(영문) 전주지방법원 2018.6.20.선고 2018구합224 판결

On April 3, 1989, the Plaintiff was born between parents with the nationality of the Republic of Korea and was assigned to military service as a second-class soldier in the draft physical. Since then, pursuant to Article 60(2)1 of the Military Service Act, the Plaintiff was on the ground that he was enrolled in a foreign school (Hungary ○○ University’s medical college) pursuant to Article 60(2)1 of the same Act, and was on December 31, 2017, who was 28 years of age.

(b) Permission for overseas travel and extension of overseas travel for the plaintiff;

1) The Plaintiff obtained permission for overseas travel from the Defendant from August 10, 2016 to December 1, 2016 on the ground that “short-term overseas travel” under Article 70(1)1 of the Military Service Act was “the short-term overseas travel” and left the Republic of Korea on August 24, 2016.

2) On November 16, 2016, the Plaintiff filed an application for extension of the period of overseas travel with the Defendant through the Embassy of the Republic of Korea, stationed in Hungary, for extension of the period of overseas travel on the ground of “the study abroad” with the Defendant, and the Defendant filed an application for military service with the Plaintiff on December 4, 2016.

Pursuant to Article 70(3) of the Act, Article 147(2) of the Enforcement Decree of the Military Service Act, and Article 124(1)3 of the Enforcement Decree of the Military Service Act, the period between the permitted periods of overseas travel was extended from December 2, 2016 to December 31, 2017.

C. Extension of the amount of overseas travel for the plaintiff

1) On December 11, 2017, the Plaintiff already paid a two-year registration fee to the Defendant through the Embassy of the Republic of Korea residing in Hungary, and sought extension until he/she takes an autopsy for the basic subject, "on the grounds of "I", "from December 31, 2017 to December 31, 2018, the Plaintiff applied for an extension of the period of overseas travel."

2) On December 12, 2017, the Defendant permitted the Plaintiff to extend the period of overseas travel by the age of 27 years in accordance with Article 70(4) of the Military Service Act, Article 147 of the Enforcement Decree of the Military Service Act, Articles 13(4) and 5(1) [Attached Table 1] of the former Regulations on the Operation of Overseas Travel (No. 1426 of the Law Office Directive; hereinafter “the Rules on Overseas Travel”) under Article 13(2) and 5(1) of the former Regulations on the Operation of Overseas Travel (hereinafter “the Rules on Overseas Travel”) for the six-year course (Korean university). The Defendant was allowed to extend the period of overseas travel by the age of 27 years when he attends a foreign school, and the Plaintiff was allowed to extend the period of overseas travel by the age of 28 years.

3) On December 29, 2017, the Plaintiff filed an application with the Defendant for an extension of the period of overseas travel (hereinafter “instant application for annual travel”). The Plaintiff’s parent submitted the application to the Defendant, stating the following reasons.

○ The Plaintiff is currently attending a basic course, such as tidal fatherology, physiologicalology, and biochemical medicine, while attending a university of Hungary ○○○○○ University at its second grade and in the second grade one semester. Due to the characteristics of the course of a foreign school, the first semester in September and the second grade in July of the following year ends. In particular, when the Plaintiff entered a school during a semester in order to complete an autopsy course within July 2018, he/she must complete the basic course without completing the basic course, and there is a high time and economic loss by paying tuition fees and accommodation expenses up to the second grade of the second grade.

The plaintiff complained of severe mental stress due to the characteristics of the medical college's continued test and its study, and the expiration of the permission period of overseas travel, etc. In this case, when the physical function of the human body function has been deteriorated and severe longer, there have been a chromatic symptoms, which are existing diseases at the time of growth.

4) On January 12, 2018, the Defendant issued an aircraft on January 12, 2018 due to the pertinent disease in the case of “a disease against the Plaintiff.”

The permission is granted only for a disease that is impossible to be treated in the Republic of Korea, and the reason for claiming high-priced is that it does not constitute (such as disease) for any other unavoidable reason. The application for permission for the extension of this case was rejected on the ground that it is reasonable to notify the plaintiff (hereinafter referred to as the "disposition of this case").

