In a case where Gap's son who died around 1950 around 1950 and Eul applied for the recommendation of Gap as a person of distinguished services to the national independence of the 3 and 1st category on the ground that "A participated in the 3 and 1 campaign to be a student and was arrested, detained, and convicted of guilty," but the Minister of Patriots and Veterans Affairs notified Eul of the result of a public examination to the effect that Gap's son was not included in the person of distinguished services to the national independence on the ground that "the person of distinguished services to the national independence was examined for the reward of the person of distinguished services to the national independence" but was not included in the person of distinguished services to the national independence, the case holding that the above notification

Although Party A’s children who died around 1950 around the 1950, applied for the recommendation of Party A as a person eligible for the reward of the persons of distinguished services to the national independence in Section 3 and Section 1 on the ground that Party B (“A student participated in the March 1st Movement and was arrested, detained, and convicted,” it is a matter of notification to the Minister of Patriots and Veterans Affairs that the Minister of Patriots and Veterans Affairs notified Party B of the fact that the person of distinguished services to the national independence was not eligible for the reward on the ground that the person of distinguished services to the national independence was found to have been aware of his/her status

If the Minister of Patriots and Veterans Affairs refuses to recommend a reward, he/she shall be deemed to have the right to request the Minister of Patriots and Veterans Affairs to act in accordance with the laws and regulations or sound reasoning so that he/she may request the Minister of Patriots and Veterans Affairs to make a decision on whether to recommend a reward after a fair review in accordance with reasonable standards, and give the Minister of Patriots and Veterans Affairs an opportunity for judicial review so that the procedures of reward to be judged before the State Council and the President are no longer proceed, and the State Council and the President's opportunity to obtain a judgment on whether to grant a reward is a bereaved family member, etc., lose the opportunity to obtain recognition of the status of the persons of distinguished services to the national independence, and thus it constitutes an exercise of public authority, which directly affects the rights and duties or legal status of the persons of distinguished services to the national independence, or an equivalent administrative action, and thus, the above notification constitutes an administrative disposition subject to the appeal litigation, but the Minister of Patriots and Veterans Affairs has no evidence to acknowledge that the person of distinguished services to the State of 3rd National Assembly and Home Affairs was not entitled to participate in the above 1 military movement.

Article 32(6) of the Constitution of the Republic of Korea; Articles 4, 6(1) and (2) of the Act on the Honorable Treatment of Persons of Distinguished Service to Independence; Articles 2(1)1, 12, and 27 of the Administrative Litigation Act

Plaintiff (Attorney Park Jae-hwan et al., Counsel for plaintiff-appellant)

The Minister of Patriots and Veterans Affairs

Seoul Police Agency Decision 2018Guhap3974 decided November 2, 2018

October 16, 2019

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The defendant's rejection disposition against the plaintiff on February 20, 2018 against the person of distinguished services to national independence in March 1, 2018 is revoked (the plaintiff stated in the purport that the plaintiff is revoked of the rejection disposition against the plaintiff's application for reward, but it is so decided).

1. Basic facts

A. On October 30, 2017, the Plaintiff filed an application with the deceased on the recommendation of the deceased as a person eligible for the reward of persons of distinguished services to the national independence 3 and 1 on the grounds that the deceased participated in the 3-1st campaign against the Defendant as a student of ○○ High School, and was arrested and detained, and was convicted of the death, around September 30, 1950.

B. The Defendant is the head of the Ministry of Patriots and Veterans Affairs established under the jurisdiction of the Prime Minister to take charge of the affairs pertaining to the veterans' compensation and protection of persons who have rendered distinguished services to the State and their bereaved family members, and the promotion of veterans' honor. The Defendant notified the Plaintiff of the results of the examination that the deceased's meritorious services were not notified of the eligibility for the award on the grounds that the deceased participated in the March 13, 2017 on the ground that there is any error in the performance of duties after the Deceased participated in the March 2018, on February 20, 2018, on the ground that the deceased was serving as the office clerk of the Korean National Railroad, who is the direct vice-general of the Korean National Assembly (hereinafter "Public Service Deliberation Committee"). The Defendant notified the Plaintiff of the results of the examination that the deceased's meritorious services were not notified of the eligibility for the award on the grounds that "the results of the public service examination of the persons of distinguished services to the national independence on March 1, 2018" (hereinafter referred to as "the instant notification").

