(영문) 서울행정법원 2008.4.25.선고 2007구합28816 판결

The defendant's revocation of transfer of industrial technical personnel to the plaintiff on July 13, 2007 and the revocation of enlistment in active duty service on July 18, 2007, respectively.

Reasons

1. Details of the disposition;

A. At around 200, the defendant selected A (hereinafter referred to as "A") as a designated entity in which industrial technical personnel will work as a software development and supply business.

B. On June 27, 1998, the Plaintiff was subject to the disposition of enlistment in active duty service from the Defendant on January 31, 2006, and applied for the transfer of industrial technical personnel to the Defendant on January 31, 2006. On February 6, 2006, the Defendant issued a disposition of transfer to industrial technical personnel service by setting the designated entity as “A”, the service department as “online technology development department”, and the service department as “development of game software” (hereinafter “instant transfer disposition”).

C. On July 13, 2007, the Defendant: (a) was transferred to the Plaintiff as an industrial technical personnel for production; (b) was transferred from February 6, 2006 through April 25, 2007 to April 25, 2007 to the Plaintiff; and (c) rendered a disposition to revoke the transfer of industrial personnel for the reason that he did not engage in the field of the designated entity at the time of transfer; (b) was subject to the disposition to revoke the transfer of industrial personnel for the reason that he was subject to the cancellation of the transfer of this case (hereinafter referred to as the “instant disposition”); and (c) was subject to the enlistment in active duty service on the ground that he was subject to the disposition to revoke the transfer of this case on the ground that he was subject to the cancellation of the transfer of this case (hereinafter referred to as the “instant enlistment disposition”); and (d) was subject to each of the instant dispositions including the disposition to revoke the transfer of this case and the enlistment.

【Unstrifed Facts, Gap evidence Nos. 1 and 2, Gap evidence Nos. 9, Eul evidence Nos. 1 and 2, and Eul evidence No. 5

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The disposition of cancellation of the transfer of this case is unlawful for the following reasons, and the enlistment disposition of this case based on the premise that the disposition of cancellation of the transfer of this case is lawful is also illegal. Thus, each disposition of this case should be revoked in entirety.

1) The Plaintiff satisfied the requirements for transfer to industrial technical personnel and was subject to the instant disposition by the Defendant, and did not engage in misconduct in this case. After entering A, the Plaintiff was affiliated with the “00 online web development team” and carried out the tasks of program planning, item development, server management, user demand, user response forecast and analysis, and web page production, etc. This constitutes a game so-called development business. Therefore, the instant disposition of cancellation constitutes a case where there is no reason for the disposition of transfer to industrial technical personnel, and even if there was no judgment of conviction in the court, the Defendant’s act of cancellation on the basis of the investigation results of the prosecutor’s office is contrary to the principle of presumption of innocence.

2) Since the Plaintiff was assigned as a skilled industrial personnel and performed duties in good faith in the designated entity’s relevant field for more than one year, the Defendant, like other skilled industrial personnel, approved the Plaintiff’s transfer to another skilled industrial personnel, thereby allowing the Plaintiff to serve more as skilled industrial personnel during the remaining mandatory service period. However, the instant disposition to cancel the transfer of the industrial personnel, which is the most unfavorable to the Plaintiff solely on the ground that he is an artist, was contrary to the principle of proportionality and the principle of equality, and the principle of self-defense.

3) The instant disposition to cancel the registration of the instant case can be transferred to another designated entity by faithfully performing business in the relevant field of the designated entity for at least one year based on the lawful disposition of incorporation.

Since trust is not only infringing the plaintiff's trust, but also it is against the defendant's failure to take the issue of the plaintiff's work performance in the fact-finding survey, it is against the principle of trust protection.

(b) Relevant statutes;

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

1) From around 1996 to May 200, the Plaintiff was a zero group of “X”, and at the time, the Plaintiff was in charge of the entertainment planning department of A, with the relationship between A and B, the representative director of A.

2) After the dissolution of X, the Plaintiff entered into an exclusive agreement with A around November 2001 on the entire music records and entertainment activities, and A entered into an exclusive agreement with A to establish “C” as an entertainment planning company by separating the entertainment planning department.

