In a case where Gap, who worked as a air force officer, applied for the payment of an honorary discharge allowance when he applied for the payment of an honorary discharge allowance, but Gap decided to exclude Gap from the appointment of the person eligible for the payment of an honorary discharge allowance on the grounds that he was prosecuted for his superior threats, etc., the Minister of National Defense made a rejection of the payment of an honorary discharge allowance to Gap, and upon the judgment of innocence became final and conclusive in the above criminal case after he was discharged from honor, the Minister of National Defense filed an application on the Internet homepage of the Ministry of Public Administration and Security to inform the Ministry of National Defense of the reason for failure to pay an honorary discharge allowance and the plan of measures, etc. although the judgment of innocence became final and conclusive, but the Air Force Headquarters personnel in charge of the Air Force Headquarters notified this by posting the processing result on the Internet homepage stating that "the decision of selection of the person who was prosecuted for a criminal case as of the date of the examination of honorary discharge is lawful,

Although Gap, who worked as a air force officer, applied for the payment of an honorary discharge allowance when he applied for the payment of an honorary discharge allowance, the Minister of National Defense made a decision to exclude Gap from the appointment of the person eligible for the payment of an honorary discharge allowance on the grounds that he was indicted for his superior threats, etc., and the Minister of National Defense made a decision to refuse the payment of an honorary discharge allowance to Gap. After the voluntary discharge from active service, upon the judgment of innocence became final and conclusive in the above criminal case, the Minister of Public Administration and Security filed an application on the Internet homepage of the Ministry of Public Administration and Security to inform the Ministry of National Defense of the reasons for failure to pay the honorary discharge allowance and the plan of measures, etc., although the Air Force Headquarters officer notified the Ministry of National Defense through the Ministry of Public Administration and Security’s Internet homepage, the person responsible for the performance

The case holding that it is reasonable to view that the above notification is subject to appeal litigation in full view of the fact that Gap's new application for the payment of the honorary discharge allowance on the ground that the judgment of innocence became final and conclusive in a criminal case after the rejection of the payment of the honorary discharge allowance was made, and that Gap's application for the payment of the honorary discharge allowance was rejected after considering changes in circumstances alleged through the previous application, namely, the circumstance that the judgment of innocence was finalized in a criminal case, and then Gap's rejection of the application for the payment of the honorary discharge allowance after deliberation by the Honorary Discharge Examination Committee, and that the above notification constitutes "the person who was selected as the person who was under indictment as a criminal case" and thus the appointment was revoked after the date of acquittal, the court's order for the payment of the honorary discharge allowance can be recommended as the person subject to the payment of the honorary discharge allowance without the need to undergo a review by the Honorary Discharge Examination Committee for the payment of the honorary discharge allowance even after the date of discharge (Article 99 (3) 2 of the National Defense Personnel Management Directive).

Article 53-2(1) and (6) of the Military Personnel Management Act; Article 2, 5, and 6 of the Regulations on the Payment of Honorary Discharge Allowances for Military Personnel; Article 27 of the Administrative Litigation Act

Plaintiff (Attorney Park Young-jin, Counsel for the plaintiff-appellant)

The Minister of National Defense

August 29, 2019

1. The Defendant’s refusal to pay honorary discharge allowances against the Plaintiff on November 16, 2018 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff's status

On March 1, 1994, the Plaintiff was so-called the Air Force, and was promoted to So-young on August 1, 2005. On January 1, 2015, the Plaintiff was promoted to Second Lieutenant on a two-year tenure system (two-year tenure term) and served at the ○○○○○○ Department of the Air Force Education Headquarters.

(b) the progress of relevant criminal cases;

The Plaintiff was indicted on May 13, 2016 on the ground that he/she sent a document stating his/her misconduct to his/her superior, to the head of the relevant church in the Air Security Academy in around 2015. The first instance court (Seoul Northern District Court 2017No103, Nov. 16, 2016) convicted the Plaintiff of part of the facts charged on November 16, 2016, and sentenced the Plaintiff to four months of imprisonment and one year of suspended execution. The appellate court (Seoul Northern District Court 2017No103) acquitted the Defendant on November 30, 2017, which became final and conclusive on December 8, 2017 (hereinafter referred to as “related criminal case”).