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 12, 13, 14, Eul evidence Nos. 1 through 4, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's assertion

The Defendant’s main defense is as follows. The public examination conducted by the Defendant to recommend a person of distinguished services to the national independence to the Ministry of the Interior and Safety is only one of the series of procedures to determine whether to grant a decoration to the President, and does not affect the Plaintiff’s rights and obligations or legal status. Therefore, the instant notification is merely a mere notification of the fact leading to the results of public examination, and does not constitute an administrative disposition subject to appeal litigation. Moreover, the Plaintiff, a bereaved family member, is not the other party to the conferment of decoration, and is merely in a position to receive or preserve orders, etc. as a factual act, and thus, there is no right to request the Plaintiff to grant a decoration. Accordingly, the instant lawsuit is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Legislative purport and applicable persons of the Act on the Honorable Treatment of Persons of Distinguished Service to Independence

A) Legislative intent

Article 34(1) of the Constitution of the Republic of Korea declares that “the Republic of Korea shall succeed to the legal services of the provisional Government of the Republic of Korea established through the three and one movement,” thereby declaring that “the Republic of Korea is achieved based on the contribution and sacrifice of an independent movement fighting against Japan,” and furthermore, “the safety, freedom and happiness of our and our descendants shall be ensured smoothly.” Article 34(2) of the Constitution provides that “All citizens shall have the right to enjoy a life worthy of human dignity.” Article 32(6) provides that “The State shall have the duty to endeavor to promote social security and social welfare.” Article 32(6) provides that “The family members of the persons of distinguished services to the State and the persons of distinguished services to the State shall be given the opportunity to work preferentially as prescribed by Act.” Therefore, the Constitution of the Republic of Korea stipulates that “The bereaved family members of the persons of distinguished services to the State, including the persons of distinguished services to the State, shall be given the opportunity to work in accordance with the Constitutional Court en banc Order 200Hun-Ba160, Jun. 19, 2019, etc.

Accordingly, the Act on the Honorable Treatment of Persons of Distinguished Services to the national independence (hereinafter “Act on the Honorable Treatment of Persons of Distinguished Services to the national independence”) was enacted with the aim of promoting the stabilization of life and welfare of the persons of distinguished services to the national independence and their bereaved family members, and enhancing the national spirit by encouraging the patriotism of the people (Article 1). Since the Republic of Korea, which succeeded to the legal tradition of the provisional government of the Republic of Korea, was established based on the sacrifice and contribution of the persons of distinguished services to the national independence, this sacrifice and contribution shall be constantly respected as the model of noble patriotism by us and our descendants, and substantial compensation shall be granted to the persons of distinguished services to the national independence and their bereaved family members so that they may maintain and guarantee the honorable lives of the persons of distinguished services to the national independence in accordance with the degree of their sacrifice and contribution (Article 2), and the State and local governments shall prepare the basic policy for the sake of Article 2 by succeeding to and developing the patriotism of the persons of distinguished services to the national independence and enhancing the national spirit.”

B) Persons subject to application

The Act on the Persons of Distinguished Services to the national independence stipulates that the bereaved family members or their families shall be given honorable treatment under the Act on the Honorable Treatment of the Persons of Distinguished Services to the national independence (Article 4), and the deceased shall, in principle, apply for the registration of the persons of distinguished services to the national independence under the Act on the Honorable Treatment of the Persons of Distinguished Services to the national independence after fighting against the seizure of national rights by Japanese during the period from August 14, 1945 or fighting to the seizure of national rights, and the persons who have received the Order of Distinguished Services to the national independence by 5 or the Presidential Decree (Article 4 subparagraph 1), among those who have received the Order of Merit, the Order of Merit, the National Foundation Medal, or the Order of Distinguished Services to the national independence to the national independence under the Act on the Honorable Treatment of the Persons of Distinguished Services to the national independence, and the persons who have received the Honorable Treatment of the Persons of Distinguished Services to the national independence by the Commissioner of Patriots and Veterans Affairs shall be determined by Presidential Decree.

