Plaintiff (Law Firm Chungcheong, et al., Counsel for the plaintiff-appellant)

Seoul Military Manpower Office

July 13, 2011

Seoul Administrative Court Decision 2010Guhap10709 decided January 20, 201

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The disposition of replacement service rendered by the Defendant to the Plaintiff on January 28, 2010, and disposition of public duty personnel call and notice of call for education as of February 16, 2010 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Quotation of judgment of the first instance;

The reason for the judgment of the first instance is reasonable, and therefore, it is cited as the reason for this judgment in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2. Judgment on the argument in the appellate trial

A. As to the assertion that a legal obligation has been violated

1) The defendant's assertion

According to Article 149(2) of the Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 14447 of Dec. 23, 1994), the defendant asserts to the effect that in order for the defendant to be deemed to have obtained permanent residence overseas and obtained permission for overseas travel, the documents proving such fact should be submitted to the Commissioner of the Military Manpower Administration through the head of the diplomatic mission abroad. Since the plaintiff did not go through such procedures, the plaintiff violated the legal obligations and therefore, it cannot be deemed to have violated

2) Determination

According to the reasoning of the judgment of the court of first instance cited earlier, according to the Military Service Act and the relevant provisions of the Enforcement Decree thereof that were in force at the time of the instant disposition, persons who are deemed to have obtained permission for overseas travel by the time they reach 35 years of age pursuant to Article 149(1) of the former Enforcement Decree of the Act (amended by Presidential Decree No. 19789, Dec. 29, 2006 (hereinafter “former Enforcement Decree”), shall be deemed to have obtained permission for overseas travel by the time they reach 35 years of age in accordance with the Act and subordinate statutes

However, the enforcement decree before the amendment does not provide for the submission to the Commissioner of the Military Manpower Administration through the head of diplomatic missions abroad, which prove that the defendant has obtained permanent residence rights in a foreign country. The defendant's assertion has no merit.

2) The assertion that the prohibition of retroactive legislation violates the principle of prohibition of retroactive legislation

The Defendant asserts that applying the enforcement decree prior to the amendment in this case goes against the principle of retroactive legislative prohibition. However, the legality of administrative disposition is in principle governed by the law that was enforced at the time of the disposition. Moreover, as seen above, it is clear that the statute that was enforced at the time of the disposition in this case, the person deemed to have obtained permission for overseas travel pursuant to the Enforcement Decree prior to the amendment, is also deemed to have been deemed to have obtained permission for overseas travel pursuant to the statutes that were enforced at the time of the disposition in this case. It is apparent that

C. The assertion that living together with the parent is a requirement for the existence of the principle of permission.

The defendant asserts that the defendant should continue to reside with his parents in a foreign country, not only until the age of 18 but also after that time, in order to be deemed to have obtained permission for overseas travel pursuant to the former Enforcement Decree.

However, according to Article 149(1)3 of the former Enforcement Decree prior to the amendment, in order for a person liable for military service to be deemed to be a person permitted to travel overseas until the age of 35, it is only a requirement that ① a person liable for military service born in a foreign country before he reaches the age of 18 and shall obtain nationality or citizenship from the relevant country, and ② a person who shall continue to reside overseas. Therefore, it is difficult to accept as an interpretation contrary to the language and text of the provision that the person liable for military service shall continue to reside with his parents after he reaches the age of 18, as

3. Conclusion

The defendant's appeal is dismissed.

Judges Cho Jong-chul (Presiding Judge)