(c) Refusal of the payment of honorary discharge allowances and honorary discharge allowances;

On April 19, 2016, the Plaintiff applied for the payment of an honorary discharge allowance (on December 31, 2016, when he/she applied for the payment of an honorary discharge allowance). On July 2016, the Honorary Discharge Examination Committee decided to exclude the Plaintiff from the appointment of a person eligible for the payment of an honorary discharge allowance pursuant to Articles 96 and 97 of the Guidelines on the Personnel Management of National Defense (Ministry of National Defense No. 2279; hereinafter “instant Directive”). Accordingly, on July 2016, the Defendant issued a disposition rejecting the payment of an honorary discharge allowance (hereinafter “instant previous disposition”).

(d) Final verdict of innocence in a related criminal case and reply to the plaintiff's civil petition;

1) On December 31, 2016, the Plaintiff was discharged from active service, and the judgment of innocence became final and conclusive in the relevant criminal case, on November 5, 2018, the Plaintiff filed an application for information disclosure with the Ministry of National Defense via the Internet homepage of the Ministry of the Interior and Safety (hereinafter “instant Internet homepage”) to the effect that “The Plaintiff’s request for information disclosure with the Ministry of National Defense was made on November 5, 2018, for which one year has passed since the judgment of innocence was final and conclusive in the relevant criminal case, to notify the Plaintiff of the grounds for the payment of honorary discharge allowance

2) The Nonparty, a clerical assistant (Grade 9) working in the auditor office of the Ministry of National Defense, designated the Ministry of National Defense as the Air Force Headquarters. Accordingly, on November 16, 2018, the person in charge of the Air Force Headquarters reported the instant application as a civil petition, and notified the result of which “ even if the judgment of innocence against the relevant criminal case was finalized after the Plaintiff was discharged from active service, it is lawful as prescribed by the relevant laws and regulations to make a non-selected decision through the Honorary Discharge Review Committee for Honorary Discharge from Active Service to the Plaintiff who was indicted for a criminal case as of the date of the examination of discharge from active service (hereinafter “instant notification”).

3) On the Internet homepage of this case, the processing department of the instant notice is indicated as the Ministry of National Defense, and the processing department name is indicated as the Air Force Headquarters (Evidence A 2).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 6, 12, and 13, and the purport of the whole pleadings

2. The plaintiff's assertion

Although the Plaintiff was under prosecution for the relevant criminal case at the time of the previous disposition, and thus constitutes a person ineligible for the selection of the honorary discharge allowance, the Plaintiff again filed the instant application for the payment of the honorary discharge allowance to the Defendant on the ground that the judgment of innocence was finalized in the relevant criminal case. Nevertheless, the Defendant still rejected the instant application on the ground that the Plaintiff was prosecuted for the relevant criminal case at the time of the examination of the voluntary discharge from military service. In light of Article 48(5) of the Military Personnel Management Act, Articles 38(1)1 and 54(2) of the Enforcement Decree of the Military Personnel Management Act, and Article 99(3) of the instant Directive, the instant notification was unlawful by exceeding the scope of discretionary authority or by abuse of discretionary authority.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Judgment on the defendant's main defense of safety

A. The defendant's main defense

The instant lawsuit shall be dismissed for the following reasons.

1) The instant application merely questioning the reasons why the Plaintiff was not selected as a person eligible for the payment of the honorary discharge allowance, but does not constitute an act of refusing to apply for the payment of the honorary discharge allowance to the Plaintiff. Moreover, since the Defendant already rejected the payment of the honorary discharge allowance to the Plaintiff on July 2016, the previous disposition of this case was made against the Plaintiff and the filing period was limited, the instant notification is merely a notification of the concept, but does not constitute an administrative disposition that is subject to the appeal litigation.

2) The notification of this case is only made by the Air Force Chief of Staff, but is not made by the defendant, and there is no qualification for the defendant.

3) If the Plaintiff seeks to file a claim for the payment of an honorary discharge allowance, it constitutes a final legal relationship under public law, and thus, the Plaintiff’s filing of a party suit against the State cannot be subject to appeal litigation.

B. Determination

1) Whether the instant notice constitutes an administrative disposition

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. The decision should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010

In this case, in full view of the following facts and circumstances recognized by the foregoing facts, it is reasonable to view that the instant notice is subject to appeal litigation.

