(영문) 서울행정법원 2017.4.20. 선고 2016구합9824 판결

B. On September 19, 2016, the Plaintiff became aware of the fact that the recommendation of retirement rewards is limited in accordance with the Seoul Special Metropolitan City’s Guidelines for Government Rewards in 2016 due to reasons for reprimanded by Seoul Special Metropolitan City in relation to receipt of money and valuables.

C. Accordingly, from September 2016 to December 2016, the Plaintiff filed a civil petition stating that “A reprimand against the Defendant is merely a case in which the Plaintiff was donated KRW 20,000 to the head of a local civil defense unit for the smooth performance of his/her duties as a person responsible for civil defense, and that the Plaintiff already received amnesty, and that 30,000 won is able to be received from the Act on the Prohibition of Improper Solicitation and Graft, Etc. (hereinafter “Improper Solicitation and Graft Act”) enforced from September 9, 2016.” As such, the Plaintiff filed a civil petition that “a request for the Plaintiff to be selected as a person eligible for retirement reward by reflecting these circumstances even the criteria for the restriction on recommendation of the government’s work guidelines in 2016.”

D. However, on December 12, 2016, the Defendant sent a reply to the effect that, even if he was pardoned, he did not recommend him as a person subject to retirement rewards in cases where he was subject to disciplinary action due to major criticism, such as acceptance of money and valuables, and that, the Improper Solicitation and Graft Act and the Government Monetary Rewards Guidelines differ in their purpose and object, it is difficult to apply the scope of the value of money and valuables, etc. to the criteria for restrictions on the recommendation of the Government Monetary Rewards Guidelines to the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 5, Gap evidence 7 and the purport of whole pleadings

2. Whether the lawsuit of this case is lawful

(a) Relevant statutes;

It is as shown in the attached Form.

B. Determination

1) Details of the relevant legislation

Article 80 of the Constitution of the Republic of Korea provides that "the President shall award a decoration or other medal as prescribed by the Act." According to Article 5 (1) and (2) of the Awards and Decorations Act, the head of a central administrative agency, etc. shall recommend a decoration, but the defendant shall recommend a decoration that does not fall under the jurisdiction of the person who has the right to recommend as provided in paragraph (1)." Article 7 of the Awards and Decorations Act provides that "the President shall make a decision after deliberation by the State Council." In addition, according to Articles 8 and 9 of the Government Awarding Regulations, the commendation that the President or the Prime Minister intends to recommend a commendation shall consult with the defendant in advance, and the person who has the right to recommend a commendation shall submit a public protocol to the defendant after examination by the Presidential or the Prime Minister, and the defendant shall grant the commendation to the person who has the right to recommend a commendation after the process approved by the President or the Prime Minister.

2) Determination

The Plaintiff asserts to the effect that the Defendant’s failure to recommend the Plaintiff as a person eligible for retirement benefits is illegal, despite the fact that the value of money, valuables, etc. received is set at KRW 30,000, which was implemented from September 28, 2016.

However, considering the following circumstances, even if the Defendant did not recommend the Plaintiff as a person subject to retirement rewards in accordance with the criteria for restrictions on recommendation of the Government Rewards Guidelines in 2016, it cannot be deemed that the Defendant constitutes a disposition subject to administrative litigation.

① Decoration is merely an internal act or interim disposition of an administrative agency, since the official commendation of the President or the Prime Minister, which belongs to the former authority of the President or the Prime Minister, belongs to the former authority of the Prime Minister, and only the head of a central administrative agency, etc. has the authority to recommend decoration, etc.

② The government reward service guidelines are set by the Awards and Decorations Act and the Enforcement Decree of the same Act, and are internal standards prepared by the Ministry of Public Administration and Security in the work process guidelines for recommending a person eligible for the issuance of an order. It is only effective within the administrative organization, and it is difficult to deem that external binding force is recognized. In addition, the government reward service guidelines cannot be deemed as changing the basic rights of the people who intend to receive a decoration and other legal status or affecting the legal status of the people (see Constitutional Court Order 2008Hun-Ma367, Jul. 30, 2009).

(3) The Plaintiff’s assertion may be deemed to have sought revocation of the rejection disposition since the Defendant expressed his/her intention as a person eligible for retirement rewards. However, the President’s award of orders and other decorations to a person eligible for a decoration pursuant to the Constitution and the Awards and Decorations Act, which is a highly political act that serves as the head of the State, shall be decided by the President at his/her own discretion through deliberation of the State Council. In light of the fact that the commendation is given to a foreigner within Korea who has contributed to the State or a foreigner who has contributed to society, or a person who has contributed to an education, competition, or works, etc. who has contributed to the State or a society, and thus is a beneficial and beneficial measure that is recognized to have broad discretion, it is difficult to view that the Plaintiff falls under the qualification requirements set forth in the government reward work guidelines, and thus, the Plaintiff is not subject to a disposition of refusal, even if the Defendant refused to recommend the person eligible for retirement rewards, this does not constitute an appeal litigation.

C. Sub-committee

The instant lawsuit is unlawful.

3. Conclusion

In order to dismiss the instant lawsuit, it is so decided as per Disposition.