[1] The requirements to constitute "when a person works for an enterprise which is not dispatched" under Article 91-3 (2) [Attachment 3] of the Enforcement Decree of the Military Service Act, which provides the criteria for extending the mandatory service period of technical research personnel

[2] The case holding that the standard should be applied on the ground that the technical research personnel's performance of related research and development duties is not "when the person works for a business entity that is not dispatched" but "when the person takes a business trip without approval or notification of personal changes" in the case where the person conducts the relevant duties within the scope of the management and supervision of the head of the designated entity.

[1] Article 91-3 (2) [Attachment 3] of the Enforcement Decree of the Military Service Act, which provides the criteria for extending the mandatory service period of technical research personnel, shall be classified into "where a person works for another business entity which is not a designated business entity at the time of incorporation into "where a person works for another business entity which is not a designated business entity," and "when an education, training, a business trip, or a dispatch is conducted without approval or notification of changes," and in the case of the preceding one, it shall be allowed to engage in extension only when the period is less than three months, and in the case of the last one to six months, a warning shall be given, and in the case of the second one to be extended for more than six months, it shall be allowed to engage in extension even when the degree of punishment differs depending on the type of violation, and it shall not be merely because the degree of punishment differs from the extent of administrative danger in the management of military service resources, and in case of the preceding one, it shall be limited to "where a person works for another designated business entity is not a designated business entity or a designated business entity subject to be subject to supervision."

[2] The case holding that the standard should be applied on the ground that the technical research personnel's performance of related research and development duties falls under "when he/she takes a business trip without approval or notification of personal changes" rather than falling under "when he/she takes a business trip without being dispatched" when he/she performs duties in the relevant field at a place other than the designated entity within the scope of management and supervision of the head of the designated entity

[1] Articles 36, 37, 39(3), 40, and 41(1)1 of the Military Service Act, Article 87(1), and 91-3(2) [Attachment 3] of the Enforcement Decree of the Military Service Act / [2] Articles 36, 37, 39(3), 40, and 41(1)1 of the Military Service Act, Articles 87(1), and 91-3(2) [Attachment 3] of the Enforcement Decree of the Military Service Act

[1] Supreme Court Decision 2001Du5583 decided Sep. 6, 2002 (Gong2002Ha, 2436)

[Judgment of the court below]

Seoul Military Manpower Office

Seoul High Court Decision 2001Nu5769 delivered on November 27, 2001

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Articles 41(1)1 and 40 subparag. 2 of the Military Service Act (hereinafter referred to as the "Act") provide that when a person transferred to expert research personnel service fails to serve in the field concerned of the designated enterprise at the time of transfer, etc., the director of the competent regional military manpower office shall cancel such transfer: Provided, That in cases falling under the grounds prescribed by the Presidential Decree, he may serve for an extended period of mandatory service for the period of time without cancelling such transfer as prescribed by the Presidential Decree and for which he does not serve in the field concerned. Article 91-3(1) of the Enforcement Decree of the Act provides that the term "reasons prescribed by the Presidential Decree" in the proviso of Article 41(1) of the Act refers to cases where a person falling under the provisions of subparagraph 2 of Article 40 of the Act has inevitably committed such violation at the order of the head of the designated enterprise, and Article 91-3(2) [Attachment 3] of the Enforcement Decree of the Act provides that the standard for extending the mandatory service period shall be limited to cases where he does not serve in the designated enterprise for more than three months after such transfer or dispatch.

Therefore, in order to be considered as "when a person works for an unaccompanied business entity", when compared to "when a person works for a business entity without approval", it is not sufficient to simply leave the designated business entity. It is reasonable to view that the place of the provision of labor is in fact limited to "temporary placement under the management and supervision of other research institutes or business entities which are not a designated business entity beyond the scope of the management and supervision of the designated business entity," and that it is not subject to approval or notification of personal changes under Articles 39(3), 40, and Article 87(1) of the Enforcement Decree of the Military Service Act.

Upon citing the judgment of the court of first instance, the court below acknowledged the facts as stated in its holding as to the disposition of this case where the plaintiff, who is a technical research personnel on August 14, 200, worked in an officetel for not less than three months in the judgment of the court of first instance on the ground that it had been working in the office room, which is not the Modia Sypt Co., Ltd. (hereinafter referred to as "non-party company"), which is the designated entity, and revoked its incorporation under Article 41 (1) 1 and Article 40 subparagraph 2 of the Act on the ground that the plaintiff worked in the office for not less than three months, as the representative director of the non-party company, and the reasons why the plaintiff had worked in the above office at the place of non-party company's representative director's office and the contents of work engaged in the above office at the non-party company's non-party company's research institute's research institute's research institute's non-party company's research institute's research institute's business operation within the designated entity's scope of management and supervision.

Examining the records, the relevant statutes, and the above legal principles, the judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of laws or regulations.

Therefore, the appeal is dismissed, and the 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 Son Ji-yol (Presiding Justice)