[2] The standard period for determining the illegality of a disposition in an appeal litigation (=the time of disposition) and whether the same applies to the case of a disposition based on an application (affirmative)

[3] In a case where an appeal suit under the Administrative Litigation Act was filed by mistake as a civil suit, but the court of the lawsuit has jurisdiction over an appeal suit at the same time, whether the plaintiff shall be examined and determined in accordance with the procedure prescribed by the Administrative Litigation Act by exercising the right of explanation so that the lawsuit can be changed into an appeal suit (affirmative

[4] The legal nature of the issuance and refusal of a certificate of research and development in accordance with the directives on the development of national defense power (=administrative disposition)

[5] In a case where a developer has successfully performed a research and development project based on the power support system, whether the developer has the right to demand a free contract for the pertinent item (negative)

[2] In an appeal litigation, the determination of illegality of a disposition ought to be made at the time of the disposition, barring special circumstances. The same applies to a disposition based on an application. Unless otherwise stipulated in the transitional provisions of the newly amended Act and subordinate statutes, determination of whether to issue a disposition in accordance with the amended Act and subordinate statutes in force at the time of the disposition should be made, and in relation to the application of such amended Act and subordinate statutes, there is room for limiting the application in order to protect the public’s trust in the existence of the previous Act and subordinate statutes in cases where the public’s trust in the application of the amended Act and subordinate statutes

[3] In a case where a suit should be filed as an appeal suit under the Administrative Litigation Act is erroneous, if the court of the suit has jurisdiction over the appeal suit at the same time, it shall be examined and determined in accordance with the procedure under the Administrative Litigation Act by exercising the right of explanation by the plaintiff to make a change in the suit through an appeal suit, unless it is found improper even if the suit is filed as an appeal suit because it is obvious that the suit did not meet the requirements of the lawsuit as an appeal suit, such as without going through the prior trial procedure, or intending to set the period

[4] The issuance of a certificate of confirmation of research and development pursuant to Article 113-5(1) of the National Defense Power Development Business Directive constitutes a "a confirmative administrative act," which is an exercise of public authority, and constitutes a "disposition refusing to issue a certificate of research and development," which is a refusal to issue a certificate of confirmation of research and development, where a development company has successfully implemented a power support system research and development project by means of "business investment research and development" or "government-owned joint investment and development project, and a national defense standard is enacted or amended by a project management agency after being determined as appropriate for military use.

[5] Whether or not to procure any munitions, or the quantity and time thereof may be determined flexibly according to the order of priority in the distribution of the defense budget or the requirements for munitions requested by the Army, Navy, and Air Force (hereinafter “each service”). Thus, unless otherwise specifically provided in the relevant statutes or regulations, the Administrator of the Defense Acquisition Program Administration or each service has a broad discretion in the procurement of munitions. This is because the National Defense Power Development Business Directive does not stipulate that the items for which the national defense standard has been enacted or amended after the completion of research and development by the company investment research and development method or by the government, company, joint investment and development method, and the evaluation of the suitability for military use should be completed, or that the national defense standard should be concluded by a free contract for the items for which the national defense standard has been enacted or amended. Accordingly, even if the development company has successfully implemented the power support system,

Even so, since the determination of whether to issue a certificate of research and development by a business management agency is a separate confirmative administrative act that is conducted before a private contract is concluded, if the development company satisfies the requirements for issuance prescribed in Article 113-5(1) of the Directive on the Business of the Development of National Defense Power, it shall issue a certificate of research and development, and it shall not be refused to issue a certificate of research and development solely on the ground that the relevant item is not allocated with the relevant national defense budget or that the relevant item is anticipated not to enter into a private contract immediately due to being closely

1. Case history

According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

A. The △△△△△△△ Headquarters established a project plan that, around 2013, ① included a total of KRW 94 million from 2013 to 2016, in which cooking equipment modernized in 9.5t Truck can be loaded and operated in a single unit, and that, following operational test, evaluation, etc. (hereinafter “research and development”) (hereinafter “research and development”). ② From 2016 to 2021, 189 units (sumed unit cost acquisition KRW 328,00,000 per expected unit and total of KRW 62,00,000 in the expected budget”) were distributed to the former combat unit (hereinafter “consansan”).

