[2] Meaning of the matters concerning the disposition under the Acts and subordinate statutes concerning personnel affairs of public officials excluded from the application of the Administrative Procedures Act, and whether such a legal principle also applies to the expulsion from school against students of the Korea Army Academy at Army (affirmative)

[3] In a case where an attorney-at-law appointed by a person subject to disciplinary deliberation as his/her agent in a disciplinary procedure on the cadets of the Korea Army Academy at Army prevents him/her from attending the deliberation of the disciplinary committee and making statements, whether the disciplinary action should be revoked unlawfully (affirmative in principle) and in exceptional cases

[2] In light of the legislative purpose of the Administrative Procedures Act, including Article 3(2) of the Administrative Procedures Act and Article 2 of the Enforcement Decree of the Administrative Procedures Act, which aims to ensure fairness, transparency, and reliability of administration and protect the rights and interests of the people, matters concerning dispositions under the Acts and subordinate statutes related to personnel affairs of public officials excluded from the application of the Administrative Procedures Act refer only to a disposition that is deemed difficult or unnecessary to undergo administrative procedures due to its nature or that is subject to procedures equivalent to administrative procedures, or that is subject to procedures corresponding to administrative procedures. This legal doctrine applies likewise to expulsion from school of Korea, which falls under the “disposition under the Acts and subordinate statutes related to personnel affairs of public officials,” and Article 2 subparag. 8 of the Enforcement Decree of the Administrative Procedures Act excludes “matters involving students and trainees to achieve the purpose of education and training in schools, training institutes, etc.,” but this is deemed to refer to matters directly conducted in order to achieve the purpose of education and training, such as detailed determination of curriculum and contents, imposition of tasks, evaluation of grade, and official disciplinary action against students.

[3] Although an attorney-at-law appointed by the person subject to disciplinary deliberation as his/her agent in the disciplinary procedure on military cadets of the Korea Army Academy at Disciplinary Action, if the person subject to disciplinary deliberation or his/her employee was prevented from attending the deliberation of the disciplinary committee, procedural legitimacy of the deliberation and resolution of the disciplinary committee shall be lost, and disciplinary action following the disciplinary action shall be revoked in principle as a matter of principle: Provided, That in special circumstances where a person subject to disciplinary deliberation cannot be deemed to substantially impede the exercise of the right to defense of the person subject to disciplinary deliberation due to the procedure of investigating actual evidence and stating his/her opinion in the administrative procedure or litigation procedure related to the representative of the person subject to disciplinary deliberation, even if the person subject to disciplinary action did not give his/her agent an opportunity to make a statement

1. On the assertion that there is a defect in the disciplinary procedure by refusing an attorney-at-law to appear and state his opinion

A. (1) Under Article 21(1) of the Administrative Procedures Act, where an administrative agency imposes a duty on a party or imposes a restriction on his/her rights and interests, the Administrative Procedures Act provides that the content and legal basis of the disposition may be submitted, and other necessary matters shall be notified to the parties concerned, etc. In such a case, Article 22(3) provides that an administrative agency shall provide the parties, etc. with an opportunity to present their opinions, except where a hearing is held or a public hearing is held when rendering the above disposition. The aforementioned provisions aim at providing the parties, etc. with an opportunity to present their opinions or materials by providing appropriate notice prior to taking unfavorable measures in accordance with the principle of due process under the Constitution. To the same purport, Article 11(2) of the Decree on Disciplinary Measures against Public Officials, Article 10(2) of the Decree on Disciplinary Measures against Military Personnel, Article 28 of the Regulations on the Korea Military Academy of Military Academy, Article 95 subparag. 2(a) of the Administrative Rules on Military cadets, etc. guarantee the opportunity for deliberation to attend the disciplinary agency and state

Nevertheless, in a case where an administrative agency did not give the above prior notice or give the parties an opportunity to present their opinions while making an infringing administrative disposition, the administrative agency may not avoid revocation due to its illegality unless it does not give such prior notice or does not constitute exceptional cases where it does not give an opportunity to present opinions (see Supreme Court Decision 2006Du20631, Sept. 21, 2007).

