[임명취소처분취소][공2002.4.1.(151),682]
[1] Whether a disposition should consider a party's trust interest in a case where the disposition is cancelled on the grounds that the party's fact was caused by a concealment or other fraudulent act, or that there was a defect caused by the party's filing an application
[2] The case holding that a disposition to revoke the appointment of a senior officer or warrant officer taken by an administrative agency after 33 years from the date of appointment of a senior officer on the ground of a defect in the support of a senior officer in a fraudulent manner to submit a false certificate of high school graduation is lawful
[1] In a case where a disposition is revoked on the ground that there is a defect in an administrative disposition, if the disposition is a disposition that grants rights or interests to the people, the disposition shall be revoked, and the disadvantage suffered by the parties due to the revocation shall be compared to the necessity of the public interest and the disadvantage that the public interest needs to sustain, and then it may be revoked only where it is strong to justify the disadvantages suffered by the parties to the public interest. However, if the defect in the disposition is attributable to the party's filing an application by means of abolition or other fraudulent methods, it shall be deemed that the party was aware that the interest arising from the disposition was illegally acquired, and the possibility of revocation was anticipated. Therefore, it shall not be allowed to invoke the trust interest in the above disposition
[2] The case holding that a disposition to revoke the appointment of a senior officer or warrant officer taken by an administrative agency after 33 years from the date of appointment of a senior officer on the ground of a defect in the support of a senior officer by fraudulent means to submit a false certificate of high school graduation is lawful
[1] Article 4 (2) of the Administrative Procedures Act, Articles 1 [General Administrative Disposition] and 27 of the Administrative Litigation Act / [2] Article 4 (2) of the Administrative Procedures Act, Articles 1 [General Administrative Disposition] and 27 of the Administrative Litigation Act, Article 3 (1) of the former Rules on Appointment of Warrant Officers and Staff Officers (Ordinance No. 49 of the Ministry of National Defense of April 14, 1962), Article 13 subparagraph 1 of the former Enforcement Rule of the Military Personnel Management Act (amended by Ordinance of the Ministry of National Defense of October 27, 1989)
[1] Supreme Court Decision 81Nu67 delivered on July 27, 1982 (Gong1982, 823) 89Nu2189 delivered on February 27, 1990 (Gong1990, 78), Supreme Court Decision 90Nu9520 Delivered on April 12, 1991 (Gong1991, 1390), Supreme Court Decision 90Nu7760 Delivered on August 23, 1991 (Gong1991, 2442), Supreme Court Decision 93Nu18969 delivered on March 22, 1994 (Gong194, 1348), Supreme Court Decision 94Nu4859 delivered on August 23, 1994 (Gong1994, 1348), Supreme Court Decision 94Nu985959 delivered on August 23, 1994 (Gong19659)
Plaintiff
The Minister of National Defense
Seoul High Court Decision 2000Nu15813 delivered on January 31, 200
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
In a case where a disposition is revoked on the ground that there is a defect in an administrative disposition, when the disposition is a disposition that grants the rights or interests to the people, the disposition shall be revoked, if the disposition is a disposition that gives the rights or interests to the people, it shall be compared with the necessity of the public interest to revoke the disposition and the disadvantage to the parties due to its revocation and may be revoked only where it is strong enough to justify the disadvantages the parties' suffering. However, if the defect in the disposition is attributable to the party's act of application through abolition or any other fraudulent means, it shall be deemed that the party was aware that the benefits from the disposition were illegally acquired, and the possibility of revocation was anticipated. Thus, it shall not be abused even if it did not consider not only the trust benefits of the above disposition but also the administrative agency's act of not taking into account it (see, e.g., Supreme Court Decisions 81Nu67, Jul. 27, 1982; 89Nu2189, Feb. 27, 1990; 95Nu190, Oct. 25).
According to the reasoning of the judgment below, even if the plaintiff retired from the ○○ High School, he was found to have failed to meet the above requirements for appointment as warrant officers on December 1, 197, the court below found that the plaintiff did not meet the above requirements for appointment as warrant officers on the ground that he did not meet the requirement for appointment as warrant officers on the ground that the plaintiff did not meet the requirement for appointment as warrant officers on July 4, 1966 by submitting a false certificate of graduation to the Air Force Staff, and applied for the 30th anniversary of his graduation from the ○ High School, and that the plaintiff did not meet the requirement for appointment as warrant officers on June 1, 1973. The court below found that the plaintiff did not meet the requirement for appointment as warrant officers on the ground that the plaintiff did not meet the requirement for appointment as warrant officers on the ground that the plaintiff did not meet the requirement for appointment as warrant officers on the ground that the plaintiff did not meet the requirement for appointment as warrant officers on the ground that the plaintiff was found to have been in force on April 14, 196.
In light of the relevant statutes and the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as to deviation and abuse of discretionary power, as otherwise alleged in the ground of appeal. The grounds of appeal are not acceptable
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 Seo Sung-sung (Presiding Justice)