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(영문) 헌재 1999. 1. 28. 선고 98헌마16 공보 [상이등급구분신체검사 등외판정처분취소]
[공보(제32호)]
Main Issues

After an administrative litigation seeking the revocation of an administrative disposition was filed, but the judgment which is not accepted has become final and conclusive and becomes final and conclusive and cannot be disputed by the court proceeding, whether the constitutional petition seeking the revocation of the administrative disposition itself is legitimate by asserting the unconstitutionality of the administrative disposition itself

Summary of Decision

Any judgment on the case that is subject to a court judgment;

The final and conclusive administrative disposition can only be the object of adjudication on constitutional complaint in cases where it is exceptionally the object of adjudication on constitutional complaint because the adjudication on the original administrative disposition violates fundamental rights of the people by applying laws and regulations decided unconstitutional by the Constitutional Court, and in other cases, the request for adjudication on constitutional complaint seeking revocation of the original administrative disposition is not allowed.

Dissenting Opinion by Justice Cho Jong-soo

A. The legislative intent of Article 111(1)5 of the Constitution of the Republic of Korea or Article 68(1) of the Constitutional Court Act is clearly divided into the direct source of a lawsuit against “judgment of the court” and the source of a lawsuit against the original power action, which has gone through a “judgment” as a remedy procedure, and it is possible to file a constitutional complaint against all the public authority actions except for a “judgment,” if they are subject to all the remedy procedures prescribed by other Acts. Thus, the original power action, which has gone through a “judgment,” as a remedy procedure, is also subject to constitutional complaint.

(b)In accordance with the language and text of Article 107, Section 2 of the Constitution, the Supreme Court has the authority to finally review only when the unconstitutionality and illegality of the disposition itself becomes the premise of the judgment, and except in such a case, the constitutional complaint claiming direct infringement of fundamental rights by the disposition itself is possible.

(c)The exclusion of “judgment” from the subject of constitutional complaint in principle is merely a cause of trial, such as the judge’s misjudgment, and it cannot be considered that the issue of infringement of fundamental rights newly created cannot be the subject of constitutional complaint, and that the constitutional complaint against the original administrative disposition, which is the cause of the trial, is also excluded.

[Reference Provisions]

Articles 107(2) and 111(1)5 of the Constitution

Article 68 (1) of the Constitutional Court Act

Reference Cases

Constitutional Court Decision 96Hun-Ma172 on December 24, 1997, Supreme Court Decision 9-2, 842

Constitutional Court Decision 91Hun-Ma98 dated May 28, 1998, Supreme Court Decision 10-1, 660

Parties

Cheong-gu Life Ma-Woo

Attorney Song-young

The head of Daejeon Regional Veterans Affairs Office

Text

The appeal of this case is dismissed.

Reasons

1. Case summary and the object of the trial;

A. Case summary

On January 7, 1992, the claimant was admitted to the Army and was discharged from military service on April 1993. The claimant was discharged from military service on June 20, 1992, and was engaged in the construction of a church for four months from June 20, 1992 to September 1, 199, and was examined by the National Armed Forces Maritime Hospital, and was found to have been identified as a hydroelectric escape certificate No. 4-5 on August 25, 1993. After being examined by the National Armed Forces Maritime Hospital, the physical grade was adjusted to five on August 25, 1993. The claimant was discharged from military service on September 19, 197. The claimant was discharged from military service on December 20, 1995, but the applicant was dismissed on December 29, 197, which was subject to the judgment of the court of distinguished service to the State on December 20, 1997.

(b) Object of adjudication;

The subject of the adjudication on the constitutional complaint of this case is whether the head of the Daejeon Regional Office infringes on the claimant's fundamental rights by the non-examination of disability rating classification and non-examination of injury rating (hereinafter "disposition of this case").

2. The claimant's assertion;

In accordance with Article 14 of the Enforcement Decree of the Honorable Treatment, etc. of Persons of Distinguished Services to the State, the claimant is required to be judged as "persons with physical disability or skills in spine injury" and the respondent violated the applicant's right to equal rights and the right to live a life worthy of human dignity by making a decision in excess of his/her degree of injury classification and physical examination.

3. Determination

The instant case is a claim for adjudication on constitutional complaint seeking revocation by asserting unconstitutionality of the pertinent administrative disposition (hereinafter “original administrative disposition”) after an administrative litigation seeking revocation of the administrative disposition was filed, but the judgment that is not accepted becomes final and conclusive and conclusive and becomes no longer subject to the court’s litigation procedure.

The original administrative disposition which became the object of the judgment of the court and became final and conclusive, shall be fundamental rights of the people by applying Acts and subordinate statutes which the Constitutional Court has decided to be unconstitutional.

In exceptional cases where an infringement is subject to adjudication on constitutional complaint and the adjudication itself is revoked, and in other cases, a request for adjudication on constitutional complaint seeking revocation of original administrative disposition is not allowed (see, e.g., Constitutional Court Decision 96Hun-Ma172, Dec. 24, 1997; Supreme Court Decision 9-2, 842, May 28, 1998; Supreme Court Decision 91Hun-Ma98, May 28, 1998; Supreme Court Decision 10-1, 660, etc.).

