2. The costs of lawsuit shall be borne by the Plaintiff.

A. On July 15, 2008, the Minister of National Defense (hereinafter “the Minister of National Defense”) reported on July 15, 2008 to the Minister of National Defense that the Korea Federation of Korean University Students Association (hereinafter “Korea”) from the Armed Forces Commander, in order to strengthen the anti-government and anti-mination project against soldiers, the Minister of National Defense (hereinafter “Korean War”) promoted a culture campaign to send books (23 books) to soldiers on active duty. The Minister of National Defense instructed the Minister of National Defense (hereinafter “the Minister of National Defense”) to take measures against soldiers on active duty, based on Article 16-2 of the Military Service Rule, that it would be likely to undermine the mental power of the National Armed Forces, and to prevent such act from being committed against military soldiers on active duty, and ordered the Minister of National Defense to take measures to block the entry of books of the said 23 books into the military branch (hereinafter “the instant order”). The Minister of National Defense under the direction of the Minister of National Defense (hereinafter “Defendant 208”).

B. The Plaintiff passed the examination for appointment of military advocates on December 14, 200 and completed the curriculum of the Judicial Research and Training Institute, and was appointed as military advocates on April 2003, and was in office as military advocates at the time of the instant instruction.

C. On October 22, 2008, the Plaintiff filed an adjudication on constitutional complaint with five other military advocates including Nonparty 1 (hereinafter “Plaintiff, etc.”) on the ground that Article 47-2 of the Military Personnel Management Act (amended by Act No. 10703, May 24, 2011; hereinafter the same) and Article 16-2 of the Military Service Rule violates the principle of prohibition of comprehensive delegation, the principle of statutory reservation, and the principle of clarity, and that the instant order and the above Military Service Rule violate the Plaintiffs’ fundamental rights.

D. On March 18, 2009, the president of the defendant president: (a) against the Plaintiff’s disciplinary grounds (i) through (iv) as follows; (b) against Nonparty 1’s disciplinary grounds (i) through (v) against the Plaintiff; and (c) dismissed the Plaintiff, respectively (hereinafter “instant primary disciplinary action”).

(5) The Plaintiff et al. filed a constitutional complaint without following the Defendant minister’s instructions through the system of command, thereby disrupting military discipline (Article 56 subparag. 3 of the Military Personnel Management Act, Articles 4 and 24 of the Military Service Rule). (2) The Plaintiff and Nonparty 1 collected the same participants through telephone, Internet, e-mail, and direct contact with Nonparty 2, etc. for the purpose of evading the instant instructions, thereby collectively filing a constitutional complaint with the Defendant 4, including Nonparty 6, which violated the duty to maintain the dignity of the military judicial officer; (3) the duty to directly comply with the instructions of the Defendants 1 and 5 of the Military Personnel Management Act (Article 56 subparag. 3 of the Military Personnel Management Act and Article 13 subparag. 13 of the Military Personnel Management Act; and (4) the duty to directly comply with the instructions of the Defendants 1 and 6 of the Military Personnel Management Act (Article 56 subparag. 3 of the Military Personnel Management Act and Article 13(1) of the Military Service Rule).

E. The Plaintiff filed an appeal to the Ministry of National Defense against the instant initial disciplinary action by the president of the Defendant president. However, on April 30, 2009, the Defendant Minister dismissed the Plaintiff’s appeal in accordance with the Plaintiff’s resolution on April 24, 2009 against the Ministry of National Defense’s appeal review committee for military disciplinary action against the Plaintiff.

F. The Plaintiff et al. filed an administrative litigation against the instant initial disciplinary action. On April 23, 2010, the Seoul Administrative Court rendered a judgment accepting the Plaintiff’s claim on the ground that “The grounds for disciplinary action (i) or (iii) recognized the Plaintiff, the grounds for disciplinary action (iv) not recognized, and the dismissal disposition against the Plaintiff in relation to a disciplinary action is so harsh that it deviates from or abused discretion,” and filed an appeal against each of the losing parts.

G. On August 6, 2011, the Seoul High Court rendered the same conclusion as the first instance judgment with respect to the Plaintiff’s claim on August 6, 2011 (Seoul High Court Decision 2010Nu15614), and sentenced the dismissal judgment (hereinafter “previous appellate judgment”). Of the above appellate judgment, the part concerning the Plaintiff and Nonparty 1 among the above appellate judgment is finalized, and the remaining Plaintiffs filed an appeal with the Supreme Court.