Therefore, the persons who intend to acquire the right to receive compensation by becoming the persons of distinguished services to the national independence shall meet the requirements for the persons of distinguished services to the national independence. As seen above, the persons of distinguished services to the national independence shall be the persons of distinguished services to the national independence, and the persons of distinguished services to the national independence shall be the persons of distinguished services to the national independence, who have opposed to the seizure of national rights by a Japanese system or participated in a Japanese independence movement, and who have received the Order of Merit, the Order of Merit for National Foundation, or the Presidential Awarding as a result of their meritorious services. Therefore, in order to become the persons

C) Procedure for determination of decoration

(1) General procedures

(A) Article 80 of the Constitution provides that “The President shall award an order or any other medal under the conditions as prescribed by the Act.” Accordingly, the Awards and Decorations Act aims to provide for matters concerning decoration for citizens of the Republic of Korea or foreigners who have rendered outstanding meritorious services in the Republic of Korea (Article 1).” (Article 2) The criteria for decoration are determined by the Presidential Decree, taking into account the meritorious services of the recipients, the degree of impact on the State and society, status, and other matters (Article 3). Article 80 of the Constitution provides that “The Order of Merit and any medal of the Republic of Korea shall be awarded to a person who has rendered outstanding meritorious services in the Republic of Korea, who has rendered outstanding meritorious services in the Republic of Korea, as a citizen of the Republic of Korea or a native country, and Article 9 subparagraph 2, Article 11, Article 11, Article 2 of the Constitution provides that a person who has rendered outstanding meritorious services in the Republic of Korea shall be awarded the Order of Merit after deliberation by the State Council (Article 7).

(나) 서훈 결정은 최종적으로 대통령의 권한이나, 상훈법 제5조 에서는 서훈의 추천은 중앙행정기관의 장(대통령 직속기관 및 국무총리 직속기관의 장을 포함한다), 국회사무총장, 법원행정처장, 헌법재판소사무처장 및 중앙선거관리위원회사무총장이 한다고 규정하고 있고( 제1항 ), 서훈의 추천은 대통령령으로 정하는 바에 따라 공적심사를 거쳐야 한다고 규정하고 있다( 제3항 ). 그 위임에 따른 상훈법 시행령에서는 서훈 추천 대상자의 공적 및 서훈 추천의 적정성 등을 심사하기 위하여 상훈법에 따른 서훈의 추천권한이 있는 자 등 소속으로 공적심사위원회를 둔다고 규정하면서( 제2조 제1항 ), 서훈의 추천권자가 서훈을 추천할 때에는 공적심사위원회의 심사를 거쳐 서훈 예정일 30일 전까지 공적조서를 행정안전부장관에게 제출하여야 한다고 규정하고 있다( 제3조 제2항 ).

(2)Procedure of award to the persons of distinguished services

(A) The method of awarding prizes to the persons of distinguished services to the national independence is a method of “an application award” by the Government to which the person of distinguished services to the national independence was awarded a reward after verifying whether the person of distinguished services to the national independence was true or not and whether the person of distinguished services to the national independence was awarded a reward upon receipt of the required documents. On the basis of the materials submitted by the applicant and relevant materials discovered by the Ministry of Patriots and Veterans Affairs, such as the degree of contribution and sacrifice to the public affairs subject to examination, the degree of sacrifice and sacrifice that the person was commissioned by the defendant to the national independence, the status at the time of the independent movement, and the degree of happiness until the time of death, etc., the determination of whether the person of distinguished services to the national independence was awarded a reward and the degree of decoration shall be made after verifying the person of distinguished services to the national independence, based on the materials presented by the applicant and relevant materials discovered by the Ministry of Patriots and Veterans Affairs (Operation Regulations of the Public Service). The defendant recommended the person of distinguished services to the Ministry of Public Administration and Security under Article 5 of the Enforcement Decree, and Article 8.

