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(영문) 서울행정법원 2011. 1. 20. 선고 2010구합10709 판결
[보충역처분·공익근무요원소집및교육소집통지처분취소][미간행]
Plaintiff

Plaintiff (Law Firm Lee non-EL et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Military Manpower Office

Conclusion of Pleadings

December 16, 2010

Text

1. The defendant's disposition of replacement status as of January 28, 2010 against the plaintiff, and disposition of call-up for public interest service as of February 16, 2010 shall be revoked in entirety.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The plaintiff's status

(1) In 1977, the Plaintiff was born between parents with the nationality of the Republic of Korea in the United States and acquired the citizenship of the United States and acquired the citizenship of the Republic of Korea.

(2) The Plaintiff’s father acquired permanent residency in the United States around 1975, and resided in the Plaintiff’s mother and the United States, thereby causing the Plaintiff’s leakage and the Plaintiff.

(3) The Plaintiff’s family member returned to the Republic of Korea around 1978 and resided until 1990. The Plaintiff’s father returned to the Republic of Korea as above and completed the Plaintiff’s report of birth and resident registration, and the Plaintiff completed the Plaintiff’s report to an elementary school in Korea for the said period.

(4) The Plaintiff’s family member moved to the United States around 1990, and the Plaintiff completed a middle school, a high school, or a university at that place and served in a company located in the United States from around 2000.

(5) The father of the Plaintiff was residing in Japan as a workplace issue around 1999, but waived his permanent residence in the United States in 2001 and reported his permanent residence in the Republic of Korea.

B. Disposition of notice of draft physical to the plaintiff

On December 17, 2009, the Plaintiff entered the Republic of Korea. The Minister of Justice notified the Plaintiff of the suspension of departure on the ground that the Plaintiff is subject to the duty of military service on December 23, 2009. In accordance with Article 11 of the Military Service Act, the Defendant notified the Plaintiff of the draft physical as of January 28, 2010 on the date and time of the draft physical examination (hereinafter “instant draft physical notice”).

(c) Disposition of supplemental service to the plaintiff, and disposition of call-up for education;

(1) The Plaintiff received physical grade IV as a result of a physical examination on January 28, 2010.

(2) Based on the above physical grade determination, the Defendant issued a disposition of replacement in the Plaintiff on January 28, 2010 pursuant to Article 14(1) of the Military Service Act. Based on the disposition of replacement, on February 16, 2010 based on the above disposition of replacement, the Defendant notified the Plaintiff of a call-up for education to call-up for public duty service, which serves as the service institution of the Dongjak-gu Seoul Metropolitan Government Office as the service institution, from March 29, 2010 to April 23, 2010 (hereinafter “each disposition of this case” in combination with the above disposition of replacement).

[Ground of recognition] Facts without dispute, Gap 1 and 2 evidence, Gap 3 through 7 evidence, Gap 8-1 to 4, Gap 9 evidence, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) Article 149(1)1 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 1995, Feb. 1, 1995) provides that a person who has obtained a permanent resident right abroad at the time when the Plaintiff was 18 years of age and was transferred to the first citizen service shall be deemed to have obtained the permission for overseas travel until he returned to the Republic of Korea for the purpose of permanent residence in the Republic of Korea. However, as a U.S. citizen, the Plaintiff is deemed to have the substantial qualification to obtain

In addition, even if the revised Enforcement Decree of the former Military Service Act (amended by Presidential Decree No. 18891 of Jun. 30, 2005), the plaintiff resided together with his parent with his parent before he reaches the age of 18. Since the plaintiff resided independently with his parent and continues to reside independently in the United States, it shall be deemed to be a foreigner of overseas travel pursuant to Article 149 (1) 3 as well as a foreigner of overseas travel pursuant to Article 149 (1) 1 as a permanent resident under Article 149 (1) 1 as well. Thus, the plaintiff shall be deemed to be a foreigner of overseas travel pursuant to

Even if the Plaintiff’s above interpretation of the former Enforcement Decree of the Military Service Act does not meet the requirements as deemed to obtain permission for overseas travel, the Plaintiff acquired the status as deemed to obtain permission for overseas travel pursuant to the former Enforcement Decree of the Military Service Act, which was enforced in 195, so in the case of the Plaintiff under the principle of prohibition of retroactive legislation, the laws at the time of 1995 are applied and accordingly, the Plaintiff

As above, the plaintiff constitutes a person deemed to have obtained permission for overseas travel under Article 128 (1) 1 of the Enforcement Decree of the Military Service Act. Nonetheless, the disposition of this case, which notified the plaintiff to undergo a draft physical, is unlawful, and each disposition of this case based on the physical grade judgment in the draft physical conducted accordingly, is also illegal, and each disposition of this case, which the plaintiff imposed the duty of military service, even though it constitutes a person whose duty of military service is postponed, is in itself unlawful.

