The case holding that Article 113 (1) 1 of the Enforcement Decree of the Military Service Act includes conditional permanent sovereignty which a person liable for military service receives from a U.S. legal branch

A person liable for military service obtains conditional permanent residence from U.S. legal status after entering a marriage with a U.S. citizen's citizenship and filing a marriage report in the U.S.., and this conditional permanent residence status is a permanent residency status for two years permitted due to marriage with a U.S. citizen or permanent resident, etc. for the two-year period, unless a disguised marriage is discovered during that two years, or unless a cause for revocation of permanent residency under the Civil Act occurs, it is different from a general permanent residency status. If it is distinguishable from a temporary permanent residency status that is issued as a temporary measure for a considerable time due to the preparation of a permanent residency card, there is no ground to view that the above conditional permanent residence status is excluded from the above conditional permanent residency status under Article 113 (1) 1 of the Enforcement Decree of the Military Service Act.

Article 113 of the Enforcement Decree of the Military Service Act

Borrowing

Commissioner of Military Manpower Administration

1. As of May 6, 1991, the defendant's disposition of non-permission to extend the period of stay abroad against the plaintiff shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. According to Gap evidence Nos. 1, 3 and 5, Eul evidence Nos. 4-1, 2, and 3, Eul evidence Nos. 6-1 through 3, the plaintiff was disposed of as a person to be enlisted in active service as a result of the draft physical examination on Mar. 6, 1985, and after obtaining permission for overseas travel from the defendant for the purpose of studying abroad (2 years) from Jun. 20, 198 to Jun. 19, 198, it was difficult for the plaintiff to return abroad within the period of validity after obtaining permission for overseas stay from the defendant two times more than December 31, 190. The plaintiff was unable to obtain permission for overseas stay from the defendant two times more than a half-year grace period since it was inevitable for the plaintiff to enter his citizenship in the U.S. on December 31, 198, and since it was inevitable for the plaintiff to enter his permanent stay in the U.S., the plaintiff did not obtain permission for an extended period of two years after filing a conditional marriage.

2. First, the plaintiff asserted that since the plaintiff had obtained permanent residency in the United States and resided in the country where he had obtained his permanent residency in the United States for more than one year, the permission period until he returned to the Republic of Korea pursuant to Article 113 (1) 1 of the Enforcement Decree of the Military Service Act shall be deemed to have been granted. The defendant asserted that the defendant's conditional permanent residency that is not a general permanent residency, which is a conditional permanent residency that is not a general permanent residency, does not fall under Article 113 (1) 1 of the Enforcement Decree of the Military Service Act, but the defendant's disposition of nonpermission pursuant to Article 112 (3) of the Enforcement Decree of the Military Service Act before April 1, 1989, Article 29 (4) 4 (c) of the Regulations on the Management of Overseas Travel Services (Ordinance No. 117, Oct. 25, 198) of the Military Manpower Administration's Directive No. 189 of Apr. 1, 1989.

Therefore, Article 62 (3) of the Military Service Act and Article 112 of the Enforcement Decree of the same Act provide that "if a person liable for military service or his parents fall under any of the following subparagraphs, the person liable for military service shall be deemed to have obtained the permission for overseas travel until he returns to the Republic of Korea for the purpose of permanent residence" as provided in subparagraph 1 of the above provision, "it shall be deemed that the person liable for military service has obtained the right of permanent residence for at least one year prior to issuance of the notice of payment of a fine under Article 116 and who has obtained the right of permanent residence for at least one year in the country with the right of permanent residence." Thus, the person liable for military service who obtained the above conditional permanent residence permit under Article 113 (1) 1 of the Enforcement Decree of the same Act shall not be deemed to have obtained the right of permanent residence until the date of issuance of the said right of permanent residence until the date of issuance of the said right of permanent residence under Article 113 (1) 1 of the same Enforcement Decree of the same Act, and thus, the plaintiff shall be deemed to have obtained the permission for overseas travel.

3. Thus, the defendant's above non-permission disposition is unlawful, and the plaintiff's claim of this case seeking its revocation is legitimate without any need to decide on the remaining arguments of the plaintiff, and it is so decided as per Disposition.

Judges Kim Young-il (Presiding Judge)