(영문) 서울행정법원 2020.7.23.선고 2019구합89579 판결

On September 27, 2019, the Defendant confirmed that the 2019 Majors Disposition against the Plaintiff was null and void, and that the Defendant’s 2019 Majors Disposition against the Plaintiff was revoked on November 1, 2019.

Reasons

1. Details of the disposition;

A. On November 1, 2009, the Plaintiff was selected on October 1, 2019 by the Committee for Selection of Officers Eligible for Promotion, who served as Second Lieutenant, and was published on July 2, 2018.

B. On September 16, 2019, the head of the 55th volunteer soldier group issued a disciplinary measure for three months of suspension from office (hereinafter “instant disciplinary measure”) on the ground of the Plaintiff’s breach of good faith (in the event of abuse of authority, infringing other’s rights). Accordingly, on September 17, 2019, the Army Chief of Staff notified the Plaintiff of the prior notice of failure of promotion and submission of opinions to remove the Plaintiff from the list of prospective candidates for promotion pursuant to Article 31 of the Military Personnel Management Act and Article 38 of the Enforcement Decree of the Military Personnel Management Act, as the Plaintiff would be expected to delete the Plaintiff from the list of candidates for promotion.

C. On September 27, 2019, the Defendant issued a disposition to delete the list of prospective candidates for promotion (hereinafter “instant disposition”) against the Plaintiff. On the same day, the Plaintiff requested the Plaintiff to submit a “written confirmation of receipt of the instant disposition” and “written consent by electronic document” to the Ministry of National Defense, while the Plaintiff rejected the instant disposition.

D. Meanwhile, on September 18, 2019, the Plaintiff filed an application with the Suwon District Court for the suspension of the validity of the instant disciplinary action. On September 30, 2019, the Suwon District Court rendered a decision that “the suspension of the instant disciplinary action was 14 days after the pronouncement of a judgment on the revocation of the suspension of suspension of office (2019Guhap71609)” (No. 2019Guhap71609). On the other hand, the Plaintiff submitted a written decision on the suspension of execution to the head of the Army and requested the review of the revocation of the instant disposition. However, on November 1, 2019, the Plaintiff was verbally informed from the person in charge of the headquarters of the said Army to the Defendant that the Defendant was not able to approve the selection of the subordinate military officer for the Plaintiff (hereinafter referred to as “instant notification”).

[Reasons for Recognition] Facts without dispute, entry in Gap evidence 1 through 6 (including additional numbers), the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's main defense

Despite the failure of promotion, the defendant issued a public notice of non-approval to the Army Headquarters on October 27, 2019 with regard to the request of the Army Headquarters that recommended a review of the order of promotion despite the prior appointment of promotion. On November 1, 2019, the person in charge of the Army Headquarters seems to have notified the plaintiff of this case orally. In the end, the notification of this case is merely a civil petition answer, and it cannot be deemed a disposition subject to appeal litigation.

B. Determination

Whether a certain act of an administrative agency can be a subject of appeal cannot be determined abstractly and generally, and an administrative disposition is an enforcement of law with regard to a specific fact by an administrative agency as a public authority, which directly affects the rights and obligations of the people. In mind, the administrative disposition should be determined specifically and individually by taking into account the content and purport of the relevant Act and subordinate statutes, the 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, e.g., Supreme Court Decision 2017Du42514, Sept. 21, 2017).

According to the above facts, it is obvious that the purport of the notice of this case was to inform the plaintiff that "the plaintiff had already been deleted from the list of prospective candidates for promotion and confirmed that the plaintiff had failed to be promoted again." This is merely to inform the plaintiff that "the person who was removed from the list of candidates for promotion pursuant to Article 31 (2) of the Military Personnel Management Act" would be "the person who was removed from the list of candidates for promotion" pursuant to Article 32 (2) of the Military Personnel Management Act, and the notification of this case cannot be viewed as a person who failed to be promoted only by the plaintiff. In addition, the defendant's non-approval of the plaintiff's non-approval after reviewing the KA Headquarters's revocation and recommendation for the order of promotion was merely an internal legal determination of the defendant's internal law.

