(영문) 서울행정법원 2018.9.13. 선고 2018구합2513 판결

A. On March 1, 1978, the Plaintiff was appointed as Staff Sergeant on August 19, 1978, and was discharged from military service on March 31, 198, and was discharged from military service on March 31, 198. After that, the Plaintiff was appointed as civilian employees on May 1, 1985, and voluntarily retired on May 30, 2012.

B. The Plaintiff was awarded the National Security Medal on July 31, 2012 as retirement rewards.

C. The 2012 Guidelines for Government Rewards (hereinafter referred to as the “instant Guidelines”) regarding retirement rewards for military personnel and civilian employees are as follows:

The Order of Hadon Order: In case where a public official, a teacher of a private school, an employee of a special post office, etc. among persons whose tenure of office is 33 years or more, and a public official, a teacher of a private school, or a civilian military employee, a teacher of a special post office, or a civilian military employee, who has served for not less than 30 years but less than 33 years in accordance with the following criteria, and a public official, a teacher of a private school, or an employee of a special post office, etc., who has served for not less than 33 years but less than 33 years in his tenure of office, were assigned to serve as a public official other than a soldier (including a civilian military employee) during the period of service assigned to serve as a public official under Article 2 of the State Public Officials Act and Article 2 of the Local Public Officials Act, and retires after being appointed as a public official other than a soldier (including a civilian military employee), the entire Military Academy for Armed

D. On August 2017, the Plaintiff received a civil petition from a civilian military employee to the effect that, at the time of a retirement reward, all of the training period of the staff sergeant or one-half should be included in the tenure of office. On August 18, 2017, the Defendant sent a notice of guidance on the results of the treatment of civil petitions as follows to the Plaintiff (hereinafter “instant civil petition petition”).

This is understood to suggest the revision of the Guidelines for Military Awards so that the period of service can be added to the status of military personnel.First, whether the military cadets, officer candidates, and noncommissioned officer candidates who are receiving education at the military training institution can be seen as status of military personnel (public officials) can be classified. (A) The government reward service guidelines refer to officers, warrant officers, noncommissioned officers, and enlisted soldiers who serve on active duty, but the status of military personnel except for enlisted soldiers is not based on the status of military personnel according to the Military Personnel Management Act, but based on appointment. Accordingly, if military cadets, officer candidates, and noncommissioned Officer candidates, etc. who are receiving education at the military training institution are subject to education, are included in the status of military personnel (see, e.g., Supreme Court Decision 200Hun-Ba6, Jan. 1, 2006).

As the requirement of retirement reward has already been completed, and in 2012, the National Foundation Medal has been awarded as retirement reward, it is apparent that the retroactive application is not allowed as a matter of principle as it constitutes a true rank.

E. The Plaintiff filed an administrative appeal requesting the Central Administrative Appeals Commission to revoke the instant civil petition reply, and the Central Administrative Appeals Commission, on December 19, 2017, rendered a ruling dismissing the Plaintiff’s petition on the ground that the Plaintiff’s petition was filed on the ground that it was illegitimate.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, and 6, the purport of the whole pleadings

2. The plaintiff's assertion

The instant guidelines stipulate that a retired soldier or military employee with a service period of not less than 33 years is subject to the Order of National Security Merit, and that a retired soldier or military employee with a service period of not less than 30 years but less than 33 years should be included in the period of service only in the case of retirement of military personnel. In accordance with the instant guidelines at the time of retirement of the Plaintiff as a civilian military employee in 2012, the military training experience was not included in the period of service, and as a result, the period of service falls short of 33 years and thus, the National Security Merit, other than the Order of National Security Merit, was awarded.

However, considering the fact that the Public Officials Pension Management Corporation calculates the period of service for 33 years and 2 months including both the training period of the military and pays the retirement pension to the Plaintiff, that the Military Service Act provides that active service shall serve in the military from the date of enlistment, and that the duties of military personnel and civilian employees are the same in terms of contributing to national security, it is against the equity in the law to change the method of calculating the period of service, which serves as the basis for retirement rewards between military personnel and civilian employees. Accordingly, even in the case of retirement rewards for civilian employees in the military service, one-half of the military training experience should be included in the period

Nevertheless, since the Defendant issued the instant civil petition reply to the purport that the period of military training is included in the period of service only in the case of retirement of the Plaintiff’s civil petition as a soldier, the instant civil petition reply should be revoked in an unlawful manner.