(2) All of the Plaintiff’s family members, including the Plaintiff, have resided in the United States until now, and the Defendant was aware of the Plaintiff’s domicile in the United States, and thus, the Defendant should have postponed the draft physical ex officio with respect to the Plaintiff pursuant to Article 60(1) and Article 82 of the 2010 Draft Physical Examination Plan of the Military Service Act. This is not the Defendant’s discretion but the binding act.

In addition, Article 95(2) of the former Enforcement Decree of the Military Service Act, which was enforced in around 1990 by all the family members including the plaintiff, at the time of moving to the United States, required the plaintiff to postpone the draft physical ex officio with respect to the persons born abroad and residing abroad. Since the plaintiff trusted this and provided a basis for living in the United States, the defendant should have postponed the draft physical.

As such, the defendant should postpone the draft physical to the plaintiff, but the notice disposition of the draft physical was unlawful. As long as the notice disposition of this case is unlawful, each disposition of this case is unlawful.

(3) From 196 to 196, the time when the Plaintiff’s duty of military service begins and the Defendant had to obtain permission for overseas travel, the Defendant did not provide the Plaintiff with any guidance or disposition of the duty of military service, and the Plaintiff did not have any problem in the entry and departure examination while entering and leaving the Republic of Korea several times, and the Plaintiff’s resident registration abstract was managed as a postponed overseas system. As such, the Defendant expressed a public opinion that the Plaintiff would not impose the duty of military service explicitly or implicitly to the Plaintiff. Since each disposition of this case goes against the principle of trust protection.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) The base point for determining whether each of the dispositions of this case was illegal

(A) In an appeal seeking the revocation of an administrative disposition, the illegality of an administrative disposition should be determined at the time of disposition. Thus, the illegality of each disposition of this case should be determined in accordance with the military service law at the time of disposition.

(B) As to this, the Plaintiff should determine whether each disposition of this case was unlawful in accordance with the Military Service Act, which was enforced at the time when the Plaintiff was transferred to the first citizen service at the age of 18, 195. The Plaintiff asserted that: (a) as a U.S. citizen, the Plaintiff obtained the status of a person deemed to have obtained the permission for overseas travel pursuant to Article 149(1)1 of the Enforcement Decree of the Military Service Act, which was enforced around 1995, since the Plaintiff was a U.S. citizen with the substantial qualification to obtain the permanent resident status by residing in the U.S.; (b) the Enforcement Decree of the Military Service Act was amended by Presidential Decree No. 18891 on June 30, 2005, which was amended by Presidential Decree No. 18891, thereby adding a provision on foreign citizens to Article 149(1)3 of the Enforcement Decree of the Military Service Act,

(C) On the other hand, even if the Plaintiff acquired the status of deemed overseas travel pursuant to Article 149(1)1 of the Enforcement Decree of the Military Service Act, which was enforced around 1995 as alleged by the Plaintiff, it cannot be deemed that Article 149(1) of the Enforcement Decree of the Military Service Act amended on June 30, 2005 goes against the principle of prohibition of retroactive legislation. The Plaintiff’s assertion is without merit.

① The duty of national defense under the Constitution is continuously borne by anyone who is a citizen of the Republic of Korea. Since the legislators may specifically form the content of the duty of national defense by law, setting the scope of persons subject to conscription or call-up after the time of the new legislation is merely selecting those suitable for military service among the people as at the time of the legislation, and does not include matters that have been completed in the past. Therefore, in a case where the legislators set the scope of persons deemed to obtain permission for overseas travel differently from the previous ones, thereby changing the legislation that sets forth the scope of persons subject to postponement of draft physical examination or enlistment, it cannot be said that the legislation

② Article 149(1) of the Enforcement Decree of the Military Service Act provides for the scope of persons deemed to have obtained permission for overseas travel under the premise to determine the scope of persons subject to postponement of draft physical examination or enlistment, etc. pursuant to Article 128(1)1 of the Enforcement Decree of the same Act. This is a very wide scope of the legislative formation right of legislators inasmuch as it is necessary for a strong public interest to maintain appropriate military power by flexibly determining the scope of persons liable for military service according to a flexible change according to the circumstances that the legislators change as an area concerning the formation of direct military power, and therefore, the citizens may be able to change at any time according to all circumstances.

③ Article 149(1)1 of the Enforcement Decree of the Military Service Act, which was in force in 1995, provides that a person who obtained permanent residence overseas, shall be deemed to have obtained the permission for overseas travel until he returns to Korea for the purpose of permanent residence. The above provision is a provision that regulates the facts and legal relations in progress without completing it until he reaches a given age and is exempted from the draft physical and the duty of enlistment. Thus, the change of the pertinent provision is merely a subordinate legislation.

