207Guhap45118 Disposition of revocation of enlistment in active duty service.

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Seoul Military Manpower Office

March 26, 2008

April 23, 2008

1. The lawsuit of this case is dismissed.

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

The defendant revoked the enlistment in active duty service on December 17, 2007 against the plaintiff on November 29, 2007.

1. Details of the instant case

A. On December 26, 2002, the Plaintiff was transferred to industrial technical personnel on November 1, 2005, and was subject to a disposition upon expiration of the service of industrial technical personnel from the Defendant on November 13, 2005, to the effect that the period of the mandatory service of industrial personnel expires as of November 13, 2005.

B. However, on July 13, 2007, the Defendant revoked the disposition of expiration of the above service, and simultaneously revoked the transfer of industrial technical personnel to the Plaintiff. On July 18, 2007, the Defendant notified the Plaintiff of enlistment in active duty service that “The Plaintiff will be enlisted in the Army Training Center located in the Geumsan-si, Silsan-si, Busan Metropolitan City.”

C. Accordingly, the plaintiff filed a lawsuit seeking revocation of the disposition of revocation of the completion of the above service in this court 2007Guhap27424, and at the same time filed an application for suspension of the validity of the above disposition of notification of enlistment in active duty service and filed an application for suspension of the validity of the above disposition of notification of enlistment in active duty service on August 1, 2007, which was decided to suspend the validity of the above disposition of notification of enlistment in active duty service until the Seoul High Court 2007Ra194 on August 21, 2007, Seoul High Court 2007Ra194 on December 15, 2007, which was decided to suspend the validity of the above notification of enlistment in active duty service (hereinafter referred to as the "decision in this case"). The above decision was dismissed as it became final and conclusive by Supreme Court Decision 2007Da123 on November 5, 2007.

D. After that, on November 29, 2007, the defendant again issued a notice of enlistment in active duty service to the plaintiff on December 13, 2007, 2007, stating that "I will enlist in the Army Training Center as the above Army Training Center" (hereinafter referred to as "the notice of this case").

【Uncontentious facts, Gap’s 1, 2, Eul’s 2-1 through 3, and Eul’s 3

each entry, the purport of the whole pleading

2. Determination as to the disposition of the instant notification

A. The plaintiff's assertion

The plaintiff asserts that the disposition of cancellation of the above service completion and the disposition of cancellation of incorporation as industrial technical personnel are all without grounds, or they are illegal based on mistake of facts, and therefore, the defendant's intention of this case based on the above disposition is also illegal and should be revoked.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

ex officio, the term "administrative disposition that is subject to appeal" means an act of an administrative agency that directly changes in the rights and obligations of the people, such as ordering the establishment of rights or the imposition of obligations under Acts and subordinate statutes with respect to a specific matter under public law, which may cause direct change in the rights and obligations of the people. An act that does not cause direct legal change in the legal status of the other party or other related persons, such as inside administrative authority, de facto notification, notification of concept, inquiry, etc., cannot be subject to appeal litigation (see Supreme Court Decision 9Du113, Sept. 8, 200; 9Du113, Sept. 28, 2000; 206Da 2065, Feb. 28, 2008; 206Da328, Feb. 28, 2008, etc.). Under the relevant Acts and subordinate statutes, the director of the regional military manpower office may, in principle, separately enter the active duty service by setting a conscription order for those subject to enlistment on the date.

Therefore, as long as the director of the regional military manpower office notifies the person determined to be enlisted in active service of the date and place of enlistment to be enlisted in active service, the enlistment in active service under the Military Service Act was ordered to serve as active duty servicemen. Even if the director of the regional military manpower office delays the date of enlistment ex officio and notifies the enlistment in active service again, this is merely a notification of postponement of setting the date of enlistment in active service and informing the date of enlistment again, and thus, it cannot be deemed an independent administrative disposition subject to appeal (see Supreme Court Decision 2003Du14550, Oct. 28, 2005). Accordingly, the lawsuit in this case is limited to the subject of disposition without the possibility of disposition, and thus, it

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful, so it is decided as per Disposition by the assent of all participating Justices.

The presiding judge shall transfer the number of judges

Judges Lee Dong-young

Judge Lee Yong-soo

Related Acts and subordinate statutes

former Military Service Act (amended by Act No. 8852 of Feb. 29, 2008)

Article 15 (Determination of Order of Conscription for Active Duty Service)

(1) The director of a regional military manpower office shall assign a person to be enlisted in active service, as a result of the draft physical examination.

The Si means the Si; hereinafter the same shall apply), Gun, and Gun shall determine the order of conscription separately.

(2) The Commissioner of the Military Manpower Administration shall determine the standards for determining the conscription order under paragraph (1) in consideration of qualifications, such as physical grade, academic background and age

of this section.

Article 16 (Enlistment in Active Duty Service)

(1) The director of a regional military manpower office shall, with respect to persons whose order of conscription for active service is decided, cause the draft physical or following year.

In determining the time of enlistment, the balance of qualities shall be balanced between persons to be enlisted for each military (military) or each aptitude (a aptitude).

required to be maintained.

(2) Persons determined by the Presidential Decree, including those whose enlistment in active duty service ceases to exist.

Notwithstanding the provisions of paragraph (1), the director of a regional military manpower office may have the director of a regional military manpower office enlist separately.

(3) A person assigned to be enlisted in active service, whose order of conscription has been determined, has moved his/her residence to another Si/Gun/Gu.

Even in cases of a draft physical examination, the Si/Gun/Gu which is a residence at the time of the draft physical examination shall be enlisted in the military: Provided, That under the provisions of Article 60 (2).