3. Ex officio determination on the legitimacy of the instant lawsuit

We examine ex officio the legitimacy of the instant lawsuit.

Administrative litigation is filed on the premise of dispute over specific rights and obligations, and administrative litigation is an act under the public law of an administrative agency, which is an act under the public law and directly related to the rights and obligations of the people, such as establishing a right in respect of a specific matter, ordering obligations and giving rise to other legal effects. Thus, a reply given by the head of each administrative ministry, etc. on the interpretation of Acts and subordinate statutes under the jurisdiction of the general public is not binding upon the court, and it does not result in a direct change in the legal status of the other party or other related persons, and thus, it cannot be subject to an appeal litigation, barring special circumstances (see Supreme Court Decision 91Nu2441, Oct. 13, 1992).

With respect to the instant case, it cannot be deemed that the right to demand a decoration is recognized on the ground that the Ministry of Public Administration and Security merely failed to meet the internal standards established in the work process guidelines for recommending the recipients of decoration and that the instant guidelines meet the qualification requirements set forth in the instant guidelines (see Constitutional Court Order 2008Hun-Ma367, Jul. 30, 2009). The instant guidelines cannot be deemed as having the right to request a correction under the laws or regulations demanding the Plaintiff to make the amendment, and even if the Plaintiff demands the amendment of the instant guidelines, it is merely a demand for an administrative agency to exercise the authority, and thus, cannot be deemed to cause a change in the Plaintiff’s rights and duties even if the Defendant refuses the amendment. In addition to the overall purport of the oral argument in the foregoing facts, the Defendant’s reply to the instant civil petition cannot be seen as having explained the contents of the relevant Acts and subordinate statutes and notified the interpretation thereof. Ultimately, in light of the legal principles as seen earlier, the Defendant’s reply to the instant civil petition does not affect the Plaintiff’s rights and obligations.

따라서 이 사건 민원회신의 취소를 구하는 이 사건 소는 항고소송의 대상이 될 수 없는 것을 대상으로 하는 것으로서 부적법하다(한편 원고의 민원 취지를 단순히 이 사건 지침의 개정을 건의하는 데에서 넘어 자신에게 보국훈장을 수여해 달라는 것으로 보고 이 사건 민원회신을 이를 거부하는 것으로 선해하여 보더라도, 헌법은 '대통령은 법률이 정하는 바에 의하여 훈장 기타의 영전을 수여한다'고 규정하고 있고(헌법 제80조), 상훈법은 중앙행정기관의 장(대통령 직속기관 및 국무총리 직속기관의 장을 포함한다), 국회사무총장, 법원행정처장, 헌법재판소사무처장 및 중앙선거관리위원회사무총장이 공적심사를 거쳐 서훈의 추천을 하면, 대통령이 국무회의의 심의를 거쳐 서훈 대상자를 결정한다고 규정하고 있는바(상훈법 제5조, 제7조), 대통령이 헌법과 상훈법의 규정에 따라 대상자에게 훈장 기타의 영전을 수여하는 것은 국가원수의 지위에서 행하는 고도의 정치성을 지닌 국가 작용으로서 서훈 여부에 대한 결정권은 전적으로 대통령에게 있는 것이고 국민은 행정청에 대하여 훈장의 수여를 요구할 수 있는 법규상 또는 조리상 권리를 가지지 아니하므로, 이를 거부하는 행정청의 행위를 국민의 권리·의무 관계에 변동을 일으키는 것으로서 항고소송의 대상인 처분에 해당한다고 볼 수 없으니(대법원 2001.10. 23. 선고 2001두4764 판결 참조), 이 사건 소는 역시 부적법하다.

4. Conclusion

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