[1] Whether a person who had obtained permission for overseas travel after age 25 under the former Military Service Act shall be deemed to have obtained the same permission for overseas travel under the amended Military Service Act as of September 22, 2006 (affirmative)

[2] In a case where: (a) a parent, born between the parents of the Republic of Korea in 1977, who had a nationality of the Republic of Korea, acquired the citizenship of the United States and the nationality of the Republic of Korea at the same time; (b) a person who had been employed after having moved to his family and the United States in 1990, entered into the Republic of Korea in 2009; (c) the Minister of Justice notified the suspension of departure to Gap on the ground that he was subject to the obligation to serve in the military; and (d) a disposition of replacement to the military service personnel and notice

[1] Article 70(1) of the former Military Service Act (amended by Act No. 7977 of Sep. 22, 2006; hereinafter “former Military Service Act”) added "persons under obligation to make an overseas travel other than those prescribed in each of the following subparagraphs, such as those who have completed their active duty service, etc., to obtain permission from the Commissioner of the Military Manpower Administration. The amended Military Service Act (amended by Act No. 7977 of Sep. 22, 2006; hereinafter “amended Military Service Act”) amended by Act No. 9754 of Jun. 9, 2009; hereinafter “amended Military Service Act”) provides that persons under obligation to make an overseas travel without obtaining permission from the Commissioner of the Military Manpower Administration, who have obtained permission from the person under 25 years of age (excluding those on active duty, full-time reserve service, transition service, or replacement service) pursuant to Article 70(2) of the Addenda to the former Military Service Act, shall be deemed to have obtained permission for overseas travel pursuant to Article 75(15) of the amended Military Service Act.

[2] Where Party A, who was born between his parents with the citizenship of the Republic of Korea in 1977 and had been working for a company located in the United States after having acquired the citizenship of the United States and the citizenship of the Republic of Korea, entered into the Republic of Korea in 2009, and the Minister of Justice notified Party A of the suspension of departure on the ground that Party A is subject to the duty of military service, as a result of physical examination after the draft physical examination notice, and notified Party A of the call-up for public duty personnel service and the call-up notice based thereon, the case affirming the lower court’s decision that deemed that Party A, who was born abroad before he reached the age of 18 and resided abroad with his parents with the pertinent citizenship of the State, or that Party A was staying in replacement service under Article 149(1)3 of the former Enforcement Decree of the Military Service Act or Article 5 of the Military Service Act (amended by Presidential Decree No. 19789, Dec. 29, 2006; Presidential Decree No. 20657, Jul. 29, 20067).

[1] Article 70 (1) of the former Military Service Act (amended by Act No. 7977 of Sep. 22, 2006), Article 70 (1) of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 2009), and Article 70 (2) of the Addenda of the former Military Service Act (amended by Presidential Decree No. 1978 of Sep. 22, 2006) / [2] Article 70 (1) of the former Military Service Act (amended by Act No. 7977 of Sep. 22, 2006), Article 70 (1) of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 200), Article 2 of the Addenda of the Military Service Act (amended by Presidential Decree No. 1981 of Sep. 12, 2006), Article 19 (1) 4 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 9719)

Plaintiff (Law Firm Lee non-EL et al., Counsel for the plaintiff-appellant)

Seoul Military Manpower Office

Seoul High Court Decision 2011Nu6655 decided August 17, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 3

Article 70 (1) of the former Military Service Act (amended by Act No. 7977 of Sep. 22, 2006; hereinafter the same “former Military Service Act”) added "persons under obligation to serve in the military and who have completed their active duty service and who wish to travel abroad, other than those prescribed by each subparagraph, such as those who have completed their active duty service, shall obtain permission from the Commissioner of the Military Manpower Administration. The amended Military Service Act (amended by Act No. 7977 of Sept. 22, 2006; hereinafter the “amended Military Service Act”) amended on Sept. 22, 2006 (amended by Act No. 9754 of Jun. 9, 2009; hereinafter the “amended Military Service Act”) shall be deemed to have obtained permission to travel abroad pursuant to Article 70 (1) 25 of the former Military Service Act after the lapse of the measures to obtain permission to travel abroad."

Based on the evidence of employment, the court below acknowledged that the plaintiff was born between parents with the nationality of the Republic of Korea in 1977 and acquired the citizenship of the Republic of Korea at the same time, and that the plaintiff's family was living in the United States around 1990; that the plaintiff was working in a company located in the United States from around 2000 after completion of a middle school, high school, and university; that the plaintiff's father was living in Japan as a workplace issue in around 1999; that the plaintiff's father was filing a permanent return to the Republic of Korea in around 2001; according to the above facts, the plaintiff constitutes "where he was born in a foreign country before he reaches 18 years of age and resided with his parent after obtaining the citizenship of the relevant country." Thus, the court below deemed that the plaintiff obtained the permission for overseas travel pursuant to Article 149 (1) 3 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 19789, Dec. 29, 2006).

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence and the misapprehension of legal principles as to the permission for overseas travel under the amended Military Service Act, as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

The lower court determined that Article 128(1)1 of the Enforcement Decree of the Military Service Act provides that “Where a person who has obtained permission for overseas travel or permission for extension of overseas travel pursuant to Article 70(1) or (3) of the Military Service Act stays or resides abroad, the draft physical or enlistment shall be deemed postponed pursuant to Article 60(1)1, 2, or (2) of the Military Service Act.” Thus, the lower court determined that the disposition of the instant supplementary service, the disposition of the call-up for public duty personnel service, and the disposition of the call-up notice against the Plaintiff deemed to have obtained permission for overseas travel is unlawful regardless of whether the Plaintiff could contest the illegality of the disposition of the draft physical notice prior to the above disposition,

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to Article 128 (1) of the Enforcement Decree of the Military Service Act, as alleged in the

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)