① On April 19, 2016, the Plaintiff applied for the payment of an honorary discharge allowance when he applied for the payment of an honorary discharge allowance. On July 2016, the Plaintiff was excluded from the appointment of a person eligible for the payment of an honorary discharge allowance on the ground that he was under prosecution in the relevant criminal case at the time of examination by the Honorary Discharge Review Committee. After the judgment of innocence became final and conclusive on November 5, 2018, the Plaintiff filed the instant application on the ground that the judgment of innocence became final and conclusive on November 5, 2018. In light of the background of the instant application and the details of the instant application, it is reasonable to deem that the Plaintiff filed the instant application with the purport that the Plaintiff applied for the payment of an honorary discharge allowance for the reason that the judgment of innocence was final and conclusive in the relevant criminal case after the instant previous disposition. In addition, considering the above details of the instant notification, it is reasonable to deem the instant notification to have rejected the Plaintiff’s application for the payment of a new honorary discharge allowance.

② Article 53-2 of the Military Personnel Management Act, Articles 5 and 6 of the Regulations on the Payment of Honorary Discharge Allowances for Military Personnel (Presidential Decree No. 29950, hereinafter “Payment Regulations”) provide that a person who intends to receive an honorary discharge allowance shall submit an application for the payment of allowances to the Chief of Staff of each service branch through the head of the unit to which he/she belongs within the period for the application for the payment of allowances, and the defendant finally examines and determines the eligibility for the payment of allowances in consideration of the balance between the budget and the respective armed forces upon the recommendation of the Chief of Staff of each service branch. Thus, a person who intends to receive an honorary discharge allowance under relevant

③ Around April 2016, the Plaintiff filed an application for the payment of an honorary discharge allowance and the Defendant made the previous disposition rejecting the application on the grounds that the Plaintiff already fell under the grounds for exclusion from the person eligible for the payment of an honorary discharge allowance. However, even if the previous disposition of refusal becomes final and conclusive after the lapse of the appeal period, the legal relationship with the absence of the right to apply for the payment of an honorary discharge allowance is not finalized, and the Plaintiff may again file an application for the payment unless there are specific provisions regarding the limitation of the period of exercise of the right to apply for the above application, and if such refusal is rejected, it may be filed as a new rejection disposition (see Supreme Court Decision 92Nu17181, Apr. 13, 1993, etc.).

④ In addition, the Plaintiff seeks to dispute the validity of the instant application and the instant notification on the grounds that the judgment of innocence became final and conclusive in the relevant criminal case after the previous refusal disposition. In light of the fact that the system of the honorary discharge allowance for military personnel is characterized as compensation for the disadvantage of discharged soldiers prior to the retirement age, namely, loss of revenues that can continue to work or for the payment of expenses incurred in obtaining new occupation (see Supreme Court Decision 2014Du43196, May 14, 2015), etc., it is reasonable to argue that the change of circumstances are asserted, and that if the Defendant refuses the application for the payment of the honorary discharge allowance, it can be asserted as the subject matter of the appeal litigation when the Defendant refuses the application for the payment of the honorary discharge allowance.

Therefore, this part of the defendant's main defense is without merit.

2) Whether the defendant is qualified

In accordance with the main sentence of Article 13(1) of the Administrative Litigation Act, a revocation suit is a defendant with an administrative agency which has conducted the disposition, etc., unless otherwise provided by other Acts. In principle, an administrative agency which has conducted an administrative disposition, etc., which is the object of the suit, means an

In this case, in full view of the following facts and circumstances recognized by the Health Team, the facts acknowledged earlier, the evidence as mentioned earlier, and evidence Nos. 7 through 11, and the purport of the entire pleadings, it is reasonable to deem that “the Defendant” was eligible to be the Defendant’s notification of this case. Accordingly, this part of the Defendant’s main defense is without merit.

① On November 5, 2018, the Plaintiff filed the instant application with the Ministry of National Defense via the instant website.

② According to Article 7 of the Electronic Government Act, even where the head of an administrative agency, etc. provides that a civil petition, etc. shall be filed in a document, document, document, or other paper form with respect to the civil petition, etc. to be processed by the relevant agency, the head of the administrative agency, etc. may file an application in electronic form (paragraph (1)), and even where the relevant Act and subordinate statutes provides that the processing process of the civil petition, etc. shall be notified in a document, document, document, document, etc., in an electronic document (paragraph (2)). In this case, an electronic document sent by an administrative agency, etc. shall be deemed to have arrived at the addressee when it was entered in the information system, etc. designated by the addressee (Article 28(2)). In addition, in light of the above provisions, once the Plaintiff applied for a civil petition of this case on the Internet homepage of this case through an electronic document, such electronic document (hereinafter referred to as “instant notice”) shall be posted on the Internet homepage and such notification shall be deemed to have been effective (see, e.g., Supreme Court Decision 2019Du3686, Aug., 2019).