H. On September 8, 2011, the Plaintiff was reinstated, and on October 20, 201, the Defendant president, reflecting the result of the judgment rendered by the Plaintiff on October 20, 201, took a one-month disciplinary measure (hereinafter “instant disciplinary measure”) with respect to (i) through (iii) the above disciplinary cause, taking account of the result of the judgment rendered by the Plaintiff.

(i) On December 12, 201, the lower court determined that the Plaintiff constitutes a person who destroyed the military unity without exclusive and fighting, as the Plaintiff was subject to heavy disciplinary action, on the ground that it constitutes “a person who destroys the military unity without military unity.”

H. On January 12, 2012, the president rendered a disposition ordering the Plaintiff to discharge from active service (hereinafter “instant discharge disposition”) on January 18, 2012, following a resolution by the committee for examination on discharge from active service on January 18, 2012.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 2 (including virtual number; hereinafter the same shall apply) and 3, the purport of the whole pleadings

2. Judgment on the Defendant’s defense prior to the merits (the relevant statutes are as shown in the attached Form)

(a) Failure to pass the administrative appeal procedure;

As to the instant lawsuit seeking the revocation of the instant disciplinary action and the discharge from military service, the Defendant’s defense prior to the merits, which is unlawful, by failing to go through the appeals review committee (in the case of disciplinary action) or the appeals review committee (in the case of discharge from military service) as an essential procedure under Article 51-2 of the Military Personnel Management Act. First, since the Plaintiff filed an appeal with the personnel review committee of the Ministry of National Defense around January 17, 2012 regarding the instant disposition from military service (Evidence 5) and the Defendant’s assertion is meaningful only for the instant disciplinary action.

Article 18(3)1 of the Administrative Litigation Act provides that “In a case where a suit for revocation may be instituted without filing an administrative appeal, the case is “when an administrative appeal has already been made against the same case.” However, as the instant disciplinary action is most common with the grounds for disciplinary action, the instant disciplinary action is identical to those of the instant disciplinary action, so long as the appellate review committee has already rendered a judgment on the actual and legal issues identical to the instant disciplinary action, it is not necessary to have the Plaintiff undergo a new trial on the instant disciplinary action. Accordingly, this part of the Defendant’s assertion is without merit.

(b)the existence of interests in protection of rights;

The defendant now expressed his wish to continue to serve as a lawyer, and even if the request for cancellation of the instant disposition was accepted on the ground that "the reason for filing a request for review of appeal is desired to be discharged from active service" in the written request for review of appeal submitted by the personnel review committee of this case, the plaintiff's intention to discharge from active service is clear. Unless there is no difference in legal effect between the discharge from active service that does not comply with the principal's intention under Article 37 of the Military Personnel Management Act and the discharge from active service based on the principal's will under Article 35 of the Military Personnel Management Act, the claim for cancellation of this

According to Article 45 of the Enforcement Decree of the Military Personnel Management Act, the method of discharge from active service is stipulated by stipulating that a person who wants to be discharged from active service shall submit a written application for discharge from active service to a person with the authority to discharge from active service within one year prior to the date on which the person wants to discharge from active service through a command system. On January 1, 2012, the Plaintiff merely expressed “the Plaintiff’s desire to continue discharge” on the notification that the Committee for Review of Military Service was held to the Plaintiff, and the Plaintiff did not submit a written application for discharge from active service under Article 45 of the Enforcement Decree of the Military Personnel Management Act. Thus, even if the instant written application for discharge from active service does not exist, it cannot be deemed that the effect of discharge from active service naturally takes place. ② The written application for discharge from active service is awarded to a member (Article 45-2 of the Enforcement Decree of the Military Personnel Management Act). On the other hand, it is difficult to deny the Plaintiff’s protection of rights due to the cancellation of the instant discharge from active service.

3. Whether each of the dispositions of this case is legitimate

A. As to the instant disciplinary action

1) The plaintiff's assertion

The grounds of the instant disciplinary action Nos. 1 through 3 are not recognized. In particular, regarding the grounds of the disciplinary action No. 3, in the judgment of the first and second instances of the previous lawsuit, the grounds of the instant disciplinary action were recognized on the premise of the fact-finding that “the Plaintiff discussed Nonparty 1 and Nonparty 3 attorneys-at-law on October 17, 2008, who are the petitioners, on the premise of the fact-finding that “if the military advocates directly contact with the media, they may cause problems, such as the violation of the National Defense Relations Directive, and only the attorney’s contact with the press,” and there was no fact that the Plaintiff had discussed such matters, and the previous decisions

2) Determination

Inasmuch as the previous first instance judgment and the appellate court judgment were rendered at the end of the deliberation on the same issue between the same parties as to the validity of the instant disciplinary action, it is difficult to recognize the facts contrary to this case, unless there are special circumstances to deem it difficult to adopt the final judgment of the appellate court, which is the fact-finding court, as it is, barring any special circumstances. Accordingly, the lower court’s determination is based on the facts employed in the previous appellate court’s judgment.