(B) The Ministry of Patriots and Veterans Affairs provides the guidelines for the performance of veterans affairs and the civil petition manual for veterans affairs for the discovery and reward of the persons of distinguished services to the national independence. The specific details are as follows.

◎ 포상은 연간 3회 이루어지도록 한다(3·1절, 광복절, 순국선열의 날)

◎ 정부 주도의 독립유공자 발굴·포상과 신청에 따른 포상을 모두 주도한다.

◎ 포상절차는 다음과 같다.

본문내 포함된 표 독립운동 활동자 또는 유족의 포상자료 제출 / 정부 주도 발굴 ⇒ 공적심사위원회 심사 ⇒ 행정안전부에 서훈 추천 ⇒ 국무회의 심의 ⇒ 대통령 재가 ※ 확정 후 제출인에게 포상 결과 개별 통지

◎ 신청에 따른 포상은 심사대상자의 인적사항과 행적, 공적 내용을 알고 있는 사람은 누구나 언제나 신청 가능하고, 보훈지청이나 공훈발굴과에 방문 및 우편접수 방법으로 신청이 이루어진다. 그 구체적인 접수절차는 다음과 같다.

A person shall be appointed.

◎ 국가보훈처는 독립유공자 포상신청서 양식을 마련하여 포상신청인으로 하여금 그 양식에 따라 독립유공자공적조사서, 독립유공자평생이력서, 개인정보이용 및 제공사전동의서 및 유의사항 등을 작성하여 제출하도록 하고 있고, 독립유공자평생이력서에는 출생에서 현재(사망)까지 독립운동 내용 및 사회활동, 경제활동, 학력, 경력 등을 연대순으로 자세히 기재(사회활동의 경우 소속기관, 직책 등 명시), 누락된 기간이 없도록 연도순으로 기재하되 신청인이 심사대상자의 행적을 자세히 알 수 없는 기간은 ‘00년~00년 구체적 행적 모름’으로 명시하도록 하고 있다. 그 외에 포상신청 제출자료 중 인적사항 입증자료에 관하여 ‘◈ 심사대상자의 본적, 주소, 생몰기간 등의 인적사항과 신청인과의 관계를 확인할 수 있는 자료, ◈ 가족관계등록부(구 민적부, 구 제적등본), ◈ 족보(가급적 광복 이전 족보)는 표지·해당내용·간행연도 표기면을 복사하여 제출, ◈ 신청인의 주민등록등본’이라고 정하고, 공적 입증자료에 관하여 ‘◈ 독립운동 공적을 객관적으로 입증할 수 있는 원전자료를 원칙으로 함, ◈ 입증자료는 원본제출을 원칙으로 하되, 복사본 제출 시에는 자료명, 해당 내용, 간행연도가 표시된 사본을 제출’이라고 정하고 있다. 독립유공자 포상신청서 양식은 국가보훈처 운영의 홈페이지에 민원사무서식으로 올라와 있다.

◎ 국가보훈처 소속 공훈발굴과에서 신청인이 제출한 자료를 확인하고, 이미 수집된 자료와 데이터베이스 자료를 검토하여 입증자료를 보완한다.

◎ 포상 시점 및 심사 시기·절차 등을 신청인에게 상세히 안내하여 공적심사 지연에 대한 불만을 최소화한다.

◎ 공적심사 결과는 계기별 포상일 전 공훈발굴과에서 신청인에게 개별통지한다.

◎ 신청인이 공적조사서를 작성함에 있어 상세하게 작성하도록 안내한다.

(d)Honorable treatment of the persons of distinguished services to national independence

Chapter II of the Act on the Persons of Distinguished Services to the National independence stipulates the honorable treatment for the persons of distinguished services to the national independence and their bereaved families or families. The detailed details

(1) When the State, local governments, other public organizations, and schools at all levels perform the important events, such as national holidays and commemoration days, they must pay silent attention to the patriotic veterans as a part of the national ceremony, and the invited persons of distinguished services to the national independence must be given honorable treatment in the ceremony corresponding to them (Article 10).