(2) According to Articles 12(1)3 and 12(2) and the main sentence of Article 11(4) of the Administrative Procedures Act, the parties, etc. may appoint a lawyer as their agent, and an attorney-at-law appointed as his/her agent may perform all acts relating to administrative procedures on behalf of the parties, etc. In light of the aforementioned provisions and purport of the Administrative Procedures Act and subordinate statutes, it is necessary to guarantee a person subject to disciplinary deliberation through an attorney-at-law to exercise his/her right to defense in unfavorable disposition procedures such as disciplinary action in light of the principle of a constitutional state and the principle of due process of law under the Constitution. If an attorney-at-law appointed by the person subject to disciplinary deliberation attends the Disciplinary Committee and

(3) In light of the legislative purpose of the Administrative Procedures Act, including Article 3(2) of the Administrative Procedures Act and Article 2 of the Enforcement Decree of the Administrative Procedures Act, which aims to ensure fairness, transparency, and reliability in administration and protect the rights and interests of the people, matters concerning dispositions under the Acts and subordinate statutes related to personnel affairs of public officials excluded from the application of the Administrative Procedures Act refer only to a disposition that is deemed difficult or unnecessary to undergo administrative procedures due to its nature, or a disposition that is subject to procedures equivalent to administrative procedures (see Supreme Court Decision 2011Du30687, Jan. 16, 2013). Such legal principle also applies to expulsion from office against students of the Korea Army Academy at Army, which falls under the “disposition under the Acts and subordinate statutes related to personnel affairs of public officials,” and Article 2 subparag. 8 of the Enforcement Decree of the Administrative Procedures Act provides that “matters subject to education and training are excluded from the application of the Administrative Procedures Act to achieve the purpose of education and training at schools, training institutes, etc., but this cannot be deemed as an education and training directly conducted.

(4) In regard to disciplinary action against military cadets of the Korea Army Academy at Army, the Enforcement Decree of the Act on the Establishment of the Korea Army Academy at Army, the Regulations on the Regulations on the Regulations of the Korea Army at Army at Army, and the Regulations on the Administrative Rules on Military cadets, the provisions of Chapter X of the Military Personnel Management Act regarding disciplinary action against military personnel are specifically stipulated different from those of Chapter X of the Military Personnel Management Act, which takes into account the characteristics of school life and the status of military cadets. Thus, there is no room to directly apply Chapter X of the Military Personnel Management Act.

Meanwhile, Article 14(1) of the Ministry of National Defense’s Directive on Disciplinary Measures against Military Personnel and Civilian Personnel in Military Service (hereinafter “Regulation on Disciplinary Measures against the Ministry of National Defense”) provides that “A person subject to disciplinary measures may appoint a lawyer or a person with knowledge and experience as his/her agent and allow him/her to make a supplementary statement and submit evidence on a disciplinary case,” which is already guaranteed by the Administrative Procedures Act, shall be deemed as a confirmatory and reasonable provision so that a person with military

Therefore, even though Article 14(1) of the Ministry of National Defense’s Disciplinary Directive does not directly apply to the disciplinary procedure on military cadets of the Korea Army Academy at Army, this does not mean that the right to exercise the right to defense by appointing an attorney as an agent is denied in the disciplinary procedure on military cadets of the Korea Army Academy at Army, and an attorney’s representative should be allowed in accordance with Article 12(1)3 and (2) and the main sentence of Article 11(4) of the Administrative Procedures Act.

(5) Therefore, even though an attorney-at-law appointed by the person subject to disciplinary deliberation as his/her agent in the disciplinary procedure on military cadets of the Korea Army Academy at Army, if the person subject to disciplinary deliberation or his/her employee was prevented from attending the deliberation of the disciplinary committee, procedural justification for the deliberation and resolution of the disciplinary committee shall be lost, and disciplinary action following the disciplinary resolution shall be revoked in principle. However, in special circumstances where a person subject to disciplinary deliberation cannot be deemed to substantially impede the exercise of the right to defense of the person subject to disciplinary deliberation due to the procedure of investigating actual evidence and stating opinions in the administrative procedure or litigation related to the representative of the person subject to disciplinary deliberation, even if the person subject to disciplinary deliberation did not provide his/her agent with an opportunity to make a statement, the disciplinary action shall not be revoked, as