3) The Plaintiff, upon the expiration of the above exclusive contract term, entered into a new exclusive contract with A, not C, because the Plaintiff entered into the exclusive contract at around November 2004.

4) The Plaintiff, while being selected as a designated entity A under the Military Service Act, was aware that he could become aware of the fact that he would become aware of the fact that he would become a skilled industrial personnel when he serves as a skilled industrial personnel. After obtaining the qualification of a data processing technician on April 18, 2005, he was assigned to A in 2006 as a skilled industrial personnel. On January 31, 2006, when a person subject to enlistment in active service was assigned to A as a skilled industrial personnel, the Plaintiff applied for the transfer of the skilled industrial personnel to the Defendant and received a disposition of transfer from the Defendant on February 6, 2006.

5) A is a company that mainly develops and supplies the game software. The Plaintiff was enrolled in the multi-university of 00 universities, the multi-media department of the Z University, and the ZZ University performance media department. The Plaintiff did not have any career in performing duties related to information processing or the development of the game software before entering A. The Plaintiff performed the duties of editing character generated from the game mainly after being incorporated into A as industrial technical personnel at a computer screen and by using the Photops program at the Shotop (Photops) shop and delivering it to the web design room.

6) From August 2006, where Company B did not return to the Republic of Korea after leaving the Republic of Korea, Party A was in a situation where it was impossible to develop the game software due to the company’s employee’s retirement from considerable number of occasions, and the company’s business was not performed normally. The Plaintiff and the industrial technical personnel, like the Plaintiff, were in a situation where they were in attendance at work, and the Plaintiff was unable to receive wages at all from November 2006.

7) On April 26, 2007, the Plaintiff was employed at the Seoul Eastern District Prosecutors' Office as industrial technical personnel upon suspicion of violating the Military Service Act, and then placed at the web management team to conduct the web design work from the beginning, and stated to the effect that “The Plaintiff was not engaged in the program development work,” “the web design work”, and “the program development work” was related to the program development work, while receiving the overall education on the service of industrial technical personnel from February 6, 2006 to August 5, 2006, and “the Plaintiff did not perform the actual program development work.”

8) On April 29, 2005, A, the Plaintiff’s former membership of the Plaintiff, prepared a document that “education on the guidelines to cope with when investigating the actual inspection of the personnel engaged in the military service,” and trained industrial technical personnel, such as the movement of the designated seat to the designated seat, the establishment of the designated seat computer, personal affairs, and the accommodation of the staff members, etc., and such education continued thereafter.

9) While the Plaintiff’s public official affiliated with the Defendant conducted a fact-finding survey during the period of service as industrial technical personnel A, the Plaintiff did not point out the problems on the ground that the Plaintiff was not engaged in the designated entity’s corresponding field at the time of transfer in relation to the duties performed

【Unsatched Facts, Gap evidence 3, Gap evidence 9, Gap evidence 12 through 14, Gap evidence 15-1, 2, Eul evidence 5, Eul evidence 12 through 16, Eul evidence 12 through 22, and the purport of the whole arguments and arguments

D. Determination

1) Whether the grounds for disposition of revocation of the incorporation of this case exist actually

A) First, we examine the grounds for the disposition of revocation of the incorporation into the instant case in relation to the non-persons in the relevant field.

B) The purpose of the industrial technical personnel system is to eliminate unreasonable arising from uniform conscription within the extent that does not interfere with the recruitment of required military personnel and to enhance national competitiveness by efficiently facilitating military manpower and by contributing to the fostering and development of the overall national industry by inserting able human resources needed for a specific industry. In addition, in addition to the purport of the aforementioned system, industrial technical personnel are obliged to perform their duty of military service based on their own will.

