident right with his family in a foreign country" under Article 64 (1) 2 of the Military Service Act. The ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)