In the case of persons whose enlistment has been postponed, this shall not apply.

Article 61 (Postponement of Date of Enlistment, etc.)

(1) A person who has received or is to receive a draft physical examination, conscription or call notice and on the grounds of disease, mental or physical disability, disaster, etc.

Any person who is difficult to perform the obligation on the date for the performance of the obligation may postpone the date by application.

Provided, That where it is impracticable to submit an application for postponement of the enlistment date, etc. due to disasters or other causes prescribed by Presidential Decree, local soldiers;

The head of the office may postpone the date ex officio.

(2) For persons for whom the date for fulfillment of the duty has been postponed under paragraph (1), a notice shall be served again with a new date fixed.

person who has received or is to receive a conscription or call notice shall have any illness or mental or physical disability;

Any persons who are deemed incapable of military service, shall be permitted to change their assignment to military service after having their military service undergo a physical examination.

(c) Newly Inserted by Act No. 580, Feb. 5, 1999>

Enforcement Decree of the former Military Service Act (amended by Presidential Decree No. 20675 of Feb. 29, 2008)

Article 20 (Persons Subject to Separate Enlistment in Active Service)

Persons who may be separately enlisted in the army without resorting to the order of conscription in the active service under Article 16 (2) of the Act shall be as follows:

1. Persons who desire to enlist in the army after undergoing the draft physical;

2. A decedent who is to enlist again;

3. Student officer candidates or medical, judicial, religious, and veterinary officer candidates who have been removed from the military register;

4. Persons whose grounds for the postponement of the draft physical or enlistment (including persons whose date has been postponed) have ceased to exist;

5. Persons who have returned home and are to enlist in the army;

6. Persons who have evaded enlistment in active duty service, against whom penal punishment or the statute of limitations for prosecution has expired;

7. The call-up of a public interest service personnel is revoked or the expert research personnel, industrial technical personnel, public health doctors, international cooperation in exclusive charge of draft physical;

Persons to be enlisted after the transfer of doctors, public-service advocates or public-service veterinarians is cancelled.

8. Other persons deemed necessary by the Administrator of the Military Manpower Administration.

Article 129 (Postponement of Date of Enlistment, etc.)

(1) Persons whose date of execution of the military service may be postponed under Article 61 (1) of the Act shall be as listed in the following subparagraphs:

1. A person whose performance of military service is difficult due to any disease or mental or physical disorder;

2. A person who lives in the same household among his/her lineal ascendant or descendant, spouse, sibling, or family member is in critical condition or dies;

A person who is not the principal but is unable to take care of domestic affairs, such as nursing and funeral.

3. A person who is essential in rebuilding in the person in question due to a natural disaster or other calamities;

4. A person whose whereabouts are unknown;

5. Persons who are waiting for the results of the examination or examination in response to the solicitation of each military unit: Provided, That the date of enlistment in active duty service shall be determined.

Persons who have become eligible shall be limited to those who have applied for the recruitment of each armed force 30 days before the date of enlistment.

6. Persons who have obtained permission for overseas travel, permission for the extension of the period of overseas travel or have not been 25 years old, waiting for departure;

person who has been

7. Persons who intend to apply for the entrance examination at each school.

8. Other persons who have difficulty in discharging their military service due to unavoidable reasons.

(2) Persons falling under any subparagraph of paragraph (1) shall be subject to the total of 2 years (under the provisions of Article 124 (1) 4).

In accordance with the proviso of Article 147 (4), persons who have been granted a postponement of enlistment by the age of 28 and overseas travel by the age of 28.

Persons who have obtained funeral permission shall be granted one year in total, and shall be granted by June 30 of the year in which they turn 29 years of age pursuant to Article 147 (5).

In the case of a person who has received the A, the date of fulfillment of the obligation may be postponed within the limit of 6 months: Provided, That subparagraph 1 shall not apply.

In the case of a person who falls under paragraph (4) 4, the date of fulfillment of the obligation may be postponed until the ground therefor is resolved.

(3) Persons falling under any subparagraph of paragraph (1) who intend to have the date of draft physical or enlistment, etc. postponed shall undergo the postponement.

A written application for postponement (including any written application in electronic form) shall be submitted to the director of the regional military manpower office not later than five days before the date.

Provided, That there is time to submit a written application for postponement (including any written application in electronic form) due to a sudden cause;

When there is no report by telegraph, telephone, etc., the director of the regional military manpower office shall file an application for postponement within three days.

shall submit an application (including an application).

(4) The director of a regional military manpower office shall apply for a postponement of the enlistment date, etc. under paragraph (3) (including any application in electronic form).

If such extension is made, it shall be determined.

(5) The director of a regional military manpower office shall, for reasons under paragraph (1) 1, postpone the discharge date of the military service and

Persons who are incapable of military service due to any disease or mental or physical disorder pursuant to the provisions of paragraphs (1) and (3).

Persons determined may be changed in military service after a physical examination at the draft physical center or at a military hospital.

(c) In such cases, the body of a person with any apparent disability that falls under any subparagraph of Article 134 (1);

A military service disposition may be changed without an inspection, and a spirit from among persons whose date of public duty personnel call has been postponed;

Persons hospitalized or detained in a hospital or sanatorium for not less than one year due to a disease shall undergo a physical examination.

may be transferred to the second citizen service without being assigned to such service.

(6) Matters necessary for the period of postponement by reason and restrictions on the frequency of postponement under paragraph (2) shall be determined by the Commissioner of the Military Manpower Administration

The end of this chapter.