④ Before the Enforcement Decree of the Military Service Act was amended on June 30, 2005, Article 149(1) does not provide for a foreign citizen with the provision on the foreign citizen under Article 149(1). Thus, it is unclear whether a foreign citizen with the right to obtain permission for overseas travel is in the position of deemed a person with the right to obtain permission for overseas travel, and thus, there was an interpretation of a dispute. However, Article 149(1) of the Enforcement Decree

(2) Postponement of draft physical or enlistment

(A) Article 60(1)2 of the Military Service Act provides that a person who is subject to a draft physical examination and stays or resides abroad shall be able to postpone the conscription or call for a person who has undergone the draft physical examination and stays or resides abroad. Article 60(2) of the Enforcement Decree of the Military Service Act provides that a person who has obtained the permission for overseas travel or the permission for overseas travel pursuant to Article 70(1) and (3) of the Military Service Act shall be deemed to have been postponed the draft physical or the enlistment under Article 60(1)1 and 2 or (2) of the Military Service Act where a person who has obtained the permission for overseas travel or the permission for overseas travel is staying or residing abroad.

The above provision provides that where a person subject to the draft physical obtains permission for overseas travel, the draft physical shall be deemed to have been postponed, and where a person subject to the draft physical obtains permission for overseas travel, the draft physical shall be deemed to have been postponed, such as conscription or call-up. Therefore, if the Plaintiff, who is subject to the draft physical, is deemed to have obtained the permission for overseas travel and the draft physical shall be deemed to have been postponed under the above provision, the draft physical notification disposition was imposed on the person subject to the postponement of

Furthermore, even if a person who is in the position of a person who is deemed to have obtained permission for overseas travel under the above provisions even if he undergoes the draft physical, it is deemed that the conscription or call is postponed pursuant to the above provisions (Article 60(2) of the Military Service Act and Article 128(1)1 of the Enforcement Decree of the Military Service Act are not postponed only when he acquires the status of a person who is deemed to have obtained permission for overseas travel after the draft physical was conducted, but also when he is in the position of a person who is deemed to have obtained permission for overseas travel prior to the draft physical examination, it shall be deemed that the conscription or call is postponed. Therefore, it is reasonable to deem that each of the instant dispositions

(B) As to this, the Defendant did not succeed to the defects of each of the instant dispositions, which are separate dispositions from the instant draft physical notification dispositions and subsequent procedures, against the Plaintiff. Accordingly, the Defendant asserts that each of the instant dispositions is lawful, inasmuch as the grounds for illegality alleged by the Plaintiff pertains to the defects of the instant draft physical notification dispositions, not to the defects of each of the instant dispositions itself, and each of the instant dispositions is a series of dispositions based on physical grade assessment conducted in the instant draft physical notification dispositions.

However, as seen above, if the Plaintiff is in the position of deemed a person to obtain permission for overseas travel under the Enforcement Decree of the Military Service Act, all of the dispositions of this case are imposed on the person to postpone the duty of military service under the relevant Acts and subordinate statutes, and it is unlawful regardless of whether the Plaintiff, who completed the draft physical examination following the disposition of notice of the draft physical examination in this case, can dispute

(3) Whether grounds for postponement under Article 128(1)1 of the Enforcement Decree of the Military Service Act exist

(A) Permission for overseas travel of those liable

Article 70(1) and (3) of the former Military Service Act (amended by Act No. 7977 of Sep. 22, 2006) provides that persons liable for military service who have completed active duty service (including persons deemed to have completed active duty service), persons who have completed their public duty personnel service (including persons deemed to have completed their public duty personnel service), persons other than those transferred to the second citizen service shall obtain the permission of the Commissioner of the Military Manpower Administration when they wish to make an overseas trip, and those who have obtained the permission of an overseas trip shall obtain the permission of the Commissioner of the Military Manpower Administration at least 15 days before the expiry of the period when they were unable to return to the Republic of Korea within the period of permission, and those who have left the Republic of Korea before the first citizen service before being transferred to the first citizen service by January 15 of the year when they become 18 years old. The above provision provides that those who have not obtained the permission of the Commissioner of the Military Manpower Administration when they want to make an overseas trip after being amended by Act No. 7977 of Sep. 22, 2006.

Article 149(1) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 19789, Dec. 29, 2006) provides that where a person liable for military service satisfies the following requirements and continues to reside abroad before he reaches 18 years of age, he shall be deemed to have obtained the permission for overseas travel by the age of 35. However, as seen earlier, in the process of revising the relevant provisions following the revision of the Military Service Act on September 22, 2006 and the abolition of the permission system for overseas travel by a person who is not 25 years of age as prescribed by Presidential Decree No. 19789, Dec. 29, 2006, where a person liable for military service continues to reside abroad and meet the following requirements before he reaches 25 years of age, the said provision shall be deemed to have obtained the permission for overseas travel by the age of 35.

