A. Requirements for exemption from military service under Article 24(2) of the former Military Service Act

B. Whether the disposition agency can cancel it by a separate administrative act even if there was no defect at the time of the administrative disposition, and no separate legal basis exists

(c) Whether the permission for overseas travel may be revoked where a ground for returning home for permanent residence before the establishment of Article 113(3) of the Enforcement Decree of the former Military Service Act occurs;

D. The meaning of a person subject to enlistment in active service under Article 57 (1) 2 of the former Military Service Act

A. Article 24 of the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983) provides that a former family shall be exempted from military service with respect to a person who has obtained a permanent resident status in a foreign country, including Japan, under the title that the draft physical extension and exemption from military service of a person located abroad are the same as that of the Republic of Korea. In full view of the provisions of the above provision, the legislative intent and amendment process, etc., the former family needs to obtain a permanent resident status with the nationality of the Republic of Korea as the requirements for exemption from military service under Article 24(2) of the same Act.

(b) 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.

C. Although Article 113(3) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 14397, Oct. 6, 1994) provides the grounds for revoking the permission for overseas travel, it is reasonable to deem that the above grounds arise after obtaining the permission for overseas travel, such circumstances may be deemed to have occurred due to changes in circumstances where the permission for overseas travel may be revoked or the need for important public interest. Thus, the disposition agency may revoke the permission without any separate legal grounds for revoking the permission for overseas travel prior to the establishment of the above provision.

D. It is obvious that a person subject to enlistment in active service under Article 57(1)2 of the former Military Service Act (amended by Act No. 4685, Dec. 31, 1993) refers to a person to be enlisted in active service in accordance with a grammatic interpretation.

A. Article 24(2)(b) of the former Military Service Act (amended by Act No. 3696 of Dec. 31, 1983). Article 1 of the Administrative Litigation Act / [General Administrative Disposition] Article 1 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 14397 of Oct. 6, 1994) Article 113(1) and (3)(d) of the former Enforcement Decree of the Military Service Act (amended by Act No. 4685 of Dec. 31, 1993)

B. 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 et al.

Seoul Military Manpower Office

Seoul High Court Decision 94Gu3300 delivered on December 14, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

Article 24 of the Military Service Act (amended by Act No. 3696 of Dec. 31, 1983) provides that a former family member of the Republic of Korea shall be exempted from military service for a person who has obtained a permanent resident status in a foreign country including Japan under the title of the extension of the draft physical examination and exemption from military service by a person residing abroad. In full view of the system of the above provision and its legislative intent and amendment process, the requirements for exemption from military service under Article 24(2) of the above Act shall require the former family member to obtain a permanent resident status in the Republic of Korea.

Therefore, as determined by the court below, at the time of July 15, 1983 when the plaintiff acquired the permanent residence right, the former family did not acquire the permanent residence right, and even if the above non-party 1 acquired the permanent residence right as of January 27, 1984, the former family acquired the permanent residence right, but at the time when the plaintiff and his family were residing in Korea, if the non-party 2 was residing in Korea, the plaintiff did not meet the requirements for exemption from military service under Article 24 (2) of the above Military Service Act, and therefore the judgment of the court below to the same purport is just, and there is no reason for the argument.

2. On the second ground for appeal

Article 113(3) of the Enforcement Decree of the Military Service Act (Presidential Decree No. 13385, Jun. 11, 1991) provides that "where a person who is deemed to have obtained permission for overseas travel pursuant to the provisions of paragraph (1) returns to the Republic of Korea for the purpose of permanent residence, or is employed or staying in Korea for not less than one year, he may cancel the permission for overseas travel and impose the duty of military service on him." The above provision is newly established on the above date. However, even though there are no particular defects at the time of the disposition, if there is no separate legal grounds to cancel the permission after the disposition, it may be cancelled as a separate administrative act which would lose its effect if there is no change in circumstances that make it unnecessary to continue to maintain the original disposition, or if there is a need to cancel the permission for overseas travel without any justifiable reason to cancel the permission for overseas travel, it shall be deemed that the above ground for revoking the permission for overseas travel has occurred within the Republic of Korea or as a significant reason to cancel the permission for overseas travel.

Therefore, if the plaintiff returned to the Republic of Korea for the purpose of permanent residence as determined by the court below, the defendant can revoke the plaintiff's permission for overseas travel without any separate legal ground for the revocation. Thus, the judgment of the court below is justified.

In addition, it cannot be accepted as an independent opinion that only states that "a person who is deemed to have obtained permission for overseas travel under paragraph (1)" under Article 113 (3) of the Enforcement Decree of the above Act means a person who is deemed to have obtained permission for overseas travel along with his surety's guarantee

There is no reason for this issue.

3. On the third ground for appeal

Article 57 (1) 2 of the Military Service Act (amended by Act No. 4685 of Dec. 31, 1993) provides that a person in active duty service or defense soldier (including a person subject to active duty enlistment or defense call-up) who emigrates to a foreign country together with his family may be subject to a disposition such as enlistment in active duty service. Article 102 (3) of the Enforcement Decree of the above Military Service Act provides that the director of a regional military manpower office shall transfer to the recruit service or exempt a defense call-up under Article 57 (1) 2 of the Act for a person who is a person subject to enlistment in active duty service or defense call-up and emigrates to a foreign country with his family. Thus, it is evident that the person subject to enlistment in active duty service refers to a person subject to enlistment in active duty service, such as the Plaintiff, and in light of the facts as to the entry and residence of the Plaintiff and his family members confirmed by the lower court, the Plaintiff cannot be deemed to fall under the person's family members on March 3, 1985.

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

Justices Ahn Yong-sik (Presiding Justice)