However, as seen earlier, the claimant of this case only sought revocation of the disposition of this case, and it does not constitute an exceptional case where the original administrative disposition can be subject to adjudication on constitutional complaint. Thus, the claim for adjudication on constitutional complaint seeking revocation of the disposition of this case, which is the original administrative disposition, is unlawful without further examination.

4. Conclusion

If so, the claimant's request for adjudication is unlawful, so it is decided as per Disposition.

This decision was delivered with the assent of all the remaining Justices, except the dissenting opinion by Justice Cho Jong-soo.

5. Dissenting Opinion by Justice Cho Jong-soo

B. In the case of the 91Hun-Ma98, 93Hun-Ma253 (Consolidation), which the Korean Court rendered on May 28, 1998, stated in detail that in the case of an administrative disposition, as a representative form of administrative action among the legislative, administrative and judicial actions, which are public power, an infringement on fundamental rights due to the exercise or non-exercise of the administrative action, an administrative disposition is subject to adjudication on constitutional complaint even in the case of an administrative disposition which has gone through the "judgment" in the administrative litigation as a procedure for remedy for infringement, the majority opinion still objects to the majority opinion. The reasons are as follows.

A. The legislative intent of Article 111(1)5 of the Constitution of the Republic of Korea or Article 68(1) of the Constitutional Court Act is clearly divided into the direct source of a lawsuit against “judgment of the court” and the source of a lawsuit against the original power action, which has gone through a “judgment” as a remedy procedure, and a constitutional complaint against all the public authority actions except “judgments” may be filed if all the remedy procedures prescribed by other Acts are followed, and it is clear that the original power action, which has gone through a “judgment,” as a remedy procedure, is also the subject of a constitutional complaint if all the remedy procedures prescribed by other Acts are followed.

(b)The majority opinion excluded the administrative action from the administrative action that is the subject of the constitutional complaint, and Article 107(2) of the Constitution of the Republic of Korea, Article 107(2) of the Constitution of the Republic of Korea, the principle of the constitutional complaint against the trial, and the non-recognition of the constitutional complaint against the trial (96HunMa172, Dec. 24, 197, 9-2

Although the issue of history is cited, this is all unfair arguments as follows.

(1) Even in accordance with the language and text of Article 107(2) of the Constitution, the Supreme Court only has the authority to finally review the case where the unconstitutionality and illegality of the disposition itself becomes the premise of a judgment. Thus, except in such a case, a constitutional complaint claiming direct infringement of fundamental rights by the disposition itself is possible. Since the Supreme Court has established a precedent that the order and rule itself is subject to an adjudication on constitutional complaint in a case where the order and rule itself are directly infringed on fundamental rights, there is no reason to deem it differently from the order and rule.

(2) The majority opinion argues that the revocation of a constitutional complaint in relation to the original administrative disposition in the decision of the case, such as the above 96HunMa172, which the Korean Court rendered, by accepting the constitutional complaint against the original administrative disposition, is limited to the case where the decision of the court, which was the object of the original administrative disposition, is exceptionally subject to constitutional complaint and is revoked in itself, in order to promptly and efficiently remedy the fundamental rights of the people, and otherwise, if the decision of the court is not revoked, the original administrative disposition shall not be subject to constitutional complaint due to res judicata of the final and conclusive judgment, on the ground that res judicata effect of the final and conclusive judgment shall not be subject to constitutional complaint. Thus, the constitutional complaint against the original administrative disposition is not a mere review of administrative action

However, the exclusion of “judgment” from the subject of a constitutional complaint in principle is to exclude a judge from filing a constitutional complaint against a judgment or decision on the grounds of infringement of fundamental rights or infringement of fundamental rights in litigation proceedings. In other words, the issue of infringement of fundamental rights newly arising as a cause of trial action cannot be considered as the subject of a constitutional complaint, and it cannot be said that the constitutional complaint against the original administrative disposition, which caused the judgment, is excluded from the legal text of “except for a trial,” and even from the point of view of a subject matter of lawsuit, the provision of the exclusion of the constitutional complaint against a judgment, which is the principle of a constitutional complaint against a judgment, cannot be interpreted as a provision of the exclusion of the constitutional

In addition, the purport of the decision of the above case is not the same purport as the majority opinion pointed out. In other words, by applying the statutes that the Constitutional Court has decided unconstitutional, only the court's judgment which infringes on the fundamental rights of the people can be exceptionally subject to adjudication on constitutional complaint, and the court's judgment

The purport of the constitutional complaint against the constitutional complaint is that the constitutional complaint against the original administrative disposition is not allowed only in the case of requesting the revocation of the decision itself.

(3) The binding force of the Constitutional Court to confirm the constitutionality of the original administrative disposition and the non-exercise of public power should be deemed to take precedence over the res judicata of the final and conclusive judgment of the court on the administrative disposition. As such, the essence of res judicata and the "decision of the Constitutional Court on the revocation and constitutionality of original administrative disposition" do not conflict with each other, and the above res judicata is only extinguished due to the said binding force.

This is not different from the legal principles that res judicata ceases to exist due to the cancellation of the final judgement of the court (for example, retrial).

C. As above, the majority opinion states that the subject of constitutional complaint against the original administrative disposition is recognized, so the petition of this case should have been judged lawfully.

Judges

Justices Kim Yong-hee (Presiding Justice)

Freeboard Mag-Jho, J. J. J. J. J. S.

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