A) The legal doctrine on restriction of fundamental rights due to the unique characteristics of military organization

Of course, all soldiers, including military advocates, can file an adjudication on constitutional complaint which causes a request for a trial as a national. However, our Constitution provides the National Armed Forces with a strong mission to guarantee national security and defend national land and treats military personnel who perform such special mission differently from the general public, and Article 37(2) of the Constitution requires the so-called “legal reservation doctrine” rather than “legal basis.” As such, the form of restriction on fundamental rights does not necessarily need to be the form of law, and if the form of authority for delegation required under Article 75 of the Constitution is satisfied with clarity and clarity of the delegation required under Article 75 of the Constitution, the fundamental rights can be restricted by delegated legislation. Considering the unique nature of the military organization that has a systematic structure of the national security and the mission of defending national land, it is difficult to view that the establishment of the Constitutional Court en banc Order 208Hun-Ba and its own order for the sake of maintaining the nation’s existence and independence in the area where military service or military affairs can have its independent discretion, and thus, it is difficult to readily conclude that such act violates the Constitution’s strict order and order.

B) As to grounds of disciplinary action 1

(1) Article 23(1) of the Military Service Rule provides that a soldier’s fundamental right may be subject to special restrictions due to the unique nature of the military organization. Article 23(1) of the Military Service Rule provides that “A soldier shall obey an order of his superior, who shall execute the order promptly and accurately.” Article 24(1) provides that “If a subordinate has beneficial or legitimate opinion to the father military, he/she may make a proposal to his/her superior solely according to the chain of command. Even if the superior makes a different decision with him/her, he/she shall always respect his/her superior’s intention and obey it.” Article 25(1) provides that “where a soldier judges that a soldier is in a state of unfair treatment, unreasonable inconvenience or disadvantage, or difficult to perform his/her duties due to personal reasons, he/she may request consultation or recommendation in accordance with the chain of command, or request review of grievance pursuant to Article 51-3 of the Military Personnel Management Act and Article 60-5 of the Enforcement Decree of the same Act, and that a soldier’s order or request for resolution of grievance shall not be determined by a specific method of command or resolution.”

Therefore, even in cases where a superior’s instruction or order is related to the restriction or infringement of a soldier’s fundamental right, unless there is a clear violation of such instruction or order, barring special circumstances, the superior’s intent in compliance with such instruction or order shall be respected and rejected without permission. In selecting a constitutional complaint by means of remedy for infringement of rights against such instruction or order, it is necessary to first make a proposal to his/her superior through the chain of command so that he/she can correct the problem within the military, and to request an adjudication on constitutional complaint to the Constitutional Court, which is an external institution of the military, to ensure that the direction or order does not interfere with the military command

D. As to the instant case, the instant order by the Defendant Minister appears to have been aimed at preserving the mental strength of soldiers by blocking the entry of the 23-class military unit, which is the commander of the armed forces, to be called the 23-class military unit. Since the mental power of soldiers is very important in combat forces, it is necessary not only to undergo mental education but also to eliminate the elements that may undermine the mental power of soldiers, since it is difficult for the Defendant Minister or the president of the Defendant president to determine that if the 23-class military unit, who is an active military unit, could cause harm to the mental power of soldiers, and to preserve the mental power of soldiers, it is difficult to view that the 23-class military unit’s order was issued without examining whether the 23-class military unit was infinite, and even if two-class military units are included in the 23-class military unit, it is difficult to view that the 23-class military unit’s order, which is an active military unit, was included in the 23-class military unit’s basic right to the 23-class military unit’s order.

