2. Litigation costs shall be borne by the plaintiff.

On July 27, 2006, the Plaintiff: (a) as a civilian, induced North Korean direct strike B residing in the Philippines upon the request of the National Intelligence Service on January 2006; and (b) as a result, B was arrested on July 31, 2006 to the employees of the National Intelligence Service. However, the relevant public officials of the National Intelligence Service, who did not have any particular merit, were awarded a decoration on December 12 of the same year; (b) while the Plaintiff did not receive any reward even having contributed to the arrest of B.

Therefore, the defendant has the duty to cancel the orders for relevant public officials and, instead, to award the orders to the plaintiff.

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

The part against the Plaintiff seeking the award of an order against the Defendant constitutes an action for performance of obligations not permitted under the Administrative Litigation Act and is thus unlawful.

Since the President’s award of orders and other honors in accordance with the Constitution and the Awards and Decorations Act is a state action with high political nature, the Plaintiff’s right to request the award of orders is unlawful since there is no legal or sound application for the award of orders.

The plaintiff not only received official commendation from the Director of the National Intelligence Service as a result of cooperation in the arrest of a counter-espionage, but also revoked orders, etc. awarded to the employees of the National Intelligence Service, but also cannot be awarded orders, etc. to the plaintiff. Thus, the plaintiff is not a person having legal interest in seeking revocation of the disposition against the employees

In addition, the recommendation and cancellation of decoration are conducted by the head of each central administrative agency, and the defendant is only responsible for the affairs to be presented to the State Council by combining the persons recommended by each ministry with them. Therefore, the defendant cannot seek cancellation of the disposition against the defendant.

The instant lawsuit is unlawful on the grounds that the Plaintiff’s disposition of awarding the order was made on December 20, 2007, and thus, the period for filing the lawsuit is excessive.

B. Relevant statutes

Constitution

Article 80 (Certificated Succession Passports) The President shall award orders and other honors under the conditions as prescribed by Act.

Awards and Decorations Act

Article 2 (Principles of Decoration) The Order of Merit and Merit of the Republic of Korea (hereinafter referred to as the "Order": Provided, That this shall not apply in Articles 9 through 27) shall be conferred upon a national of the Republic of Korea or a honorary national who has rendered outstanding meritorious services in the Republic of Korea.

Article 3 (Standards for Decoration) The standards for decoration shall be determined in consideration of the meritorious contents of a person subject to decoration, the degree of effects on the conclusion of his/her meritorious service on the national society, status, and other matters.

제5조(서훈의 추천) ① 서훈의 추천은 중앙행정기관의 장(대통령직속기관 및 국무총리직속기관의 장을 포함한다), 국회사무총장, 법원행정처장, 헌법재판소사무처장 및 중앙선거관리위원회 사무총장이 행한다.

(2) The Minister of Public Administration and Security shall recommend a decoration which does not fall under the jurisdiction of the person with recommendation authority under paragraph (1).

(3) The recommendation for decoration shall undergo an examination of merit, as prescribed by Presidential Decree.

Article 7 (Determination of Decoration) Any person subject to decoration shall be determined by the President after deliberation by the State Council.

Article 8 (Cancellation, etc. of Decoration) (1) If a person who has received an decoration falls under any of the following subparagraphs, the relevant decoration shall be cancelled, and the goods and money given in connection with the decoration shall be recovered, and any foreign decoration shall be prohibited from wearing it:

1. Where it is found that the relevant decoration is false;

2. Where he/she is sentenced to punishment or flees to an enemy country as a person who commits a crime on national security;

3. Where he/she is sentenced to death penalty, life imprisonment, or imprisonment with or without prison labor for not less than three years for committing a crime provided for in the Customs Act or the Punishment of Tax Evaders Act (excluding Articles 115, 117, 171, and 268);

(3) Where a person who has received a decoration falls under any of the subparagraphs of paragraph (1), the Minister of Public Administration and Security shall submit to the State Council a bill on the revocation of the decoration. In such cases, the head of the Chungcheong administrative agency, etc. under Article 5 who recommended the relevant decoration may request the Minister of Public Administration and Security to submit a bill on the revocation of the decoration to the State Council

C. Determination

First of all, we examine the part regarding the Plaintiff’s claim against the Defendant among the instant suit.

Article 3 of the Administrative Litigation Act recognizes an appeal litigation, party litigation, civil suit and agency litigation as a type of administrative litigation, and does not separately recognize a lawsuit for performance of obligations (Article 5 subparag. 3 of the Administrative Appeals Act provides for adjudication on performance of obligations). Of the lawsuit in this case, the part seeking the awarding of an order against the defendant among the lawsuits in this case constitutes a lawsuit for performance of obligations that seeks a certain disposition against the omission of an administrative agency, and thus, is unlawful (Article 4 of the Administrative Litigation Act provides that the plaintiff's lawsuit seeking the awarding of an order against the employees of the National Intelligence Service is unlawful (Article 4 of the Administrative Litigation Act provides that the plaintiff's lawsuit seeking the cancellation of an order and the plaintiff's claim for the awarding of an order is a lawsuit seeking the alteration of a disposition, but it does not include the alteration of the meaning that the alteration of disposition in Article 4 of the Administrative Litigation Act means the reduction of disposition or the revocation

Next, I examine the part of the instant lawsuit seeking the revocation of awarding orders to the public officials related to the National Intelligence Service.

Above all, Article 13 of the Administrative Litigation Act provides that an administrative agency which has rendered a disposition, etc. of revocation lawsuit shall be the defendant unless otherwise provided for in other Acts. Article 80 of the Constitution provides that "the President shall award a decoration or other medal under the conditions as prescribed by the Act." Article 7 of the Awards and Decorations Act provides that a person who has received a decoration shall be subject to deliberation by the State Council after deliberation by the State Council, and Article 8 of the Awards and Decorations Act provides that a person who has received a decoration shall submit a bill concerning the revocation of decoration to the State Council when a cause falling under any of the subparagraphs of paragraph (1) occurs. In light of the above, it is obvious that a decoration is the authority of the President who is not the defendant, and thus, the lawsuit of this case against the defendant is unlawful.

In addition, Article 12 of the Administrative Litigation Act provides that a suit for revocation may be instituted by a person who has a legal interest in seeking the revocation of a disposition. The President’s granting an order or any other medal to a person subject to decoration pursuant to the above Constitution and the Awards and Decorations Act is a state action with a highly political nature that serves as the head of the State, and whether the decoration is determined independently by the President, subject to deliberation by the State Council at his own discretion, so it is difficult to view that there is a legal interest in seeking the revocation of the decoration, etc.

Therefore, without further review, the instant lawsuit can be seen as unlawful.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

Judges Kim Yong-sik

Judges Lee Jae-in