B. On November 7, 2013, the Chief of the Armed Forces published a competitive bid for the part of the pertinent project plan, along with the “written request for proposal” prepared by the △△△△△△△△△ Bureau, which is a business management agency, and assessed the proposals of each company participating in the bidding, and selected the Plaintiff as a developer. The Chief of the Armed Forces entered into the instant service contract with the Plaintiff on December 18, 2013. According to that, the relevant research and development was carried out in the manner of “government-invested research and development,” the relevant research and development was carried out in the manner of “government-invested research and development,” the contract amount of one won (one won out of the total expenses required for the research and development by the Plaintiff is paid by the ○○○○△△△△△△△△△△△△△△△△ Bureau, and the contract period is from December 18, 2013 to November 30,

C. In accordance with the instant service contract, the Plaintiff developed a prototype of the mobile cooking equipment around August 2016, and obtained a judgment of appropriateness for military use on October 14, 2016 through a force support system test and evaluation. On November 15, 2016, national defense standards (Standardization) was established regarding the mobile cooking equipment. On December 2, 2016, the Plaintiff was finally notified by ○○ Chief of Staff of the completion of government research and development projects for the mobile cooking equipment.

D. Since then, the Plaintiff filed an application with the △△△△△△△△△△△ Bureau for the issuance of a certificate of research and development of the same type of cooking equipment developed in accordance with the instant service contract pursuant to Article 114-2(1) of the former Directive on the Development of Military Power (amended by Ministry of National Defense Directive No. 1388, Feb. 3, 2012; hereinafter the same shall apply) to the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was enforced at the time of the enactment of the national defense standard for cooking equipment, on the ground that the research and development confirmation cannot be issued for the items developed in the way of government investment research and development pursuant to Article 113-5(1) of the current Act, which was in force at the time of the enactment of the national defense standard for the same type of cooking equipment.

E. On June 12, 2018, the Plaintiff filed the instant lawsuit with the Daejeon District Court claiming that “the Defendant shall comply with the procedures for issuing a certificate of research and development under Article 114-2(1) of the former Guidelines on the Development of Military Power in accordance with the instant service contract against the Defendant, the legal entity of which the head of ○○○ Headquarters and △△△△△△△△△△ Headquarters belongs.”

2. The parties' assertion, the first instance court and the lower court's determination

A. According to Article 3 of the special terms and conditions of the instant service contract, the Plaintiff’s request for proposal prepared by △△△△△△△△△△△ Group has the validity of a contract as a part of the contract. The proposal was incorporated into the content of the instant service contract by clearly stating the official instructions on the development of the military power. Therefore, the Defendant asserted that the Defendant is obligated to implement the procedures for issuing research and development certificates to the Plaintiff pursuant to Article 114-2(1) of the former Guidelines on the Development of the Military Power. Accordingly, the Defendant cannot be deemed to be incorporated into the content of the instant service contract, and even if assumed, the instant service contract was carried out by the “government-invested Research and Development” method, and thus, the Defendant asserted that the issuance of research and development certificates is impossible even pursuant to Article 114-2(

B. The first instance court (Seoul District Court) rendered a judgment dismissing the Plaintiff’s claim on the grounds that it is difficult to deem that both parties agree to include Article 114-2 of the former Directive on the Development of Military Power into the content of the instant service agreement. The lower court rendered a judgment dismissing the Plaintiff’s appeal on the same ground. The lower court rendered a judgment dismissing the Plaintiff’s appeal on the same ground.

3. Judgment of the Supreme Court

A. Relevant legal principles

(1) The term “disposition”, which is the subject of an appeal litigation, means “the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions” (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be the subject of an appeal litigation cannot be determined abstractly and generally. In specific cases, the determination should be based on the content and purport of relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, and the attitude of the administrative agency or interested parties related to the act (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010). In addition, whether any disposition has legal basis, and whether the procedure of disposition prescribed by the Administrative Procedures Act complies with the pertinent disposition is not an element to be considered in the stage of determining whether the pertinent disposition is legitimate, and the requirement of litigation is not an element at the examination (see Supreme Court Decision 6017Du666.

(2) In an appeal litigation, the determination of illegality of a disposition ought to be made at the time of the relevant disposition, barring any special circumstances. The same applies to a disposition based on an application (see, e.g., Supreme Court Decision 2014Du37122, Apr. 7, 2017). Unless otherwise stipulated in the transitional provisions of the newly amended Act and subordinate statutes, determination of whether to issue a disposition based on an application in accordance with the amended Act and subordinate statutes implemented at the time of the disposition should be based on the standards set forth therein. In relation to the application of such amended Act and subordinate statutes, there is room for limiting the application in order to protect public trust in cases where the public trust in the continuation of the statutes prior to the amendment is deemed more worthy of protection than the demand for public interest in the application of the amended Act and subordinate statutes (see, e.g., Supreme Court Decision 2003Du35

(3) In a case where a suit should be filed as an appeal suit under the Administrative Litigation Act is erroneous, and the court of the lawsuit has jurisdiction over the appeal suit, if the suit has jurisdiction over the appeal suit at the same time, it shall be examined and determined in accordance with the procedure prescribed by the Administrative Litigation Act by exercising the right of explanation by the plaintiff to make a change in the suit through an appeal suit, so long as it is obvious that the suit did not meet the requirements for an appeal suit as an appeal suit, such as without going through the prior trial procedure or with the lapse of the period of filing a suit, and thus, it is not illegal or inappropriate (see Supreme Court Decision 97Da4250, Nov. 26, 199

B. Relevant statutes and regulations applicable at the time of the rejection of the instant case provide for the issuance of a certificate of research and development of the power support system as follows.