Therefore, it is difficult to readily conclude that the order of this case is clearly unconstitutional or unlawful, and the plaintiff has a duty to obey it, and even if the order of this case was made by a personal decision that the order of this case is unconstitutional, the plaintiff should have taken measures so that it can be made within the military by making a recommendation to his superior independently in accordance with the direction system, and should have been made. However, as seen earlier, the plaintiff et al. requested an adjudication on the constitutional complaint of this case to the Constitutional Court, which is an outside institution of the military, without making a serious effort to make a proposal to his superior as to the unconstitutionality of the order of this case before filing a request for adjudication on constitutional complaint, and without making a serious effort to discuss and correct it. This constitutes a violation of all the provisions of the Military Service Rule, so this part of the

B) With respect to grounds for disciplinary action ②

Article 13(1) of the Military Service Rule provides that “A soldier shall not engage in collective action for any day other than military service.” “collective action for any day other than military service” refers to an act committed by a group of military personnel for a specific purpose detrimental to the essence of military service, such as undermining military discipline or violating one’s duty as a soldier, and such act does not need to be continuous, and it does not need to be organized to the extent that the form of command is well-established (see Supreme Court Decision 90Nu4839, Apr. 23, 1991). Article 24(1) of the Military Service Rule prohibits a group signature, etc. of a group for the purpose of interfering with the foregoing military service. In light of the aforementioned, the act of a group of persons seeking instructions or orders, other than those of their superior officers, by stating that it is an act of a group of persons with no exception to the establishment of a military command or order, and thus, the act of a group of persons with no exception to such instructions or orders, as an act of an internal order or its justification.”

As seen earlier, it is difficult to readily conclude that the instant order was clearly unconstitutional or unlawful. The Plaintiff et al. exchanged opinions to his superior solely according to the chain of command to make a constitutional complaint, and the Plaintiff et al. exchanged with one another to jointly file a constitutional complaint, and Nonparty 1 recruited a witness by posting this article on the Internet, and as a result, the Plaintiff et al. conspiredd to jointly file a constitutional complaint, and during that process, Nonparty 1 et al. expressed the intent to object to the instant order by inducing Nonparty 1 et al. to criticize the Minister of Justice who issued the instant order and to object to the instant order. As such, the filing of a constitutional complaint jointly by the Plaintiff et al. constitutes a “collective act for any specific purpose other than military service,” which constitutes a “collective act for the purpose other than military service,” and thus, this part of the grounds for final appeal is recognized.

C) With respect to grounds for disciplinary action

(1) According to Article 17(1) of the Military Service Rule and Article 22(1) and (3) of the Military Service Directive, a soldier shall not publish matters concerning national defense and military affairs to the military outside or engage in external activities as a soldier’s status without permission from the Minister of National Defense, and shall instruct the head of the relevant department to conduct an interview in cases where he/she receives a request for an interview from the media for a major issue, such as national defense policy, and shall undergo an advance review of the interview contents. The above provision aims to prevent confusions that may arise due to a soldier who does not represent the military indiscreetly announce his/her opinion to the outside of the military or respond to the press’s personal interview, as his/her personal qualification, and to prevent any damage to the trust of the military.

In addition, Article 56 subparagraph 2 of the Military Personnel Management Act provides that a soldier’s act of impairing his/her dignity, regardless of whether he/she is on duty, shall be one of the disciplinary reasons. According to Article 9 of the Military Service Rule, a soldier shall not act detrimental to his/her prestige and honor as a soldier, and shall maintain his/her dignity. As seen earlier, since the military forces are recognized as a special status and authority relationship distinct from that of the general society, even though the expression permitted in the society is recognized, it constitutes a disciplinary reason under the above provision that damages the trust of the military, inciting, insulting, insulting, and impruptive behavior, or disturbs his/her superior’s order by doing so.

Luxembourg, after the determination of the constitutional complaint on the instant order by Nonparty 1, the Ministry of Health and Welfare, and Nonparty 1, a public prosecutor, etc., discussed the following issues: (a) there was a news article that Nonparty 1 argued that the said reporters were unconstitutional in the newspaper to which they belong, and criticizes that they were unconstitutional; and (b) there was a concern that the Plaintiff and Nonparty 1 had a contact with the lawyers who will act on behalf of the Plaintiff for the constitutional complaint or the Plaintiff, etc.; (c) there was a problem that the attorneys would have a contact with the media; (d) there was a critical opinion or assertion by the Plaintiff and Nonparty 1 regarding the instant order at an interview with the media after the constitutional complaint was filed; and (e) there was no possibility that the Plaintiff or Nonparty 1 had a public interest in the military as well as the general public’s opinion or opinion on the constitutionality of the instant order; and (e) there was no possibility that the Plaintiff or Nonparty 1 had a public interest in the military as well as in the process of requesting the constitutional complaint.

D) Sub-committee

As above, all of the disciplinary grounds of the instant disciplinary action are recognized, the instant disciplinary action is lawful.