[Ground of recognition] Unsatisfy, Gap evidence 1, Gap evidence 2-1, Eul evidence 1-7

re-, the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is illegal that deviates from and abused discretion by violating the principle of proportionality and the principle of equality.

① Violation of the principle of proportionality

As revealed in the grounds for the application for the extension of the instant period, the Plaintiff would extend the stay abroad only for six months for study, and the Military Service Act stipulates the age of exemption from the duty of military service as 38 years. Thus, even if the Plaintiff returned to the age of 28 years after August 2018, which is six months after the expiration date of the permission for the extension of the period of overseas travel, it is difficult to maintain the military forces of the Republic of Korea, or it is not anticipated that the shortage of the military manpower, or a failure of military power has not been impeded in performing the duty of military service. On the other hand, if the Plaintiff returned to the Republic of Korea after immediately returning to the Republic of Korea and completing the duty of military service, the basic subject should be renewed, so the period of overseas stay would be more than the public interest to achieve the disposition of the instant case with a growing time and economic disadvantage for more than one year.

(2) Violation of equality principles

If a person is physically healthy male in the Republic of Korea, he must enter the military equally. However, pursuant to Article 33-7 of the Military Service Act and Article 68-11 of the Enforcement Decree of the Military Service Act, a representative of the State gives the benefit of extending military service special cases and military interventions to the national team. On the other hand, the plaintiff's refusal is against the principle of equality as it discriminates against a person without any reasonable reason even though he expresses his intention that he will complete a semester only for six months.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

(i)the nature of extension of overseas travel;

Article 70(3) of the Military Service Act provides that “Where a person who has obtained permission for overseas travel makes it difficult for him to return to the Republic of Korea, he/she shall obtain permission for extension of the period of overseas travel from the Commissioner of the Military Manpower Administration by no later than 15 days before the expiration of the period of overseas travel.” Article 70(4) provides that “The scope of permission for extension of overseas travel under paragraph (3) and the procedure for extension of overseas travel shall be determined by Presidential Decree.” Accordingly, the main sentence of Article 147(1) of the Enforcement Decree of the Military Service Act provides that “Any person who intends to obtain permission for extension of overseas travel period under Article 70(3) of the Military Service Act shall submit documents proving the purpose of stay and an application for extension of overseas travel period to the Commissioner of the Military Manpower Administration.” The main sentence of paragraph (2) provides that “the Commissioner of the Military Manpower Administration may grant permission to the extent that it does not interfere with the imposition of military service, considering the purpose of overseas

Comprehensively taking account of the above-mentioned statutes, the Commissioner of the Military Manpower Administration may grant permission for extension of overseas travel of a person staying abroad with permission for overseas travel, to the extent that it does not interfere with the imposition of a soldier’s duty, taking into account the purpose of staying abroad (Article 146(1) of the Enforcement Decree of the Military Service Act provides that the scope of permission shall be limited to the case where a person grants permission for overseas travel pursuant to Article 70(1) or (3) of the Military Service Act. However, where an application for permission for overseas travel pursuant to Article 70(1) of the Military Service Act is filed, the Commissioner of the Military Manpower Administration may grant permission for overseas travel pursuant to Article 146(1) of the Enforcement Decree of the Military Service Act. Where the Commissioner of the Military Manpower Administration grants permission for extension of overseas travel pursuant to Article 70(3) of the Military Service Act, the Commissioner of the Military Manpower Administration shall decide whether to impose a duty of military service in consideration of the overall circumstances such as the purpose of staying overseas, and it belongs to administrative agency’s discretion.

In addition, in the case of judicial review of discretionary acts, the court shall, without drawing a reader’s conclusion, examine only whether the act in question is a deviation or abuse of discretionary power without drawing a reader’s conclusion. The examination of whether such a deviation or abuse of discretionary power is subject to the determination of mistake of facts, proportionality, and equality. Meanwhile, regarding such deviation or abuse of discretionary power, the person disputing the validity of the administrative act bears the burden of assertion and burden of proof (see, e.g., Supreme Court Decision 2017Du48956, Oct. 12, 2017).