(2) With respect to the persons of distinguished services to the national independence, the Minister of Patriots and Veterans Affairs shall pay the veterans' benefits classified into the compensation, lump-sum payment, and allowances for adjusting the living conditions, and shall prohibit the seizure of the entitlement to veterans' benefits (Article 11 to Article 14). Moreover, the Minister of Patriots and Veterans Affairs may also grant subsidies for the stabilization of living in consideration of the standard of living to the children or grandchildren of the persons of distinguished services to the national independence who do not receive the compensation under

(3) The State should provide education assistance so that the persons of distinguished services to the national independence can receive the necessary education at the educational institution. The specific details thereof are required to attend the educational institution for the persons of distinguished services to the national independence more than a certain percentage of the tuition fees, etc. and to exempt or pay educational subsidies (Articles 15, 22-2, 23 through 25, 25-2, and 26 of the Act on Persons of Distinguished Services to the national independence).

(4) The State shall provide assistance to the persons of distinguished services to the national independence, etc. to the persons of distinguished services to the national independence, the obligation to employ the State agencies, etc., the obligation to preferentially employ enterprises, etc., the obligation to preferentially employ veterans, special employment of persons of distinguished services to the national independence, vocational training, and development of abilities (Article 16, Articles 29(3), 30, 31(2) through (5), 31-2, 32, 33, 33-2, 33-3, 34, 34-2, 35-2, 36, 37, 37-2(1) through (3), 38(2) and (3), and 39).

(5) When the State, local governments, etc. permit or entrust the operation of stores or the installation of vending machines for the sale of daily necessities, such as foodstuffs, office supplies, newspapers, etc., within public facilities under their jurisdiction, the State, local governments, etc. shall preferentially reflect the application of the persons of distinguished services to national independence registered and determined (Article

(6) The State shall provide medical assistance to the persons of distinguished services to the national independence. If the persons of distinguished services to the national independence suffers from a disease, the State or local governments may provide medical treatment or entrust other medical institutions prescribed by Presidential Decree. In principle, the State bears the burden of medical treatment expenses. The bereaved families or families of the persons of distinguished services to the national independence may provide medical treatment at the veterans hospital or entrust other medical institutions with medical treatment, and reduce or exempt medical treatment expenses (Article 17 and Article 45 of the Act on Persons

(7)The persons of distinguished services to national independence, etc. may receive loans from the State on a long-term and low-income basis, such as farmland purchase loan, housing loan, business loan, and livelihood stabilization loan (Article 18, Articles 48 and 56, and Articles 59 through 62 of the Act on Persons of Distinguished Services to the State).

(8) The State or a local government may preferentially supply housing constructed by the State or a local government or constructed and supplied by the State or a local government to the persons of distinguished services to national independence who meet certain requirements, or with the funding of the State or a local government or the Housing and Urban Fund under the Housing and Urban Fund Act, as prescribed by Presidential Decree, taking into account the homeless period, living standards, etc.

(9) In addition, the Act on Persons of Distinguished Services to the State shall apply to the persons of distinguished services to the State except as otherwise provided for in the Act on the Persons of Distinguished Services to the State when giving honorable treatment (Article 19).

2) Whether the instant lawsuit is lawful

A) If an administrative agency’s refusal to take action against a citizen’s affirmative action constitutes an administrative disposition subject to appeal litigation, such refusal must be an exercise of public authority or an equivalent administrative action, and the refusal must cause any change in the applicant’s legal relationship, and the citizen must have the right to file an appeal under the relevant law or sound reasoning (see, e.g., Supreme Court Decisions 9Nu14036, Jul. 10, 198; 2007Du1316, Oct. 11, 207; 2007Du1310, Oct. 27, 2007). The existence of right to file an appeal, which serves as a premise for recognizing a disposition of rejection, is determined abstractly by examining the applicant’s right to file an appeal without considering who is the applicant’s right and duty in a specific case, and it does not mean the right to accept an appeal against an administrative agency beyond the right to receive a simple response pursuant to the application, and thus, it should be determined that an administrative agency’s refusal of an appeal against an administrative disposition should be determined within 160.