B. As to the discharge disposition of this case

1) The plaintiff's assertion

Since the grounds for disciplinary action of this case cannot be recognized, the grounds for disciplinary action of this case cannot be recognized as well. According to Article 63 of the Enforcement Rule of the Military Personnel Management Act, the person subject to investigation or examination of persons who are unfit for active duty service can be discharged from military service under Article 35 of the Military Personnel Management Act before the examination by the committee for examination of discharge from military service. Thus, the disposition of this case is unlawful.

2) Determination

According to Article 37(1)4 of the Military Personnel Management Act and Article 49(1)2 of the Enforcement Decree of the same Act, persons deemed unable to serve on active duty due to their inherent nature are subject to compulsory discharge, and according to Article 57 of the Enforcement Rule of the Military Personnel Management Act, persons subject to heavy disciplinary action are necessarily subject to investigation that they meet the standards for persons inappropriate to serve on active duty. The Defendant Minister shall respect the judgment of the military authority unless there is a clear violation of the military law in light of the unique characteristics of the military as a matter of principle determined by relevant agencies, such as the Chief of Staff or the committee for examination on discharge from active duty (see, e.g., Supreme Court Decision 2004Du107, Apr. 27, 2004).

In addition, Article 63 of the Enforcement Rule of the Military Personnel Management Act provides an opportunity for a soldier who is at risk of being discharged from active service to be discharged on his own will before an investigation or examination is conducted by the Investigation Committee or the committee for examination of discharge, as long as the instant disciplinary action is legitimate, the defect of the instant disciplinary action does not affect the validity of the instant disciplinary action. In addition, Article 63 of the Enforcement Rule of the Military Personnel Management Act provides an opportunity for a soldier to be discharged from active service upon his own will. Notwithstanding the resolution of the committee for examination of discharge from active service, it is not a provision that grants the authority to choose a member to be discharged from active service at the time of his own request. However, the Plaintiff was notified of the opening of the procedures for the examination committee or the committee for examination of discharge from active service (see subparagraph 3-1, 3, and 4) and the Plaintiff did not participate in the process leading to the instant

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Jae-hee (Presiding Judge)

1) However, the part of the claim for revocation of the Defendant Minister’s order to recruit the recruit, the expulsion of the Defendant President’s order to recruit the recruit, the order to change the duration of training, and the order to reinstate the original order was dismissed. Meanwhile, both Nonparty 1 and the rest of the Plaintiffs were dismissed.

2) However, among the grounds for disciplinary action acknowledged by the first instance court, the part that “the Plaintiff and Nonparty 1 directly presented his opinion or interviewed with the press and the press” on the instant order was not acknowledged. The Defendant Minister’s claim for revocation of the removal from the military on March 20, 2009 against the Plaintiff of the Defendant Minister, which the first instance court accepted. Meanwhile, the lower court accepted Nonparty 1’s claim and revoked the removal from the office against Nonparty 1, but dismissed all the remaining Plaintiffs’ appeal.

3) However, the circumstance that the Plaintiff is currently working as an attorney-at-law and expressed his/her intention not to return to active duty service in the future is merely a de facto situation in which the Plaintiff’s service physician is inferred.

4) The Constitution provides for the establishment of the national armed forces, the mission of which is to ensure national security and to perform the decent duty of defending national land (Articles 5(2) and 74(2)). To this end, all citizens are obliged to perform the duty of national defense (Article 39(1)). Article 66(2) provides that the President is obliged to exercise the authority to access the national armed forces (Article 74(1)). Meanwhile, if necessary for national security, fundamental rights may be restricted by Act (Article 37(2)). If a soldier needs to perform his/her duty, basic rights may be restricted by Act (Article 37(2)). The compensation for damages suffered by a soldier in the course of performing his/her duty (Article 29(2)). The bereaved families of persons of distinguished service to the State, wounded soldiers, and soldiers and policemen killed in action in the military shall be subject to special protection (Article 32(6)). Article 39(1) provides that military courts trials may be permitted (Article 10(1)4).

5) Of the 23-Class books designated as “U.S. Books,” “U.S. U.S. Strategy,” “North Korea’s economic development strategy,” and “Nuclear and the Korean Peninsula” were determined as pro-enemy contents in the Seoul Central District Court Decision 2008Kahap1165 Decided April 21, 2009. Such determination was confirmed through the Seoul High Court Decision 2009No1100 and Supreme Court Decision 2009Do11875 Decided April 21, 2009.

(6) While the Plaintiff denied this part of the factual relations and cited the evidence No. 3, it seems that the evidence alone is insufficient to reverse this part of the factual relations recognized in the previous appellate judgment.