2) Whether the discretionary authority is deviates or abused or not

Taking into account the following circumstances revealed by the purport of the entire evidence and pleadings as seen earlier, the disposition of this case may be followed even if the circumstances alleged by the Plaintiff were to be considered.

Thus, the public interest to be achieved by the Defendant cannot be deemed to be less than the disadvantage that the Plaintiff suffered due to the instant disposition, and it is difficult to conclude that the instant disposition is contrary to the principle of equality. Therefore, the Plaintiff’s assertion that the instant disposition was unlawful by deviating from and abusing discretion is without merit.

(1) Article 13 (4) and Article 5 (1) [Attachment 1] of the Enforcement Decree of the Military Service Act provides for the extension of the period of overseas travel under Article 147 (2) of the Enforcement Decree of the same Act, "a person who is recognized by the director of the regional military manpower office to not interfere with the imposition of the duty of military service for the reason other than those provided for in subparagraphs 11 through 10, for the extension of the period of overseas travel under Article 13 (1) and Article 5 (1) [Attachment 1] shall be permitted to extend the period of overseas travel within the scope of one year.

The above provision of overseas travel is an internal rule for administrative affairs, namely, a discretionary rule, established based on the exercise of discretion, in light of the form and content of the provision, and the standard necessary for granting permission for extension of overseas travel under Article 147(2) of the Enforcement Decree of the Military Service Act, belongs to the discretion of an administrative agency. Thus, insofar as it is not deemed that the standard is objectively unreasonable or unreasonable, and it is not recognized that it abused discretionary power, the administrative agency’s intent should be respected as much as possible (see, e.g., Supreme Court Decision 2011Du28783, Nov. 14, 2013).

'The provisions on overseas travel of this case' shall be limited to those who are inevitably difficult to return without delay due to reasons other than those stipulated in subparagraphs 1 through 10 of the above provision [Attachment 1]. Among the reasons asserted by the plaintiff, the reason why the plaintiff has already paid tuition fees and accommodation expenses is determined by the plaintiff's decision to pay the expenses in advance even though he knows that the permission for overseas travel expires. Since mental stress and tent are not impossible to board aircraft or impossible to treat in the Republic of Korea, it is difficult to view that the defendant's decision does not constitute an inevitable reason to define the foreign travel rules of this case.

② On September 12, 2016, the Plaintiff entered a foreign school, and was postponed by the time of enlistment by the time of 28 on the ground that he was enrolled in a foreign school, and even if the Plaintiff did not return to the Republic of Korea, the Plaintiff would graduate in September 2023. The grounds alleged by the Plaintiff during the application for permission for the extension of this case constitute an application for extension of overseas travel on the ground of study in fact, and under the proviso to Article 147(2) of the Enforcement Decree of the Military Service Act, the Commissioner of the Military Manpower Administration only permits the extension of overseas travel by the time of 280,000 to a person who is difficult to graduate by the time of 27 years of age.

③ 병역법 제33조의7 , 병역법 시행령 제68조의11 제1항 제4호 , 제5호에 의하 면 , ' 올림픽 대회에서 3위 이상으로 입상한 사람 ' , ' 아시아경기대회에서 1위로 입상한 사람 ' 은 보충역으로 편입되어 ( 병역법 제5조 제1항 제3호 나목 ) 기초 군사훈련을 받고 특기활용 봉사활동 등 일정한 업무만을 담당하고 현역으로 복무하지 않는다 . 그러나 예술 · 체육요원으로의 편입은 역종 및 복무형태에 관한 것으로 국외여행기간 연장허가 와는 그 제도의 취지 및 내용 등이 다르고 , 병무청이 운동선수에게 대회 참가 기회를 부여하기 위하여 입영을 연기하여 주는 것 역시 국외여행기간 연장허가와는 그 제도의 취지 및 내용 등이 다를 뿐만 아니라 원고를 비롯한 누구라도 위 조항이 정한 요건을 충족하는 경우 보충역으로 편입이 가능하다 .