According to the above provisions, in a case where a person liable for military service is deemed to have obtained the permission for overseas travel until he reaches the age of 18 pursuant to Article 149(1) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 19789 of Dec. 29, 2006), and where it is deemed to have obtained the permission for overseas travel until he reaches the age of 35 as he continuously resides abroad after meeting the following requirements before he reaches the age of 18 pursuant to Article 149(1) of

In a case where the Plaintiff deemed to have obtained the permission for overseas travel until the age of 35, in conformity with the requirements of Article 149(1) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 19789, Dec. 29, 2006) before he turns 18, even if he does not meet the requirements of Article 149(1) of the Enforcement Decree of the amended Military Service Act as of December 29, 2006, even if he does not meet the requirements of Article 149(1) of the Enforcement Decree of the amended Military Service Act, it is deemed to have obtained the permission for overseas travel until the age of 35. Therefore, it is deemed that the Plaintiff

(B) Whether the Plaintiff constitutes a person who is deemed to have obtained permission for overseas travel pursuant to Article 149(1)3 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 19789, Dec. 29, 2006)

① Article 149(1) of the former Enforcement Decree of the Military Service Act provides that, where a person liable for military service or his parents fall under any of the following subparagraphs and continuously reside abroad before he turns 18, the permission for overseas travel up to 35 years of age shall be deemed to have been granted. In addition, subparagraph 3 provides that:

First, if a person liable for military service was born in a foreign country before he reaches 18 years of age and resides together with his parents with the nationality or citizenship of the country concerned, second, if he continuously resides in a foreign country after 18 years of age meets the two requirements, the permission for overseas travel shall be deemed to have been granted until 35 years of age. In order to prevent a person liable for military service, who was born in a foreign country and obtained the nationality or citizenship of the country concerned, from evading military service under the law by using the atomic birthrate, it shall be deemed that the person liable for military service, who was born in the foreign country and obtained the citizenship or citizenship of the country concerned, has been residing in the foreign country

As seen above, the Plaintiff was born in the United States in 1977 and resided in the Republic of Korea from 1978 to 1990, and thereafter resided for the purpose of permanent residence as his parents in the United States. Since the Plaintiff continued to reside in the United States after 1995 that became 18 years old, the Plaintiff is deemed to have the status of deemed to have obtained permission for overseas travel under the above provisions.

② As to this, the Defendant asserts to the effect that the person liable for military service should continue to reside with his parents in a foreign country even after he was aged 18, and that the Plaintiff failed to meet the above requirements on the grounds that he did not reside with his parents in the United States since 199.

In order to prevent the evasion of military service through the law by using the prime childbirth, etc. as seen above, the above provision provides that a person liable for military service born in a foreign country and who has obtained nationality or citizenship from the foreign country shall reside in the relevant country for the purpose of permanent residence, such as parents, until before he reaches the age of 18 years prior to his full adult age; where a person liable for military service resides independently from his parents after his adult age, military service cannot be deemed to evade military service under the law; and in light of the text of the law, the above provision does not seem to be prescribed as the requirement for maintaining the principle of permission to travel abroad to ensure that a person liable for military service will continue to reside as his parents even after his age of 18; if the person liable for military service becomes adult, it is interpreted as the requirement for maintaining the principle of permission to travel abroad, the above provision does not constitute the defendant's assertion that the plaintiff did not reside with his parent in the United States from around 199 to the age of 18, and thus, the defendant's above provision has no merit.

(4) The theory of lawsuit

The Plaintiff constitutes a person deemed to have obtained permission for overseas travel pursuant to Article 149(1)3 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 19789, Dec. 29, 2006); thus, the Plaintiff constitutes a person whose draft physical examination or enlistment, etc. is postponed pursuant to Article 128(1)1 of the Enforcement Decree of the Military Service Act. Accordingly, each of the instant dispositions is unlawful since it imposes the duty of military service on the person whose duty of

3. Conclusion

The plaintiff's claim of this case is justified and accepted.

[Attachment]

Judges Sung Sung (Presiding Judge)

(1) On January 18, 2010, the Plaintiff filed a lawsuit against the Defendant seeking revocation of the instant draft physical notification disposition with the Seoul Administrative Court 2010Guhap25555, but the said court rejected the lawsuit on the ground that the Plaintiff had no interest in filing a lawsuit seeking revocation since the Plaintiff had undergone a draft physical examination on January 28, 2010 according to the said disposition. The instant case is currently pending in the appellate court as Seoul High Court 2010Nu24373.

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