Whether the disposition agency may revoke the disposition by a separate administrative act even if there was no separate defect at the time of the disposition and there is no separate legal ground for revocation after the disposition.

Whether Article 96 (7) of the Enforcement Decree of the former Military Service Act does not delegate the parent law or is an invalid provision against it.

(a) A disposition agency which has performed an administrative act may, even if there was no particular defect at the time of the disposition, or there was no separate legal ground to revoke it after the disposition, cancel it by a separate administrative act which would lose its effect where there was no change of circumstances making it unnecessary to continue the original disposition, or where there was a need for the important public interest.

B. It is reasonable to view that Article 96(7) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 14397, Oct. 6, 1994) is an example of the reason for revoking a disposition of exemption from military service, which is naturally recognized under the legal principle of “A” and therefore, it cannot be deemed that there is no delegation of the mother law or that it is an invalid provision contrary to

A. (b) Article 1 of the Administrative Litigation Act / [general administrative disposition] Article 56(1)2 of the former Military Service Act (amended by Act No. 4685 of Dec. 31, 1993) (see current Article 64(1)2), Article 96(7) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 14397 of Oct. 6, 1994) (see current Article 134(8))

A. Supreme Court Decision 88Nu4782 decided Apr. 11, 1989 (Gong1993Sang, 1469) 91Nu3130 decided Jan. 17, 1992 (Gong1992, 920) 94Nu7713 decided Feb. 28, 1995 (Gong195Sang, 1486)

[Defendant-Appellee] Plaintiff 1 and 2 others

Daejeon director general of the District Office

Daejeon High Court Decision 94Gu116 delivered on June 3, 1994

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The defendant's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined that the exemption from military service under Article 56 (1) 2 of the Military Service Act (wholly amended by Act No. 4685, Dec. 31, 1993; hereinafter the same shall apply) was made on July 23, 1992 and the Judicial Research and Training Institute, a domestic educational institution, entered the Republic of Korea on July 14, 1993, and entered the Republic of Korea on July 28, 1993. Accordingly, since the defendant was born within 29 years of age from July 23, 1992, who had been staying in the Republic of Korea, and the defendant did not have been granted exemption from military service under Article 56 (1) 2 of the Enforcement Decree of the Military Service Act for the purpose of acquiring the sovereignty of the United States, and thus, the defendant's exemption from military service under Article 56 (2) of the former Enforcement Decree of the Military Service Act was unlawful on the ground that the defendant's exemption from military service was not made within 29 months after the date.

2. However, although there was no particular defect at the time of the disposition, and even if there was no separate legal ground to cancel it after the disposition, if there was no need to continue the original disposition, or if there was a need for the important public interest, it shall be cancelled by a separate administrative act which would lose its validity (see, e.g., Supreme Court Decision 88Nu4782, Apr. 11, 1989; Supreme Court Decision 91Nu3130, Jan. 17, 1992; Supreme Court Decision 94Nu713, Feb. 28, 195; 94Nu713, Feb. 28, 1995; 96(7) of the Enforcement Decree of the Military Service Act, if a person who was exempted from military service under Article 96(6) of the Enforcement Decree of the Military Service Act returns to a permanent residence, or is employed or staying in Korea for more than one year, it shall not be deemed that there is a provision that the above provision can be cancelled or invalid.

Nevertheless, the court below held that the disposition of this case was unlawful on the ground of its reasoning. The court below erred in the misapprehension of legal principles as to the exemption from military service and the cancellation (cancellation). This error affected the conclusion of the judgment, and there is a reason to point this out.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition with the assent of all Justices

Justices Shin Sung-sung (Presiding Justice)