In addition to the Military Service Act, in order to achieve the public interest purpose, the Military Service Act provides a different form of service as supplementary service by taking into account the special skills of the persons liable for military service, such as public health doctors, doctors exclusively in charge of the draft physical examination, and thus, if a doctor is qualified, it may be transferred to the military register of students after completing a medical officer’s death pursuant to Article 58(1)1 of the Military Service Act. Thus, the Plaintiff may be transferred to a college until the age of 28, and if a doctor is qualified, the Plaintiff may be transferred to the military register of candidates for military service, and thus, it cannot be said that the Constitution

(4) The public interest in order to achieve the disposition in this case shall be balanced in military service and military service resources.

The public interest is the proper maintenance and management of military service. If the application for permission for the extension of this case is granted, not only damages the equity of the military service but also adversely affect the proper maintenance and management of military service resources by lowering the military morale, it cannot be deemed that there is no obstacle to imposing military service duty.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Jong-il

Judges Kim Jin-forest

Judges Park Gyeong-ok

Site of separate sheet

Relevant statutes

▣ 병역법

Article 2 (Definitions, etc.)

(2) Where this Act prescribes the ages to discharge military service, the term "from 00 years of age" used in this Act means the year in which he attains that age.

The term "to 00 years of age" means "to 31 December of the year in which he reaches that age", and the term "to 00 years of age" means "to 31 December of the year in which he

Article 3 (Military Service)

(1) Every male citizen of the Republic of Korea shall faithfully perform military service, as prescribed by the Constitution and this Act.

women may only serve in active duty and reserve service upon application. Women may serve only in reserve service.

Article 5 (Categories of Military Service)

(1) Military service shall be classified as follows:

3. Supplemental service: Any of the following persons:

(b) a person who served or has completed his/her service as a person falling under any of the following:

(i)social work personnel;

2) Deleted.

(iii) art and sports personnel;

4) Public health doctors;

5) A physician exclusively in charge of the draft physical examination;

6) Deleted.

(vii)public-service advocates;

8) Public quarantine veterinarian

9) Technical research personnel

10) Industrial technical personnel

Article 33-7 (Assignment of Arts and Sports Personnel)

(1) The Commissioner of the Military Manpower Administration shall arts or sports prescribed by Presidential Decree among the following persons:

Persons with special skills in the field and recommended by the Minister of Culture, Sports and Tourism shall be artists and sports personnel.

Any person who falls under subparagraphs 1 through 3 in such cases shall be transferred to supplemental service.

1. Persons to be enlisted for active duty service;

2. Persons who are in active duty service (including persons who are in active duty service pursuant to Articles 21 and 25).

3. Persons who are in onboard ship reserve service;

4. Supplementary service to be called for social work personnel;

5. Service in supplemental service (social work personnel, public health doctors, doctors exclusively in charge of draft physical examination, public-service advocates, or public rooms);

A person serving as a veterinarian, technical research personnel or skilled industrial personnel)

Article 58 (Enlistment into Military Register of Medical, Judicial, Religious, or Medical Officers, etc.)

(1) Persons to be enlisted for active duty service and falling under any of the following subparagraphs, upon their request, shall perform duties and legal affairs:

· Military chaplains or military chaplains may be enrolled on the military register of active duty officers. In such cases, military chaplains under subparagraph 3;

the criteria and procedures for the selection of religion subject to enrollment in the military, the criteria and procedures for the selection of active duty officers in the military field.

Matters required shall be prescribed by Presidential Decree.

1. A person who is qualified as a doctor, dentist, or oriental medical doctor;

Article 60 (Postponement of Draft Physical Examination and Enlistment, etc.)

(2) The director of a regional military manpower office shall undergo a draft physical examination or follow-up draft physical examination and:

Persons falling under any subparagraph of paragraph (1) 1 through 3 shall be conscripted for persons

(b) The convening of a meeting may be postponed.

1. A student who attends a high school or higher;

2. A person who is taking a prescribed course at a training institution;

3. Outstanding athletes to enhance national prestige.

Article 70 (Permission for Overseas Travel and Revocation thereof)

(1) The Commissioner of the Military Manpower Administration who intends to travel abroad by any of the following persons liable for military service:

shall be subject to permission.