(1) According to the Defense Acquisition Program Act, “military supplies” refers to materials acquired to be used and managed by the Ministry of National Defense and military units or organizations under the direct control of the Ministry, or agencies under the direct control of the Ministry, or army, sea, and air force, and classified into weapons systems and force support systems, and “electric support systems” refers to all the elements, such as equipment, parts, facilities, software, and other articles, other than weapons systems (Article 3 subparag. 2 and subparag. 4). The Administrator of the Defense Acquisition Program Administration formulates a plan for planned procurement of munitions pursuant to the guidelines of the Minister of National Defense and then procure munitions accordingly (Article 25(1)). The Administrator of the Defense Acquisition Program Administration may directly procure or purchase munitions at the request of the Agency for the efficient execution of the defense budget as prescribed by Presidential Decree (Article 25(2)). The Administrator of the Defense Acquisition Program Administration shall formulate a plan for the standardization of munitions in order to obtain munitions efficiently (Article 26(1)); the designation or revocation of standard items in accordance with the formulated plan, and shall be determined by Presidential Decree.

(2) According to the Enforcement Decree of the Defense Acquisition Program Act according to the delegation, when the Administrator of the Defense Acquisition Program Administration intends to designate a standard article of munitions, he/she shall consider the “ appropriateness of the purchase requirements of each service of the Armed Forces and the necessity for the designation of standard article”, “the economic feasibility of the relevant munitions,” “the fulfillment of support elements for military force,” “do utilization in the civilian and military sector,” and “the connection with the munitions in use”. In such cases, the standard article shall be designated upon the opinions of the respective armed forces with respect to the power support system acquired by purchase, but the standard article shall be designated for the items of the power support system acquired by research and development as requested by the Ministry of National Defense or each armed force (Article 30(2)). Accordingly, matters necessary for the research and development

(3) According to the Defense Acquisition Program Act, the Enforcement Decree of the said Act, matters delegated by the Enforcement Rule of the said Act, and matters necessary for the enforcement thereof, and the “Guidance on Military Power Development Business” established by the Minister of National Defense for the purpose of providing the basic procedures and guidelines for the affairs related to the power lecture, including the requirements, acquisition, operation, and maintenance of weapons systems and the power support system, research and development of the power support system shall be classified into government-invested research and development that the Government bears research and development costs; government-invested research and development projects that the enterprise bears research and development costs; government-invested research and development jointly borne by the Ministry of National Defense (or other government departments) and government-invested enterprises that jointly bear research and development costs by industrial, academic, and research circles; government-joint cooperation projects jointly shared by the Ministry

Research and development projects of the power support system are implemented through the process of preparing a written request for proposal by the project management agency, announcing a tender, receiving and evaluating proposals, concluding research and development contracts, design review, system development, test and evaluation, conformity assessment, specification and listing, issuance of certificates of research and development (Article 112(2)).

A business management agency shall issue a certificate of research and development without delay where the items of business investment, research and development, and items of joint investment and development by the Government, enterprises, and joint investment and development are determined to be suitable for military use, and the standards are determined or amended: Provided, That in the case of a government-invested research and development project, whether the project is closed shall be determined by the official text of the business management agency (Article 113-5(1)). Upon issuing a certificate of research and development, the business management agency shall notify the developer, the requisite group, the Defense Acquisition Program Administration, the Agency for Technology and Technology, and the Agency for Defense Development (Article 113-5(2)). In the case of a business investment and joint investment and development by the Government, the head of the contracting agency may procure a certificate of research and development under the Enforcement Decree of the Act on Contracts to which the State is a Party, and the period of free contract shall be five years after the completion of the development,

Where the existing development enterprise intends to convert the business performed by the existing development enterprise into another enterprise with respect to the item under a negotiated contract with the certificate of research and development or the business that is anticipated to be qualified as a negotiated contract after the issuance of a certificate of research and development in accordance with the relevant provisions, such as the National Defense Power Development Business Directive, etc., in the course of the trade of the government and the enterprise-invested research and development and the enterprise-invested research and development enterprise, the existing development enterprise may file an application for approval of transfer of business rights with the Ministry of National Defense and obtain approval of transfer (Article 115).