B) Considering the aforementioned evidence and the facts acknowledged as well, and the following facts and circumstances that can be acknowledged by the respective entries and arguments in Articles 5 through 8 and the purport of the entire pleadings, the instant notice constitutes an administrative disposition subject to appeal litigation, and it is reasonable to deem that the Plaintiff has standing to sue against the Plaintiff. Therefore, the instant lawsuit is lawful. The Defendant’s main defense on a different premise is without merit.

◎ 국가는 일제로부터 조국의 자주독립을 위하여 공헌한 독립유공자와 그 유족에 대하여 응분의 예우를 할 헌법적 의무를 지고, 이러한 헌법적 의무를 실현하기 위하여 독립유공자법이 제정되었다.

◎ 독립유공자법은 독립유공자 등의 영예로운 생활이 유지·보장되도록 ‘실질적으로 보상’하는 것을 그 예우의 기본이념으로 하고 있고, 이에 따라 의식상의 예우 외에도 독립유공자 등에 대한 보훈급여금(보상금, 사망일시금, 생활조정수당), 생활안정을 위한 지원금 등의 금전적 지원과 교육지원, 취업지원, 생업지원, 의료지원, 대부지원, 주택의 우선공급 등의 다양한 지원을 마련함으로써 ‘실질적’인 예우가 이루어질 수 있도록 하고 있다.

◎ 그런데 앞서 본 것처럼 독립유공자로 인정받기 위한 전제는 상훈법상 건국훈장 등을 받는 것이고, 영전 수여 여부는 최종적으로 대통령의 권한이지만 독립유공자 포상절차는 정부 주도의 발굴인지 신청에 따른 것인지를 불문하고 피고 산하 공적심사위원회의 심사를 거쳐 피고의 추천을 받는 것을 필수적인 절차로 하고 있다.

◎ 피고는 독립유공자 포상신청을 한 원고에게 ‘망인에 대한 공적심사위원회의 공적심사 결과 포상대상에 포함되지 못하여 포상추천을 할 수 없다’는 취지의 이 사건 통지를 하였다. 피고의 이러한 포상추천 거부는 대통령의 권한인 영전 수여를 위한 일련의 절차 중 하나로서 그 자체가 영전의 수여 여부를 결정하는 효력을 가지는 것은 아니나, 이로써 망인에 대한 포상절차가 더는 진행되지 아니하게 되어 망인의 유족인 원고로서는 국무회의 및 대통령의 영전 수여 여부 판단을 받을 기회를 빼앗기게 되고, 이에 따라 독립유공자 등으로서의 지위를 인정받을 기회를 상실하여 독립유공자법에서 정한 실질적인 보상을 받을 길을 원천적으로 차단당하게 된다. 따라서 이 사건 통지는 국민의 권리의무 내지 법률적 지위에 직접적인 영향을 미치는 공권력의 행사 또는 이에 준하는 행정작용이라고 봄이 타당하다.

