Persons who have obtained permanent residence overseas with Korean nationality and exemption from military service;

Article 24 (2) of the Military Service Act provides that a person who has obtained permanent residence abroad with a Korean nationality shall be naturally exempted from military service, and it does not result in any disposition taken by an administrative agency, and it does not result in the validity of exemption from military service.

Article 24 of the Military Service Act

Supreme Court Decision 73Nu248 delivered on August 20, 1974 (Supreme Court Decision 10800Da10800, Supreme Court Decision 22 ② ②40, Decision 24(1)1521 of the Military Service Act, Court Gazette 497No8014 Decided August 20, 197)

Plaintiff 1 and one other

Commissioner of Military Manpower Administration

The defendant's disposition imposing a fine for negligence of KRW 850,00 on the plaintiffs on January 5, 1972 is revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

The facts that the Defendant imposed an administrative fine of KRW 850,00 on the Plaintiffs on January 5, 1972, and the reasons for the disposition are that, when the Nonparty was a military medical specialist, the Plaintiffs guaranteed the Plaintiffs to return to the Republic of Korea until June 30, 1971, which was the date of the designation of the Republic of Korea. The Nonparty did not return to the Republic of Korea even after the aforementioned designation date, and thus, the Nonparty is subject to an administrative fine pursuant to Article 78(4) of the Military Service Act. The Nonparty did not return to the Republic of Korea after the lapse of June 30, 1971, and there is no dispute between the parties as to the facts that the Nonparty did not return to Korea and the fact that the Plaintiffs guaranteed the return to Korea

Since the Plaintiff obtained permanent residence from the U.S. on May 12, 1971 before the date and time of designation of the above return, it is deemed that “the non-party who obtained permanent residence from the Republic of Korea nationality” was exempted from the duty of military service under the provisions of Article 24(2) of the Military Service Act, and the non-party who was not obligated to return to the Republic of Korea for continuing the military service under the Military Service Act is not liable for breach of duty to the guarantor, the Defendant did not obtain permanent residence from the U.S. in the U.S. and even if he obtained permanent residence, it is necessary to exempt the non-party from the duty of military service as a result of a disposition to exempt the director of the regional military manpower office from military service under Article 44 of the Enforcement Decree of the Military Service Act and Article 53 of the Enforcement Rule of the same Act, and therefore, it cannot be viewed that the non-party’s exemption from military service cannot be viewed as a mere exemption from military service under the provision of Article 24(2) of the same Act.

Therefore, the defendant's disposition imposing a fine for negligence on the plaintiff who is the guarantor of return to Korea on the ground that the non-party does not return to Korea for military service is illegal. Accordingly, the plaintiffs' claim seeking the revocation of the disposition of imposition is reasonable, and therefore, it is so accepted and the costs of lawsuit are assessed against the losing party.

Judge Jeon Soo-hoon (Presiding Judge)