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On February 17, 2014, the Plaintiff was a cadets admitted to the Korea Army Academy at Army. From around April 2014 to August 24, 2014, the Plaintiff submitted them to the disciplinary procedure on the ground that he/she committed various abusive acts, abusive acts, abusive acts, personal humiliation, and violation of gender military discipline (hereinafter “instant misconduct”). The Defendant, upon deliberation and resolution at two stages of deliberation and resolution by the Committee on Symnasium and the Steering Committee for School Education under Article 95 subparag. 1(c) of the Regulations on the Administration of Military cadets at the Korea Army Academy at Army, was expelled from the Plaintiff on August 24, 2014 (hereinafter “previous disposition”).

(2) The Plaintiff, as his/her legal representative, appointed a law firm and ABL (the Nonparty, the law firm in charge, and the attorney-at-law, and expressed only the Plaintiff’s legal representative) to file a lawsuit seeking revocation of the previous disposition. On March 25, 2015, the above court rendered a judgment revoking the previous disposition on the ground that “the grounds for disciplinary action are recognized most, and there is no deviation or abuse of discretion, nor any other procedural defect, but the previous disposition is unlawful on the ground that there is a defect in the issuance of a written disciplinary action,” and the above judgment became final and conclusive around that time.

(3) In order to take a new disciplinary measure against the Plaintiff by supplementing procedural defects in accordance with the purport of the previous judgment, on April 15, 2015, the Chairperson of the Korea Army Academy at Army established at Army, notified the Plaintiff that he/she would appear at the deliberation of the Gido Land Committee held on April 10, 2015, by issuing a notice of attendance (Evidence A) to the Plaintiff on April 15, 2015. On April 20, 2015, the Plaintiff’s legal representative arrived at the Korea Army Academy at the Korea Army Academy at Army established on April 10, 200, and requested the permission to access the said Gido Land Committee to attend the deliberation. However, the Plaintiff’s legal representative was refused to enter the Kido Land Academy at the Korea Army Academy established on March 10, 2015, but only the Plaintiff himself/herself appeared and made a statement.

(4) On April 23, 2015, the Plaintiff’s legal representative asked the Plaintiff’s legal representative to attend the school education management committee and presented a written request to the Plaintiff’s legal representative. However, on May 6, 2015, the legal representative of the Korea Army Academy at Army sent the Plaintiff’s legal representative a reply to the effect that “the provision of Article 14 of the Ministry of National Defense Disciplinary Directive, Article 12(2), 12(1)3, and 11(4) of the Administrative Procedures Act does not apply to expulsion from military cadets, and the school education management committee does not allow the Plaintiff’s legal representative or parent’s right to participate in the school education management committee on May 21, 2015, on the ground that there is no provision recognizing the person subject to disciplinary action’s legal representative or parent’s right to participate in the school education management committee’s deliberation.” The Defendant was expelled from school on May 28, 2015.

C. (1) Examining the above facts in accordance with the legal principles as seen earlier, the Defendant or his employee did not specifically examine whether the Plaintiff’s legal representative has legitimate authority to act on behalf of the Plaintiff, and whether the Plaintiff’s request for permission of access complies with the relevant statutory procedures, and did not err by refusing the Plaintiff’s legal representative’s participation in the deliberation of the Disciplinary Committee on the grounds that there is no provision allowing the agent to act on behalf of the Plaintiff.