③ According to the notice of the result of the civil petition treatment (Evidence No. 7) that printed out the notice of this case, the head of the processing agency stated that the notice of this case is “AF” rather than the defendant. However, as seen earlier, the validity of the notice of this case was effective by posting it on the Internet homepage, and the notice of this case was stated as “Ministry of National Defense”, and the plaintiff did not receive the notice of the result of the civil petition treatment (Evidence No. 7). Thus, in light of the fact that there is no evidence to acknowledge that the plaintiff was served with the notice of the result of the civil petition treatment (Evidence No. 7), and the process of the application of this case was in charge at the Air Force Headquarters, the disposition agency of the notice of this case is the defendant, and it is difficult to regard the disposition agency of the notice of this case as the disposition agency of this case, regardless of the fact that the Air Force Chief of Staff or Air Force Headquarters participated in the process of the application

3) Whether an appeal, other than a party suit, should be filed

In full view of the provisions of Article 53-2 of the Military Personnel Management Act, Articles 2, 5, and 6 of the Payment Regulations, the right to receive honorary discharge allowances does not directly arise pursuant to the provisions of Acts and subordinate statutes, but the right to receive such allowances arises only when the defendant is recognized as a result of the defendant's request after the deliberation by the Chief of Staff to which the person who wants to receive the above allowances belongs, and thus, the person who wants to receive the above allowances first requests recognition of the right pursuant to the related Acts and subordinate statutes, where the defendant refuses a claim for recognition of the right or conducts a disposition to recognize only a part of the claim, the person who wants to receive the above allowances must seek payment of the benefits through an appeal lawsuit against the disposition, and it is not allowed to seek confirmation of the right or payment of the benefits through a party lawsuit against the State without any specific right (see Supreme Court Decisions 93Nu18532, Sep. 15, 195; 2008Du5636, May 27, 2010).

In this case, there is no evidence to acknowledge the fact that the Plaintiff otherwise recognized the specific right to the honorary discharge allowance due to the filing of an appeal suit, etc., it is reasonable to seek revocation of the instant notification as an appeal suit rather than seeking payment of the honorary discharge allowance as a party suit. Therefore, the Defendant’s main defense to this part of the instant notification is without merit on a different premise.

5. Whether the notice of this case is lawful

A. Relevant regulations, etc.

Article 53-2 (1) of the Military Personnel Management Act provides that "Where a person who has served for not less than 20 years as a soldier voluntarily discharges from active service before his retirement age, he may be paid an honorary discharge allowance within budgetary limits." Paragraph (2) of the same Article provides that "Article 24-2 (2) shall apply mutatis mutandis to a person who is discharged from active service pursuant to Article 24-2 (2) and whose remaining period of retirement age is not less than one year, Paragraph (1) shall apply mutatis mutandis." The former part of Paragraph (6) provides that "the scope of the persons eligible for an honorary discharge allowance under the provisions of paragraphs (1) through (3) and the payment procedure shall be prescribed by Presidential Decree." Accordingly, the main sentence of Article 2 (1) of the Payment Regulations provides that "the person eligible for an allowance shall be a soldier who has served for not less than 20 years and falls under any of the following subparagraphs." Article 2 (2) provides that "The Minister of National Defense may restrict the scope of persons eligible for an honorary discharge allowance under the following subparagraphs 2 and the payment procedure for an honorary discharge allowance."

In light of the relevant provisions, the Defendant’s act of determining or excluding a person eligible for the payment of the honorary discharge allowance shall be deemed to fall under discretionary acts that can determine the person eligible for the payment of the honorary discharge allowance after the examination upon the application of the person who voluntarily discharged from active service from among the military personnel who served for not less than 20 years, and officers promoted before the retirement age (see Supreme Court Decision 2009Du14231, Dec. 10, 2009, etc.). However, since the discretionary acts have an inherent limitation that should not be arbitrarily exercised, judicial review of the court is subject to determination of facts, violation of the principle of proportionality and equality, and violation of the purpose of the pertinent act, etc.

