A. Whether the defect of a disciplinary action, which is automatically null and void, is treated as a citing the person subject to the disciplinary action (negative)

(b) The case holding that a lawsuit seeking confirmation of invalidity of a disciplinary action is not permitted as it goes against the good faith principle

(a) If a disciplinary action is deemed invalid due to a significant and obvious defect, the person who was subject to the disciplinary action was allowed to do so, and the defect is not treated.

B. When a person subject to disciplinary action was paid a retirement allowance, etc. with knowledge of a significant and obvious fault in the disciplinary action, and filed a complaint on the disciplinary action, and immediately withdrawn the disciplinary action, and for five or more years thereafter, or all disputes over the validity of the disciplinary action were no longer likely to be prosecuted due to the expiration of the statute of limitations for the above misconducts, the person subject to disciplinary action filed a lawsuit seeking confirmation of invalidity of the disciplinary action on the ground of the defect. On the other hand, if the person subject to disciplinary action established his status relationship by performing personnel affairs such as promotion and assignment on the premise of retirement of the person subject to disciplinary action for a long time after the occurrence of the disciplinary action, it is against the principle of good faith to seek confirmation of invalidity of the disciplinary action on the ground of the defect.

A. Article 1 of the Administrative Litigation Act (General Administrative Disposition)

Supreme Court Decision 81Nu275 Delivered on February 28, 1984

[Judgment of the court below]

The second Director General of the Army;

Seoul High Court Decision 87Gu1409 delivered on June 21, 198

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

In its reasoning, even though the Plaintiff’s act of divulging the military secrets of this case was pardoned by the general amnesty order of Presidential Decree No. 10194 on January 31, 1981, the judgment below determined that the disciplinary action of this case was invalid because the Plaintiff, who was subject to the disciplinary action, was aware of the existence of the defect, and thus, allowed it to escape from criminal prosecution, and thus, the disciplinary action of this case was null and void. In addition, the judgment below determined that it was against the good faith principle that the Plaintiff’s assertion that the disciplinary action of this case was null and void, and that it was no longer likely to be prosecuted due to the expiration of the statute of limitations as to the above misconduct and there was no possibility of criminal prosecution.

First of all, as determined by the court below, if the disciplinary action in this case is null and void due to a significant and obvious defect, the plaintiff who was subject to the disciplinary action is allowed to do so and the defect is not cured. Therefore, the ground for appeal pointing this out has merit. However, according to the records, although the plaintiff was paid wages such as retirement allowances, etc. which were paid at the time of retirement with knowledge that there was a defect in the disciplinary action in this case, the plaintiff filed an appeal for the above disciplinary action, but it was immediately withdrawn, and it was no longer likely to bring an action in this case due to the expiration of the statute of limitations for 5 years or more after it was withdrawn, and there was no concern to bring an action in this case due to the above defect, and the plaintiff filed an action in this case on the premise of promotion, assignment, etc. of the plaintiff's retirement for a long time, and thus, it cannot be said that the plaintiff's ground for invalidation of the disciplinary action in this case is inconsistent with the principle of good faith.

Therefore, the lower court’s determination that deemed that the instant disciplinary action was cured due to the fault of the disciplinary action is inconsistent with the good faith principle, and thus, it cannot be permitted as it goes against the principle of good faith and thus, the lower court’s erroneous judgment did not affect the 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 Ansan-man (Presiding Justice)