(2) However, the purport of this case is to guarantee the exercise of the right of defense by appointing an attorney-at-law and present for him. In this case, the plaintiff appointed an attorney-at-law as a legal representative and filed a lawsuit seeking revocation of the previous disposition. The court of the lawsuit rendered a judgment revoking the previous disposition on the ground that "the grounds for disciplinary action are recognized, and there is no deviation or abuse of discretion, nor any defect in issuing a written disciplinary action," through the examination of the witness, etc., on the grounds that "the previous disposition is unlawful." After the above judgment becomes final and conclusive, the defendant held the Gido Jin-hun and the School Education Steering Committee for the same disciplinary cause to supplement the procedural defects of the plaintiff in order to take a new disciplinary action in accordance with the purport of the previous judgment. Considering that the failure of the plaintiff's legal representative to allow a deliberation of the disciplinary committee on the re-disposition procedure would impede the plaintiff's exercise of the plaintiff's right of defense, which would result in the loss of procedural legitimacy of the procedure of re-disposition, i.e., revocation of the expulsion of this case and new disciplinary procedure.

(3) The lower court determined that the provisions of Articles 12(1)3 and (2) and 11(4) of the Administrative Procedures Act concerning the appointment of an agent do not apply to a disciplinary procedure against the third-class student of the Army Academy in the Military Personnel Management Act, on the grounds that Article 14 of the Disciplinary Directive of the Ministry of National Defense, which is a subordinate provision to Chapter X of the Military Personnel Management Act, does not apply to a disciplinary procedure. ② Article 3(2)9 of the Administrative Procedures Act and Article 2(8) of the Enforcement Decree of the Administrative Procedures Act provide that the Administrative Procedures Act shall not apply to matters involving students, trainees, etc. in order to achieve the purpose of education and training at schools, training institutes, etc.

2. As to the assertion that there is a defect in disciplinary proceedings because specific suspicions are not stated in the notice of attendance of the disciplinary committee

According to Article 95 subparag. 2 (a) of the Administrative Rules on Disciplines, the lower court determined that the reason for appearance is sufficient to be specified to the extent that a person suspected of disciplinary action is unlikely to exercise his/her right of defense, such as proving that he/she was referred to a disciplinary action for any reason, and that the person subject to disciplinary action is able to exercise his/her right of defense prior to the disciplinary action by having the person subject to disciplinary action informed of whether he/she was referred to the disciplinary action for such reason, and that the reason for appearance is sufficient to be specified to the extent that it does not interfere with the exercise of his/her right of defense. On April 15, 2015, the lower court determined that “The person subject to the disciplinary action who was held on April 20, 2015 (Evidence No. 7) was sufficiently stated in the attendance notice issued to the Plaintiff at the time of the previous disciplinary action, and that the previous disciplinary action disposition should be deemed to have been issued to the Plaintiff on the grounds that he/she did not exercise his/her right of defense.”

Examining the record in accordance with the relevant legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on the issuance of the summons for attendance.

3. As to the assertion that the grounds for disciplinary action added after deliberation and resolution by the Biodiversity Disciplinary Committee cannot be subject to the instant disciplinary action, since they did not undergo deliberation and resolution by the Biodiversity Disciplinary Committee

The lower court determined as follows: (a) the content of the act of misconduct as stated in the letter of disposition (Evidence (Evidence (Evidence (No. 9) prepared by the Life Prevention and Security Council on April 21, 2015 after deliberation and resolution by the Life Prevention and Security Commission is merely more concrete than the corresponding part of the grounds for disciplinary action recognized in the previous disposition or the previous judgment; and (b) it cannot be deemed that the grounds for disciplinary action which was not subject to deliberation and resolution by the Life Prevention and Security Commission were added.

Examining the record, the lower court did not err by misapprehending the aforementioned judgment or by misapprehending the legal doctrine on the identity of the grounds for disciplinary action.

4. As to the assertion of deviation from and abuse of disciplinary discretion

The lower court determined that the instant disciplinary measure against the Plaintiff cannot be deemed as a deviation from or abuse of the authority to impose disciplinary discretion, on the grounds that it is difficult to view the instant disciplinary measure as a mere agricultural fence or dispute in light of the form, content, and degree of the relevant act, and that the degree of the relevant misconduct is not weak, and that more strict standards should be applied to military cadets who shall command soldiers as a future officer than general soldiers.

Examining the record, the lower court did not err in its judgment by misapprehending the legal doctrine on deviation and abuse of discretion.

5. Conclusion

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.

Justices Min You-sook (Presiding Justice)