B. Determination

In the instant case, considering the following facts and circumstances acknowledged by the health department, the facts acknowledged earlier, the evidence as seen earlier, and the purport of the entire pleadings, the Defendant’s notification of this case rejecting the application for the payment of the honorary discharge allowance without undergoing a substantive examination by the committee for the examination of the honorary discharge allowance is unlawful, solely on the ground that the Defendant was not guilty in the relevant criminal case at the time of the examination of the voluntary discharge from active service, even though the judgment of innocence was finalized in the relevant criminal case.

(1) If a person who intends to receive an allowance first submits an application for allowance to the Chief of Staff through the head of the unit to which he/she belongs within the period of application for the payment of allowance, the Chief of Staff of each service branch shall organize an honorary committee for examination of discharge from active service, examine the person to receive the allowance, recommend the person to be paid the allowance, select the person to be paid, recommend the defendant, and finally approve the defendant (Articles 5, 6, and Article 97 of the Payment

② In a case where the selection of a person selected as a person eligible for the payment of an honorary discharge allowance after deliberation by the Honorary Discharge Examination Committee falls under “a person who is under prosecution for a criminal case” and the selection is revoked, if there is a personnel petition or a court order for the payment of a disposition order even after the date of discharge when a judgment of innocence was rendered after the date of discharge, the person may be recommended as a person eligible for the payment of an honorary discharge allowance without further review by the Honorary Discharge Examination Committee (Article 99(3)2 of the instant Directive). On the other hand, as the Plaintiff, a person who was under prosecution for a criminal case as of the date of the examination for the payment of an honorary discharge allowance as the Plaintiff constitutes a person eligible for the appointment of an honorary discharge allowance pursuant to Article 96(2)2 of the instant Directive, and there was no opportunity to undergo the actual examination by the Honorary Discharge Examination Committee when a judgment of innocence

③ If a judgment of innocence was rendered after the date of the examination of the discharge from active service solely on the ground that the person was not prosecuted for a criminal case at the time of the examination of the discharge from active service, it would result in deprivation of the opportunity to select the person eligible for the payment of the honorary discharge allowance due to the circumstances unrelated to his or her responsibility, such as the case where the person was indicted for a criminal case and the judgment of innocence became final and conclusive after the fact that the judgment of innocence became final and conclusive, and as seen earlier, the honorary discharge allowance has the character of compensation for the disadvantage that the person would have been discharged from active service before the retirement age. It is excessively harsh

(4) According to Article 48 of the Military Personnel Management Act, where an officer, etc. was indicted for a crime punishable by death or imprisonment with or without labor for an indefinite term or for not less than two years, the appointing authority may order a person to be released from a list of candidates for promotion (excluding cases where a summary order is requested) ex officio or at the request of the relevant officer, etc., and where a person retired from office is pronounced not guilty pursuant to paragraph (2), he/she shall not be subject to unfavorable treatment at the time of application of this Act in promotion, assignment, etc. on the ground of temporary retirement (paragraph (5)). Articles 54(2) through 48(2) of the Enforcement Decree of the same Act and Article 31(2) of the Military Personnel Management Act and Article 38(1)1 of the Enforcement Decree of the same Act provide that the person who was released from a list of candidates for promotion shall be reinstated as a matter of course when he/she was released from a list of candidates for promotion, and that such person will not be promoted if he/she was discharged from a final and conclusive after the first.

⑤ Accordingly, when the Plaintiff filed the instant application for the payment of the Honorary Discharge Allowance on the ground that the judgment of innocence became final and conclusive in the relevant criminal case, the Defendant should have actually examined whether the Plaintiff was eligible for the payment of the Honorary Discharge Allowance through the Honorary Discharge Examination Committee, and determined whether to pay the Honorary Discharge Allowance. Nevertheless, the Defendant still refused the application for the payment of the Honorary Discharge Allowance without substantive examination by deeming that the Plaintiff was eligible for the exemption of the Honorary Discharge Allowance, regardless of whether the judgment of innocence became final and conclusive solely on the ground that the Plaintiff was prosecuted for a criminal case at the time of the examination of the Honorary Discharge Allowance. This is too harsh to the Plaintiff,

Therefore, the notification of this case shall be revoked as it is unlawful, and the plaintiff's assertion is with merit.

6. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Park Jong-sung (Presiding Judge)

(1) According to Article 6(3) of the Enforcement Decree of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), where the information requested to be disclosed is information not owned and managed by a public institution, or the details of a request for information disclosure, such as petition and quality, cannot be deemed as a request for information disclosure under this Act and this Decree, and can be treated as a civil petition under the Civil Petitions Treatment Act, a civil petition may be treated.