◎ 나아가 앞서 본 상훈법령 및 보훈업무 시행지침, 보훈업무 민원편람 등에 의하면, 독립유공자 포상방법에는 정부가 공적을 발굴 조사하여 포상을 실시하는 ‘발굴포상’과 독립운동가 본인이나 그 후손 등이 정부에 공적사실을 제출하면 그 사실 여부를 검증한 후 독립유공자로 포상하는 ‘신청포상’ 방법이 있는데, ‘신청포상’의 경우 독립운동 활동자 또는 유족 등이 언제든 포상자료를 제출하면서 신청할 수 있되, 피고가 마련한 독립유공자 포상신청서 양식에 따라 독립유공자공적조사서, 독립유공자평생이력서, 개인정보이용 및 제공사전동의서 및 유의사항 등을 작성하여 제출하도록 하고 있다. 나아가 ‘신청포상’이 있는 경우 피고는 공적심사위원회를 개최하여 공적을 심사한 후 행정안전부에 서훈을 추천하고, 그 후 국무회의 심의, 대통령의 재가를 거치며, 피고는 포상 시점 및 심사 시기·절차 등을 신청인에게 상세히 안내하여 공적심사 지연에 대한 불만을 최소화하고, 공적심사 결과는 계기별 포상일 전 신청인에게 개별통지하도록 하고 있다. 이처럼 관련 법규에서 신청인이 언제든 ‘신청포상’을 신청하면 피고는 공적심사위원회 심사를 거쳐 행정안전부에의 추천 여부를 결정하고 공적심사 결과를 신청인에게 통지하도록 하고 있으므로 신청인에게는 피고에 대하여 공적심사위원회를 통하여 합리적인 기준에 의한 공정한 심사를 거쳐 포상추천 여부를 결정하도록 그 행위발동을 요구할 법규상 또는 조리상의 신청권이 있다고 봄이 타당하다. 이 경우 신청인이 피고에 대하여 포상추천을 반드시 하여달라고 요구할 권리를 가지는 것은 아니라고 하더라도, 앞서 본 것처럼 거부처분의 처분성을 인정하기 위한 전제요건이 되는 신청권의 존부는 신청인이 그 신청에 따른 단순한 응답을 받을 권리를 넘어서 신청의 인용이라는 만족적 결과를 얻을 권리를 의미하는 것은 아니고, 구체적으로 그 신청이 인용될 수 있는가 하는 점은 본안에서 판단하여야 할 사항이므로 신청인에게 신청권이 있다고 보는 데 방해가 되지 아니한다.

◎ 만약 피고의 주장과 같이 이 사건 통지가 단순한 사실의 통지에 불과하여 항고소송의 대상이 될 수 없다고 본다면, 공적심사위원회 또는 피고에게 사실오인이나 비례·평등의 원칙 위배, 당해 행위의 목적 위반이나 동기의 부정 등 재량권의 일탈·남용이 있는 경우에도 신청인은 이를 다툴 방법이 없게 되어 적법한 권리나 법률적 지위를 인정받지 못하게 될 우려가 있고, 이를 방지하기 위하여 대통령의 영전 수여 이전에 이루어지는 공적심사위원회나 피고의 공정한 심사 여부에 관한 사법심사의 필요성이 있다.

◎ 따라서 이 사건 통지는 망인의 유족인 원고의 권리의무 내지 법률적 지위에 직접적인 영향을 미치는 공권력의 행사 또는 이에 준하는 행정작용에 해당하고, 서훈 수여의 상대방인지 여부와 관계없이 원고에게는 망인의 유족으로서 피고에 대하여 합리적인 기준에 의한 공정한 심사를 거쳐 포상추천 여부를 결정하도록 그 행위발동을 요구할 법규상 또는 조리상 신청권이 있다고 봄이 타당하며, 위법한 심사가 이루어질 경우 이를 다툴 수 있도록 사법심사의 기회를 부여하는 것이 헌법의 정신과 그에 따른 관련 법령의 취지에도 부합한다.

3. Whether the notice of this case is lawful

A. The Plaintiff asserts as follows. The Deceased participated in ○○ High School student in 1919, and was arrested, detained, and convicted. The Deceased served as the last public official of the Republic of Korea in order to promote the Japanese colonial era and to promote the development of the Japanese colonial period from 1931 to 1938. The Deceased continued an independent movement, such as providing an independent military fund to the 1940s and receiving a receipt, and 1) receiving a sonship. The Deceased worked as the ○○ High School student in 1919, and was arrested and detained on November 30, 194, and was arrested in North Korea on September 30, 1950, during the 6 and 25-25-20s, and thus, the Deceased was subject to the revocation of the deceased’s recommendation as the victim of the Korean national independence and the Korean national independence. The deceased’s recommendation should be revoked.

B. In the judicial review of discretionary acts, the court shall examine only whether the act in question deviates from or abused the discretionary power without drawing a reader’s conclusion, taking into account the room for determining the public interest based on the discretion of the administrative agency. The examination of whether the act in question deviates from or abused the discretionary power is subject to the determination of facts, violation of the principle of proportionality and equality, violation of the purpose and motive of the act in question, etc. (see, e.g., Supreme Court Decisions 98Du17593, Feb. 9, 201; 2010Da39413, Sept. 9, 2010).