대체복무형태이고 , 특히 현역병 입영대상자의 경우 해당분야의 국가기술자격증 소지자 로 그 대상을 엄격히 제한하고 있는 점 , 병역법이 산업기능요원에 대하여 의무종사기 간 중 성실히 종사하겠다는 서약서를 제출하도록 하고 있고 ( 병역법 제39조 제4항 ) , 편 입당시 지정업체의 해당분야에만 종사하여야 하며 다른 업무를 겸직하거나 다른 장소 로 이동하는 것을 엄격히 금지하고 있으며 , 산업기능요원이 편입당시 지정업체의 해당 분야에 종사하지 아니한 때에는 지정업체의 장으로 하여금 14일 이내에 관할지방병무 청장에게 통보하도록 하고 있는 점 ( 같은 법 제40조 ) , 산업기능요원 역시 3개월 이상 임 금이 체불되거나 조업중단 등의 사유로 해당분야에 종사할 수 없게 된 때에 직접 그 사유가 발생한 날로부터 30일 이내에 관할지방병무청장에게 신고하여야 하고 ( 병역법 시행령 제83조 ) , 이 경우 관할지방병무청장의 승인을 얻어 지정업체를 옮겨 다시 지정 업무에 종사하도록 하고 있는 점 등을 종합하여 보면 , 지정업체의 해당분야에 종사한 다고 하는 것은 단지 지정업체에 출근하는 것으로 족한 것이 아니라 해당분야와 관련 하여 상당한 정도의 실질적인 업무의 수행과 근로의 제공이 있어야 하는 것을 의미한 다고 할 것이다 .

C) However, in full view of the following circumstances, which can be recognized under subparagraph 4-1 and subparagraph 2 of the above facts, and Article 2-3 of the National Technical Qualifications Act, Article 4 and attached Table 5 of the Enforcement Rule of the same Act, namely, the Plaintiff’s character of the game on the computer screen which the Plaintiff mainly performed after being incorporated into the industrial technical personnel A, and the duty of transmitting the game to the web design room after editing the program using the one, is related to the web design, and it is difficult to see the Plaintiff’s "information processing" or “development of the game software, which is the relevant field of business at the time of designation as the industrial technical personnel at the time of the Plaintiff’s transfer to the designated industrial personnel, as it is difficult to see as the same field of business as the “information processing” or “development of the game software software, which is the relevant field of business at the time of designation,” the Plaintiff’s assertion that the designated entity was not engaged in the field of business at the time from February 6, 2006 to April 25, 2007.

D) Therefore, it is reasonable that the disposition of revocation of the incorporation of this case exists in fact without examining the existence of other grounds for disposition (Cheating related to incorporation). This part of the other plaintiff's assertion is without merit.

2) Whether the disposition of revocation of inclusion in the instant case goes against the presumption of innocence

The presumption of innocence is merely presumed to be innocent in criminal proceedings until the conviction becomes final and conclusive. Thus, in administrative procedures not criminal proceedings, it cannot be deemed that the defendant revoked the transfer of the case to the plaintiff on the basis of the grounds for disposition revealed through the prosecutor's investigation conducted by the prosecutor, and this goes against the presumption of innocence. Therefore, the plaintiff's assertion on this part is without merit.

3) Whether the disposition of revocation of inclusion in the instant case violates the principle of proportionality and equality, and the principle of self-detention

A) Article 41(1) of the Military Service Act provides that “If a person transferred to industrial technical personnel service is not engaged in a field concerned with the designated enterprise at the time of transfer, the transfer must be cancelled.” However, only if there are certain reasons prescribed in the proviso, the cancellation of the transfer should be avoided, or the transfer should be canceled and the period of mandatory service should be extended to the extent that the person did not engage in the field concerned without cancelling the transfer.

B) However, as seen earlier, the Plaintiff did not engage in the designated entity’s field at the time of transfer to industrial technical personnel service. Therefore, the Defendant’s revocation of transfer to the Plaintiff that did not exist in certain grounds as stipulated in the proviso of Article 41(1) of the Military Service Act is a lawful disposition that does not violate the principle of proportionality, the principle of equality, and the principle of self-defense.

C) Therefore, the Plaintiff’s assertion on this part is without merit, which is premised on the fact that the Plaintiff was assigned to serve as industrial technical personnel in good faith at the corresponding portion of the designated entity.