1. Persons who are not drafted for the preliminary military service or supplemental service at least 25 years old;

2. Persons who are in onboard ship reserve service or supplemental service;

(3) Where a person who has obtained permission to travel abroad is unable to return to the Republic of Korea, 15 days prior to the expiration of the permission period.

not later than January 15 of the year when he turns 25 years of age, for those who left the Republic of Korea before he turns 25 years of age, the period of the Commissioner of the Military Manpower Administration

The head of a tax office shall obtain permission or permission for overseas travel.

(4) The scope of and procedures for permission for overseas travel or permission to extend the period of overseas travel under paragraphs (1) and (3) shall be substituted.

Colonel shall be prescribed by Ordinance.

Article 94 (Violation of Obligation to Obtain Permission for Overseas Travel)

(1) Permission under Article 70 (1) or (3) shall be obtained for the purpose of evading military service or having military service reduced or exempted.

persons who have left Korea or are staying in a foreign country without departure (Article 83 (2) 10)

Persons who fail to return to Korea in violation of an order) shall be punished by imprisonment with prison labor for not less than one year nor more than five years.

(c)

(2) Any person who departs from the Republic of Korea or stays abroad without obtaining permission under Article 70 (1) or (3).

person or a person who fails to return to Korea within the permitted period without justifiable grounds (Article 83(2)10)

(including persons who fail to return to Korea in violation of an order to return to Korea) shall be punished by imprisonment for not more than three years.

of this section.

▣ 병역법 시행령

Article 68-11 (Recommendation, etc. of Arts and Sports Personnel)

(1) "Persons with specialty in the fields of arts or sports prescribed by Presidential Decree" in the former part of Article 33-7 (1) of the Act.

“A person” means any of the following persons:

4. A person who won a third or a higher prize in the Olympic Games (for group competition, limited to those who actually participated in the competition);

applicable)

5. A person who won a first prize in the Asian Games (for group competition, limited to those who actually participated in the competition);

applicable)

Article 124 (Age Limits by School, etc.)

(1) Persons falling under Article 60 (2) 1 or 2 of the Act shall be conscripted or drafted to the following ages:

Convocation (hereinafter referred to as Articles 124-2, 124-3, 125 through 127, 127-2, and 128;

The enlistment, etc. may be postponed in Articles 128-2 and 129.

1. 28 years of age for high schools;

2. Two of junior colleges and major colleges under Article 31 (4) of the Lifelong Education Act (hereinafter referred to as "major colleges");

In case of a senior course, the age limit is 22, in case of a senior course, the age limit is 23, and in case of a senior degree course, the age limit is 24.

3.For a four-year course at a university, the age limit is 24, for a five-year course at a university, the age limit is 25, and a six-year course at a university, the age limit is 26 (for a medical school, dental school, and dental school;

The age of 27 for medical colleges, veterinary colleges, or pharmaceutical colleges)

4. For master's degree courses at a graduate school, the age of 26 for a two-year course, and for a course exceeding two years, the age of 27 for a two-year course (general graduate school);

(28 years old for the graduate school of medical department, dental department, department of oriental medicine, department of veterinary science, pharmaceutical department, and department of dental science);

For a doctorate course, 28 years of age;

5. 26 years of age in case of a training institution; and

Article 146 (Scope of Permission for and Period of Overseas Travel)

(1) Permission for overseas travel provided for in Article 70 (1) or (3) of the Act shall fall under any of the following subparagraphs:

only if any.

1. International conference and competition (including field training);

2. Training, field study or cultural exchange;

3. Opening markets for export or contracting for import and export;

4. Crews of intercontinental ship (students attending a maritime or fisheries high school or higher educational institute);

Prior training includes prior training)

5. Crew of intercontinental airliner;

6. Public officials and reporters who are dispatched overseas;

7. Persons employed overseas;

8. Overseas medical treatment which cannot be provided domestically;

9. Emigration;

10. Studying abroad (excluding any study abroad to take a high school course). In this case, the period of overseas travel permission shall be provided for in Article 124;

(1) The age limit for each school referred to in paragraph (1) shall be limited, and persons who are enrolled in any foreign school

147 (2) (proviso) and (3) of the same Article shall be until the age provided for in the proviso to paragraph (2) of the same Article.