Therefore, the notification of this case cannot be seen as an act that directly affects the rights and obligations of the plaintiff as an enforcement of law on specific facts. Thus, the notification of this case does not constitute a "disposition" subject to appeal litigation. The defendant's main defense to this purport is with merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The base point of time for the issue of whether there was a cause for not being promoted is "the date of the order of promotion." Since the instant disciplinary action was effective as of September 30, 2019 and as of October 1, 2019, the Defendant made a final decision on the removal of the list of the candidates for promotion as of October 1, 2019. The instant disposition is a conditional disposition that does not change any circumstances from September 27, 2019 to October 1, 2019, which is the date of the disposition, and the instant disposition becomes null and void, as there was a significant change of situation that the court decides to suspend the execution on September 30, 2019.

In addition, since the Plaintiff did not consent in advance to the disposition by means of electronic document, the Defendant shall make the instant disposition in writing pursuant to Article 24(1) of the Administrative Procedures Act. Nevertheless, the instant disposition, which was not issued as a document and was not served regularly to the Plaintiff, is null and void due to serious procedural defects.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether procedural defects are recognized

A) Article 24(1) of the Administrative Procedures Act provides that “When an administrative agency takes a disposition, it shall be done in writing except as otherwise provided in other Acts and subordinate statutes, and in the case of an electronic document, the consent of the concerned parties, etc. shall be required.” In principle, the method of disposition by a document is stipulated in the main sentence of Article 24(1) of the Administrative Procedures Act. However, the proviso provides that “if it is necessary to process it promptly or a case is insignificant, it may be done orally or by other means. In this case, upon request of the

B) The facts that the instant disciplinary action was taken on September 16, 2019 without the Plaintiff’s expected date of promotion are as seen earlier. According to the overall purport of the Plaintiff’s evidence Nos. 5-1, 2, 2, and 3 evidence Nos. 5-2 and 3, the final approval on September 27, 2019 was made by the Ministry of National Defense for the reason of the instant disciplinary action, and the Defendant prepared a notice of removal of the list of candidates to be promoted (Evidence No. 5-1) on September 27, 2019, and issued the instant written disposition to the Plaintiff by mail (the next special rank) and the Plaintiff could not be seen as being “final delivery” due to the Plaintiff’s failure to deliver the subsequent written disposition to the Plaintiff on September 30, 2019, and it is difficult to view that the Defendant’s temporary notice of the instant disciplinary action was issued by the Plaintiff on September 27, 2019 by means of an oral notice of the Plaintiff’s refusal to be issued.

C) Therefore, we cannot accept the Plaintiff’s assertion that the instant disposition is invalid due to procedural defects.

2) Whether to recognize substantive defects

A) Whether an administrative disposition is illegal in an administrative litigation shall be determined on the basis of the law and factual state at the time the administrative disposition was taken, and it shall not be affected by the amendment or repeal of the law or changes in the actual state after the disposition (see Supreme Court Decision 2007Du1811, May 11, 2007). In addition, even if an application for suspension of execution was filed, the effect of the disposition exists before the suspension of execution is rendered, and thus, it cannot be deemed unlawful if the execution was executed based on

B) Article 31 of the Military Personnel Management Act provides that a person selected by the committee for selection of officers eligible for promotion shall announce the list to the public, and (1) provides that the person eligible for promotion may be removed from the list of candidates for promotion if any ground for not being promoted prior to the order of promotion occurs even if the person is publicly announced, and Article 38(1)2 of the Enforcement Decree of the Military Personnel Management Act provides that "where the person is subject to a heavy disciplinary measure," one of the grounds for not being promoted prior to the order of promotion." As of the point of time of the instant disposition taken on September 27, 2019, prior to the order to suspend the execution of the instant disciplinary measure, the Plaintiff who was subject to the heavy disciplinary measure had already been subject to the suspension of execution, should be deemed to have caused "reasons not being promoted prior to the order of promotion", and thus, it cannot be deemed that there was any illegality at the time of the disposition, such as deletion from the list of candidates for promotion.

The instant disciplinary action, which is a separate disposition after the instant disposition, cannot be deemed to be unlawful and unfair due to a decision to suspend the execution of the instant disposition. (In addition, when a written decision to suspend the execution of the instant disciplinary action or a written decision to suspend the execution of the instant disciplinary action was served on the Defendant, October 4, 2019, and even based on October 1, 2019, which is the scheduled date for the Plaintiff’s promotion, the said written decision was not yet notified to the Defendant, and thus, the Plaintiff’s assertion that the instant disposition was unlawful as of the scheduled date for the Plaintiff’s promotion is also difficult to accept).

C) Therefore, we cannot accept the Plaintiff’s assertion that the instant disposition is invalid due to substantive defects.

4. Conclusion

Therefore, the part of the lawsuit of this case seeking the revocation of the notification of this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.