(a) Whether a disciplinary action, which was taken by mistake of the causal relation with the disciplinary action, based on disciplinary data having external shape, is void abundance (negative);

(b) The case holding that the defect of disciplinary action can not be seen as clear only if the person subject to disciplinary action, who has been notified of a false and obvious misconduct by the adviser of the military investigation agency, has made the disciplinary action based on the notification, and the person subject to disciplinary action stated that the disciplinary action is false;

A. If there is a defect that the person having an authority to take disciplinary action misleads the factual relations in the course of the disciplinary action, even if the defect is serious, if it is objectively unclear, the disciplinary action can be revoked, and it cannot be deemed that the disciplinary action is void as a matter of course. If the misunderstanding of the factual relations in the grounds of the disciplinary action arises from the wrong disciplinary materials, unless it is evident that the materials for the disciplinary action lack external appearance and are objectively impossible to recognize the establishment or the authenticity of the contents thereof, it is difficult to view the misunderstanding of the factual relations due to the disciplinary materials as an objective apparent defect.

B. The Ministry of National Defense states that the plaintiff, a military officer in charge of the headquarters of the Ministry of National Defense, received a bribe from the relevant supplier. The above investigator notified the defendant, who is the person having authority for disciplinary action, according to the plaintiff's statement, and the defendant dismissed the plaintiff, based on the plaintiff's notification of the misconduct. The plaintiff's statement at the investigation team is against the truth, and it is against the plaintiff's statement that the plaintiff was present at the disciplinary committee and made a statement to the effect that the plaintiff did not have any fact of bribery, and even if such contents were recorded in the minutes of the disciplinary action, it is not deemed that the defendant directly participated in the investigation team's receipt of the plaintiff's statement about the crime of bribery, and it is difficult to view that the above investigation team's statement at the disciplinary committee lacks external appearance. Thus, if it is evident that the plaintiff's statement at the above investigation team's above alone does not constitute a case where it is objectively impossible to recognize the authenticity of the contents of the above misconduct. Thus, it is evident that there is any defect in the grounds for disciplinary action of this case.

Article 19 of the Administrative Litigation Act, Articles 78 and 82 of the State Public Officials Act

[Judgment of the court below]

Ministry of National Defense

Seoul High Court Decision 89Gu6336 delivered on May 31, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

According to the reasoning of the judgment below, at the time of January 29, 1983, when the plaintiff, who is a military police officer of the Ministry of National Defense, received a bribe from the non-party 1 company, such as a disguised network of the Ministry of National Defense, due to the suspicion of receiving the bribe in the process of supplying the goods, the court below determined that the defendant was unable to receive the plaintiff 2's notice of dismissal of the above facts based on the plaintiff 2's reasoning that the non-party 2, an investigator of the above investigation team, made intimidation on the ground that he did not constitute a suspicion of bribery to the plaintiff, and received a false accusation from the defendant 250,00,00 from the first time of June 1, 1981 to the non-party 3, who is an employee of the Ministry of National Defense, and that the defendant received the above fact that the plaintiff 2 was dismissed from the defendant's office based on the plaintiff 2's explanation that it was hard to view that the plaintiff 2 had received the above facts of bribery.

The administrative disposition is considered to be null and void only when the defect is serious and objective, and even if there is a defect in the fact-finding in the disciplinary disposition, if it is serious and objective, the disciplinary action can be revoked if it is not objectively clear. Therefore, if the mistake in the fact-finding relation is due to the wrong disciplinary data, if it is obvious that the material of the disciplinary action lacks external appearance and it is objectively impossible to recognize its establishment or its authenticity, it would be difficult to view that the mistake in the fact-finding relation is objectively obvious from the disciplinary data, unless it is known.

As at the time of the original judgment, the plaintiff made a statement that he received the bribe in question from the above investigator, and the above investigator notified the defendant according to the plaintiff's statement that he received the bribe in question, and the defendant dismissed the plaintiff based on the notification of the misconduct, and as the plaintiff's assertion, the plaintiff made a statement to the effect that the plaintiff was present at the disciplinary committee and did not have any fact of acceptance of bribe and that the adviser in the investigation team made a false confession of the facts of acceptance of bribe in question, and even if such contents were recorded in the minutes of the disciplinary action, it cannot be seen that the defendant directly participated in receiving the plaintiff's statement about the fact of acceptance of bribe in the investigation team, and it is difficult to view that the materials of notification of the misconduct in question from the above investigator lack the appearance of appearance, and that the plaintiff's statement in the disciplinary committee alone cannot be objectively recognized.

In the end, even if there is a defect in the dismissal disposition of this case that caused the plaintiff to mistake that there was a cause for the disciplinary action, it is not clear that the plaintiff's above statement made by the disciplinary committee alone is not clear. Thus, the court below is just in holding that there is no evidence to prove that the defect is objectively obvious, and thus, it does not constitute a cause for the invalidation of a matter. As pointed out in the arguments, even if the court below did not examine the evidence of the minutes of the disciplinary action, it cannot be said that there was an incomplete hearing that affected the result of the judgment or

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won