11. Where the Commissioner of the Military Manpower Administration deems it particularly necessary, such as visits to relatives or relatives.

(2) Persons subject to permission for overseas travel, detailed criteria and period of permission under paragraph (1) shall be military service records, travel purposes, and leisure.

The Commissioner of the Military Manpower Administration shall determine to the extent that there is no impediment to imposing military service in consideration of their period.

(c)

Article 147 (Permission for Extension of Overseas Travels)

(1) Those who intend to obtain permission to extend overseas travel under Article 70 (3) of the Act shall be determined by the Commissioner of the Military Manpower

An application for extension of documents proving re-purpose and for overseas travel (including an application in electronic form);

C) must submit B to the Commissioner of the Military Manpower Administration via the head of diplomatic missions abroad: Provided, That Article 146(1)7

A person who intends to obtain permission for extension of overseas travel for reasons other than subparagraph 9 shall undergo the head of an overseas diplomatic mission.

It can be submitted to the Commissioner of the Military Manpower Administration.

(2) Where the Commissioner of the Military Manpower Administration receives an application for extension of overseas travel under paragraph (1), he/she shall stay overseas

Permission may be granted to the extent that it is deemed not to hinder the imposition of military service duty: Provided, That a foreign country shall be permitted.

Persons attending schools (excluding high schools) shall be granted permission by no later than the age limit for each school under Article 124.

person who has difficulty in graduating or obtaining a degree within the age limit for each school shall be over 29 years of age;

Within the extent not permitted, the age limit for each school may be extended by up to one year.

(3) Notwithstanding the proviso to paragraph (2), the Commissioner of the Military Manpower Administration shall impose the age of 30 on those who attend graduate schools in foreign countries.

If it is possible to obtain a doctorate before June, it shall be permitted by June 30 of the year in which it reaches 30 years of age.

of the corporation.

(4) Where the Commissioner of the Military Manpower Administration determines whether to grant permission for extension of overseas travel under paragraphs (2) and (3), the decision

A division shall be notified to the head of an overseas diplomatic mission without delay and shall be notified to him/her.

▣ 병역의무자 국외여행 업무처리 규정 ( 법무청훈령 제1426호 )

Article 5 (Scope of Permission by Purpose)

(1) The period of permission and permission for each overseas travel purpose under Article 146 (2) of the Decree shall be specified in attached Tables 1 and 1.

2. The same shall apply to 2.

Article 13 (Permission for Extension of Overseas Travel)

(1) Where a person who has obtained permission to travel abroad is unable to return to Korea within the permission period, fifteen days after the permission period expires

A written application for extension of overseas travel shall be submitted to the director of a regional military manpower office.

agency shall obtain permission for extension of overseas travel for purposes other than overseas employment and immigration;

Scenic may be submitted to the director of a regional military manpower office without going through the head of a diplomatic mission abroad.

(2) Where the head of a diplomatic mission abroad has received an application for extension of overseas travel, after verifying related documents.

The original shall be kept in the order of the date of receipt and shall be handled as follows:

1. Diplomatic Computer Network (E - Consul) The diplomatic mission connected to this connection shall pass through the Ministry of Foreign Affairs through the Diplomatic Computer Network with an electronic file.

director General of the regional manpower office

2. Diplomatic missions that are not connected with the diplomatic computer network are local military affairs via the Ministry of Foreign Affairs with a copy of the Diplomatic Note (Boon).

Transmission to the head of the Gu

(3) Upon receipt of an application for extension of overseas travel, the director of a regional military manpower office shall handle within ten days.

person who has applied for permission to extend overseas travel through the head of an overseas diplomatic mission;

(Head of Overseas Diplomatic Missions) The Minister of Foreign Affairs shall notify the principal thereof via B.

(4) Except as otherwise provided for in this Article, Articles 4 through 11, concerning the extension of overseas travel.

shall apply mutatis mutandis to the provisions of this Act.

[Attachment 1] Permission for overseas travel or extension of the period of overseas travel for any purpose other than immigration

A person shall be appointed.

참조조문