4) Whether the disposition of revocation of inclusion in the instant case violates the principle of trust protection

A) In general, in administrative legal relations, in order to apply the principle of trust and good faith to the acts of an administrative agency, first, the administrative agency should name the official opinion that is the object of trust to an individual, second, the administrative agency's trust in the name of the opinion that is justifiable and does not cause any cause attributable to the individual. Third, the individual should have trusted the opinion and conducted any act corresponding thereto. Fourth, the administrative agency's trust in the name of the opinion that is contrary to the opinion's name should result in infringing on the interests of the individual who trusted the opinion's name. Lastly, the administrative agency should not take an administrative disposition in accordance with the above opinion's name that is likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 201Du1512, Nov. 8, 2002, etc.).

B) However, as seen earlier, it is difficult to view that the Defendant ordered the Plaintiff a public opinion that is the subject of trust in relation to the service of industrial technical personnel solely on the ground that the Defendant’s public official affiliated with the Defendant did not point out any particular issues related to the Plaintiff’s work performed by the Plaintiff at the time of the fact-finding survey, and even if otherwise, it cannot be deemed that the Plaintiff, who did not engage in the corresponding portion of the designated entity at the time of incorporation, was justifiable and does not have any reason attributable to the Plaintiff who did not engage in the pertinent portion of the designated entity.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

5) Sub-decisions

The cancellation disposition of this case cannot be deemed to be unlawful as alleged by the plaintiff, and the enlistment disposition of this case is also lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

Judges Lee Dong-gu

Judge Lee Jin-soo

Level of judge

Site of separate sheet

Related Acts and subordinate statutes

[Military Service Act]

Article 36 (Selection, etc. of Designated Enterprises)

(1) The Commissioner of the Military Manpower Administration shall prohibit technical research personnel or industrial technical personnel from among research institutions, key industrial enterprises and defense enterprises.

A refining company (excluding agricultural corporations and after-sales service corporations) shall be selected in accordance with the standards prescribed by the Presidential Decree.

(5) The designated entity or the head of the competent regional office of manpower administration (the head of the competent regional office of manpower administration or the next-generation agricultural business operator provided for in Article 12

The successor to a fisherman under Article 4 of the Act on Special Measures for Development of Agricultural and Fishing Villages (hereinafter referred to as the " successor to a fisherman and a fisherman").

The director of a regional military manpower office having jurisdiction over the administrative district in which the workplace is located; hereafter the same shall apply in this Section) shall be as follows:

Persons who fall under any of the following subparagraphs and who may complete their mandatory service period under Article 39 by the age of 35:

a person who falls under subparagraph 3 shall be transferred to expert research personnel (excluding persons falling under subparagraph 3) or industrial technical personnel.

A person to be enlisted in active service may be transferred to the recruit service.

1. A person to be enlisted in active service;

Article 38 (Persons Subject to Transfer to Industrial Technical Personnel Service)

A person who falls under any of the following subparagraphs may be transferred to industrial technical personnel service under the provisions of Article 36 at his request. In such cases, a person who falls under subparagraphs 1 and 2 (excluding persons in supplemental service to be called to public duty personnel service) and a person who falls under subparagraph 4 (excluding next-generation farmers and fishermen) shall have technical qualifications or licenses prescribed by Presidential Decree:

1. A person engaged in a key industrial enterprise in industry, mining, energy industry, construction, fishery, or marine transportation industry selected as a designated entity;

persons (in the case of fisheries or marine transportation, persons who are or will be engaged on board a ship)

Only persons)

Article 39 (Service of Expert Research Personnel and Industrial Technical Personnel)

(3) The technical research personnel or skilled industrial personnel shall serve in the field concerned with the designated entity at the time of their transfer: Provided, That designated business

Dispatch and teaching for the performance of related affairs, where prescribed by Presidential Decree, such as the closure of the body, etc., and the change of the designated entity engaged therein;

When the designated enterprise is engaged in the field concerned at the time of its incorporation into the ground of land training, instruction of learning and technology, or other unavoidable reasons.

If approval or permission is obtained from the director of the competent regional military manpower office as prescribed by the Presidential Decree, such approval or permission.

not to do so.

(4) Those to be transferred to expert research personnel service and industrial technical personnel service shall vow that they will faithfully engage during their mandatory service period.

in writing shall be submitted.