(4) Meanwhile, pursuant to the Act on Contracts to Which the State is a Party, the head of a central government agency or a contracting officer of a contracting agency intends to conclude a contract to which the State is a party, in principle, refers to general competition. However, if deemed necessary in light of the purpose, nature, size, etc. of the contract, the eligibility to participate in the contract may be restricted, or the participants may be designated to participate in the competition, or a negotiated contract may be concluded, as prescribed by Presidential Decree (Article 7(1)). According to the Enforcement Decree of the Act on Contracts to which the State is a Party upon delegation, the Administrator of the Defense Acquisition Program Administration may enter into a free contract in cases where he/she manufactures or purchases military standard goods from a research and development company (Article

C. We examine the contents and structure of relevant provisions in light of the aforementioned legal principles.

(1) The issuance of a certificate of confirmation of research and development pursuant to Article 113-5(1) of the National Defense Power Development Business Directive constitutes a "a confirmative administrative act," which is an exercise of public authority, and constitutes a "disposition refusing to issue a certificate of research and development," which is a refusal to issue a certificate of confirmation of research and development, where a developer has successfully implemented a power-support system research and development project by means of "business investment research and development" or "government-owned joint investment and development project, and a national defense standard is enacted or amended by a project management agency, without filing a competitive tender with the developer in relation to the mass production of the pertinent product.

(2) Meanwhile, as to the procurement of munitions, the allocation of the defense budget or the order of priority in the requirements for munitions requested by the respective armed forces may be determined flexibly, barring special provisions in the relevant statutes or regulations, the Administrator of the Defense Acquisition Program Administration or each armed force have broad discretion on the procurement of munitions. This is because the National Defense Power Development Business Directive does not stipulate that the items whose national defense standard has been enacted or amended after the completion of research and development by a company-investment research and development method or by a government-invested joint investment research and development method and the evaluation of the suitability for military use should be distributed in quantity or that they should enter into a free contract. Accordingly, even if the development company successfully implemented the power research and development support system, it does not always have the right to request the conclusion of a free contract for the pertinent items.

(3) Even so, since the determination of whether to issue a certificate of research and development by a business management authority is a separate confirmative administrative act that is conducted prior to the conclusion of a private contract, a development business entity must issue a certificate of research and development if it satisfies the requirements for issuance stipulated in Article 113-5(1) of the Directive on the Business of the Development of National Defense Power, and should not refuse to issue a certificate of research and development solely on the ground that the pertinent item is not allocated with the relevant national defense budget or that the pertinent item is anticipated not to enter into a private contract immediately from the priority of mass production

D. We examine the above facts in light of the above legal principles.

(1) Since the instant refusal constitutes a rejection disposition against the Plaintiff’s application for the issuance of a certificate of research and development against the Plaintiff, who is a developer of the same cooking equipment, the Plaintiff should have filed an appeal against the head of ○○○ Headquarters △△△△△△△△ Group, the disposition authority, rather than filing a civil lawsuit seeking the performance of the duty to issue a certificate of research and development against the Defendant, who is the legal entity of which the disposition authority belongs, or filing a lawsuit seeking the revocation

(2) Since the Panel Division of the Daejeon District Court and the Panel Panel of the Daejeon High Court, which are the first instance court of this case, have jurisdiction over the first instance court in the case of the instant lawsuit as an appeal litigation under the Administrative Litigation Act, there is no problem of violation of jurisdiction. In addition, since the Plaintiff filed the instant lawsuit on May 18, 2018 after receiving a reply to the instant rejection on May 18, 2018, and thereafter, on June 12, 2018, the period for filing the revocation lawsuit was observed, and there is no reason to deem that the Plaintiff failed to meet the other requirements for the revocation lawsuit and other litigation. Therefore, the lower court should have deliberated and judged whether the instant rejection petition was a legitimate rejection disposition in accordance with the procedure prescribed by the Administrative Litigation Act by exercising the right to ask the Plaintiff for a revocation lawsuit under

(3) Nevertheless, the lower court maintained the judgment of the first instance court that the Defendant did not have a duty to issue a certificate of research and development on the premise that the instant refusal constitutes a rejection disposition that is the subject of an appeal litigation, and that the instant lawsuit constitutes a civil lawsuit claiming the performance of obligations under the instant service contract, thereby dismissing the Plaintiff’s appeal on the grounds that Article 114-2 of the former Directive on the Business of the National Defense Power Development was not incorporated into the content of the instant service contract. In so doing, the lower court erred by misapprehending the legal doctrine on the disposition and the method of litigation that are the subject of an appeal litigation, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

4. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)