The State has a duty to properly attract the persons of distinguished services to the national independence and to provide the bereaved family members or their families with honorable treatment corresponding to their contribution. However, the specific procedures for recognition of the persons of distinguished services to the national independence shall be deemed to fall under the area of legislative discretion unless the legislators violate the purpose of the Constitution. The recommendation for decoration under the Awards and Decorations Act was made through the public examination of the relevant candidates, and the decision of passing such public examination depends on whether the relevant candidates may be recognized as the persons of distinguished services to the national independence. In determining this, the State has a discretionary discretion (see Constitutional Court en banc Decision 2004Hun-Ma859, Jun. 30, 2005).

C. The Defendant, through the general standards for the examination of meritorious deeds for persons of distinguished services to the national independence (hereinafter “standards for the examination”), provides for persons eligible for a reward, consideration in the examination, and general standards for rewards. In light of the form, content, etc. of the criteria for the exercise of discretionary power, the Defendant’s intent should be respected as far as possible, unless it is deemed that the criteria are objectively unreasonable or inappropriate (see, e.g., Supreme Court Decisions 2011Du28783, Nov. 14, 2013; 2012Du1525, Jun. 26, 2014).

According to the criteria for examination, a person eligible for a reward shall have contributed to an active movement, be confirmed from the original materials of the independence movement in principle, and there shall be no problem of conduct until his or her death. A person determined as responsible for the loss of national authority by serving at least a higher level in lieu of the time of each national treaty, such as Japan-friendly group activities, or cageage at the time of the relevant treaty, etc. A person determined as responsible for the loss of national authority, who held office in the Japanese colonial rule organization or related organization, or directly or indirectly cooperate with the colonial rule, or a person determined as eligible for a reward under the Awards and Decorations Act, shall be excluded from the person eligible for a reward. Also, the consideration of the review is a balance between the degree of contribution and sacrifice of the independence movement, the historical significance of the independence movement, the status and role of an already awarded organization, the degree of participation in the independence movement, status at the time, influence on the independence movement at the time, etc., and the criteria for reward should be determined by the Public Examination Committee.

D. In full view of the purport of the entire pleadings, the following facts can be acknowledged as follows: Gap evidence Nos. 1 to 7, 11, Eul evidence Nos. 2, 3, and 4 (including each serial number).

On March 1, 1919, ○○ High School student was arrested and detained by participating in the March 1st, 1919, ○○ High School student, and on November 6th, 1919, ○○ High School student was sentenced to a suspended sentence of 3 years on the 6-month imprisonment for violating the Security Act (90 days the number of remaining days was included in the principal sentence).

○ After that, from 1931 to 1938, the Deceased worked as a railroad public official of the Republic of Korea under the General Government of Chosun-do as a railroad public official of the Republic of Korea.

E. The deceased participated in the March 1 Movement and was arrested and detained, and was convicted of conviction, and thereafter served as the Secretary of the Korean National Railroad in the position of the Ministry of Food and Rural Affairs, which is the organization for colonial rule, and according to the criteria for the defendant's exercise of discretionary authority, the subject of reward should not have any operational problems until the time of death, and shall not be included in the case where the deceased was employed in the organization for colonial rule or related organizations. Meanwhile, there is no objective evidence to support the deceased's family in relation to the fact that the deceased supported the independence movement even after the March 1 Movement. Accordingly, in accordance with the criteria for review, the defendant's notification of this case cannot be deemed to have violated the principle of mistake or proportionality and equality, and the purpose or motive of the relevant act cannot be deemed to constitute deviation and abuse of discretionary authority. The plaintiff's assertion on other premise is without merit.

4. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance which dismissed the lawsuit of this case is unfair. However, in the case of this case where only the plaintiff appealed, the judgment of the court of first instance cannot be revoked and the judgment dismissing the plaintiff's claim is not possible. Thus, the plaintiff's appeal is dismissed.

[Attachment] Relevant Statutes: omitted

Judges Kim Dong-ok (Presiding Judge)

Note 1) A mushroom gun with a hole of shots.