(5) Service halls such as the period of mandatory service, calculation of the period of mandatory service, pledge, etc. in which expert research personnel or skilled industrial personnel are to serve

and necessary matters shall be prescribed by Presidential Decree.

Article 40 (Notification of Personal Changes of Technical Research Personnel and Skilled Industrial Personnel)

The head of the designated entity (including a person in charge of personnel management for the head of the designated entity), the head of the Agricultural Technology Center (where no agricultural technology center is established, the head of the competent Si/Gun), or the head of the office of maritime affairs and fisheries (limited to the fluorial rain of succeeding farmers and fishermen) shall notify the head of the competent regional military manpower office within 14 days when technical research personnel or industrial technical personnel or the head of the competent regional military affairs and fisheries office fall under any of the following subparagraphs: Provided, That the head of an enterprise that employs skilled industrial personnel in the field of agriculture and fisheries, the head of the agricultural technology center, or the head of the competent office of maritime affairs and fisheries shall notify the head of the competent regional

2. When the designated enterprise has not engaged in the relevant field at the time of its incorporation;

Article 41 (Cancellation of Transfer of Technical Research Personnel and Skilled Industrial Personnel and Imposition of Obligations)

(1) The director of the competent regional military manpower office shall assign technical research personnel or skilled industrial personnel to any of the following persons:

When the transfer is made, the transfer shall be cancelled: Provided, That a person dismissed by a designated entity that engages in business shall be the standard of work.

A request for remedy to the Labor Relations Commission pursuant to the provisions of Article 28 (1) of the Act, or disputing the validity of dismissal to the court.

When a lawsuit is pending by filing a lawsuit, the incorporation shall be made until the result thereof is confirmed under the conditions as prescribed by the Presidential Decree.

section 40(2) of this title may be reserved for revocation, and the person who falls under section 40(2) of this title shall

If the corporation does not cancel its incorporation as prescribed by the Presidential Decree, and does not engage in the applicable field without cancellation thereof.

The period of mandatory service may be extended by the period of time.

1-2. When he falls under any of subparagraphs 1, 2, 2-2, and 3 through 5 of Article 40;

(3) Any person whose transfer to the technical research or skilled industrial personnel is cancelled under paragraph (1), shall be held before the transfer.

Any return to active duty service shall be enlisted in active duty service, or called as public duty personnel service.

[Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 20286 of September 27, 2007)]

Article 83 (Field, etc. in which Technical Research Personnel and Skilled Industrial Personnel are to Work)

(1) The technical research personnel and the industrial technical personnel as prescribed in Article 39 of the Act shall serve in the following fields:

No person may concurrently hold another office.

2. Industrial technical personnel engaged in key industrial enterprises or the field of defense industry in the fields of industry, mining, and energy;

(a) A person to be enlisted in active service: At the time of enlistment as industrial technical personnel, the same job field as prescribed by the National Technical Qualifications Act;

(2) Technical research personnel or skilled industrial personnel shall be paid for not less than three months due to their managerial deterioration, etc. during the period of mandatory service.

No operation shall be suspended due to delayed payment or dishonor, and it shall not be engaged in the relevant field as prescribed in paragraph (1).

In case of B, a report shall be filed with the director of the competent regional military manpower office within 30 days from the date of occurrence.

[National Technical Qualifications Act]

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "national technical qualification" means skills, skills, and librarians related to industries, among national qualifications under the Framework Act on Qualifications;

This Act as a qualification in the field of s shall mean those prescribed by this Act.

3. “National technical qualification field” means a field of national technical qualification according to the contents of the duties required in the industrial field;

the term “classified as determined by the Ordinance of the Ministry of Labor.”

[Enforcement Rule of the National Technical Qualifications Act (amended by Ordinance of the Ministry of Labor No. 279 of July 16, 2007)]

Article 4 (Fields and Categories of National Technical Qualification)

The fields of work under subparagraph 3 of Article 2 of the National Technical Qualifications Act and the fields of national technical qualification under Article 9 (2) of the Act shall be as listed in attached Table 5.

[Attachment 5] Categories of National Technical Qualification by Field of Duties (Related to Article 4)

1. Technical and functional fields;

A person shall be appointed.

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