[1] Whether a broad discretion is placed in relation to determining whether a person is unfit to active duty service under the Military Personnel Management Act (affirmative), and whether a military authority’s decision should be respected (affirmative in principle)

[2] The case holding that in a case where the Minister of National Defense made a disposition of discharge from active duty service against Gap based on Article 37 (1) 4 of the Military Personnel Management Act to discharge from active duty service on the ground that "A is deprived of being on board due to a violation of the rule of good faith and thus is no longer capable of performing active duty service due to a violation of Article 49 (1) 1 and 4 of the Enforcement Decree of the Military Personnel Management Act, in light of the unique characteristics of the military, in a case where the military authorities determined that there is a reason falling under Article 49 (1) 1 and 4 of the Enforcement Decree of the Military Personnel Management Act, in light of the special characteristics of the military, and thus, the military court's disposition of discharge from active duty service against Gap was rendered, on the ground that "A is deprived of being on board due to a violation of the rule of good faith and the committee for examination on discharge from active duty service."

[1] Article 37 of the Military Personnel Management Act, Article 49 of the Enforcement Decree of the Military Personnel Management Act, Article 27 of the Administrative Litigation Act / [2] Article 37 (1) 4 of the Military Personnel Management Act, Article 49 (1) 1 and 4 of the Enforcement Decree of the Military Personnel Management Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 98Du12253 decided Oct. 13, 1998 (Gong1998Ha, 2705) Supreme Court Decision 201Du18649 decided Jan. 12, 2012 (Gong2012Sang, 284)

Plaintiff (Attorney Kim Llll-soo et al., Counsel for the plaintiff-appellant)

The Minister of National Defense (Law Firm Corporation, Attorneys Gjin-o et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018Nu45697 decided February 21, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. The reasoning of the lower judgment reveals the following circumstances.

(1) On March 1, 1998, the Plaintiff acquired the Korean Buddhist Cho Jong-sung (hereinafter referred to as “ Cho Jong-sung”)’s rank, and was transferred to the military chaplain (military chaplain) on July 1, 2005.

(2) Article 9(2) of the former Cho Jong-gun (amended by Act No. 983, Mar. 18, 2009; hereinafter “former Cho Jong-sung”) exceptionally permitted marriage limited to the number of military chaplain officers serving as military chaplain officers. However, on March 18, 2009, Article 9(2) was deleted and prohibited from marriage of military chaplain officers serving as military chaplain officers by elimination of Article 9(2). However, military chaplain officers who were married before May 16, 2009, which was the enforcement date of the Constitutional Court of Korea amended by Article 2(1) of the Addenda (amended by Act No. 2553, Mar. 18, 2009) were able to maintain their status as a member of military chaplain officers.

(3) On December 31, 2014, the Plaintiff reported the marriage with the Nonparty.

(4) On March 7, 2015, the Plaintiff notified the Plaintiff on the ground that he/she was married in violation of the constitutional order of the Cho Jong-sung, and that he/she was scheduled to take the measures of expulsion from the military register. On March 11, 2015, the Plaintiff acquired the Korean Buddhist Cho Jong-tae (hereinafter referred to as “Tai-sung”). On March 30, 2015, he/she taken the measures of expulsion from the military register against the Plaintiff.

(5) On April 25, 2017, the Maritime Headquarters Review Committee rendered a decision inappropriate for active duty service against the Plaintiff on the ground that “the Plaintiff was deprived of her being deprived of her being on active duty due to a violation of the adjustment ratio, and no longer is able to perform military chaplain officer duties.” On July 4, 2017, the Military Headquarters discharge Review Committee, which was held on July 4, 2017, made a decision inappropriate for active duty service against the Plaintiff on the same ground. In accordance with each of the above decisions, the Defendant discharged the Plaintiff from active duty based on Article 37(1)4 of the Military Personnel Management Act, Article 49(1)1 and 4 of the Enforcement Decree of the Military Personnel Management Act, as to the Plaintiff on July 11, 2017.

B. The key issue of the instant case is whether the Plaintiff constitutes “a person who is unable to perform duties equivalent to the pertinent rank due to lack of ability” or “other persons with other ability or moral defects that interfere with military development” under Article 49(1)1 of the Enforcement Decree of the Military Personnel Management Act, which are grounds for non-performance of active duty service under Article 49(1)1 of the Enforcement Decree of the Military Personnel Management Act.

C. Article 37 of the Military Personnel Management Act and Article 49 of the Enforcement Decree of the Military Personnel Management Act means a system that discharges a person unfit for active service from active service due to a certain reason prescribed by Presidential Decree from active service through deliberation by the committee for examination on discharge from active service, and differs from the purport of and reasons for disciplinary provisions, the composition of the committee, and the main body of the committee (see Supreme Court Decision 2011Du18649, Jan. 12, 2012). In determining whether a person is unfit for active service under the Military Personnel Management Act, the determination by the military authorities should be respected, unless there is a clear violation of laws and regulations in light of the characteristics of the military (see, e.g., Supreme Court Decision 98Du1253, Oct. 13, 1998).

2. Whether it falls under Article 49 (1) 1 of the Enforcement Decree of the Military Personnel Management Act;

A. Article 37(1)4 of the Military Personnel Management Act and Article 49(1)1 of the Enforcement Decree of the Military Personnel Management Act on the basis of delegation by the former Military Personnel Management Act provide that “a person who is unable to perform duties equivalent to the pertinent rank due to a lack of ability” may be discharged from active service because he/she falls short of active service.

B. In full view of the contents of the relevant provisions and other circumstances examined below, the determination that the military authority held that the Plaintiff has a ground falling under Article 49(1)1 of the Enforcement Decree of the Military Personnel Management Act cannot be deemed to have been an obvious violation of laws or regulations or a deviation or abuse of discretionary power in light of the military’s peculiarity

(1) According to Article 15 of the Framework Act on Military Status and Service (Guarantee of Religious Life) and Article 15 of the former Directive on Religious Affairs (amended by Ministry of National Defense Directive No. 2160, May 11, 2018; hereinafter “former Directive”), which provides for matters necessary for the enforcement of the Framework Act on Military Status and Service and other overall military religious affairs, the term “military religious affairs” refers to religious activities, educational activities, leading activities, citizen activities, and other activities conducted by military chaplain officers (Article 2 Subparag. 1); among them, religious activities refers to activities conducted to cultivate the religious spirit of soldiers and train their religious power (Article 2 Subparag. 2). Religious events consisting of the largest portion of religious activities (Article 2 Subparag. 6); and regular religious events refer to religious events consisting of various religious assemblies conducted for each religion, namely, the exercise of day-to-day and demand, and the events of each religious group (Article 11(1)1).

(2) According to Articles 118-3(3) and 119 of the Enforcement Decree of the Military Service Act, the Minister of National Defense shall select military chaplain officers through document screening, interview, physical examination, personality examination, and identity investigation for persons who request the relevant religious organization to recommend candidates and who are recommended by the said religious organization (Article 3(1)). According to the former’s order, military chaplain officers have the status as a volunteer officer as a member of the Armed Forces Officers and their status as a sexual officer dispatched from the subordinate group (Article 7(1)), and military chaplain officers must comply with the regulations of the subordinate group to which they belong (Article 9(6)1).

(3) According to Article 58(1) and (7) of the Military Service Act, Articles 118-2 and 119-2(4)1 of the Enforcement Decree of the same Act, a committee for the operation and review of military chaplain officers belonging to the Ministry of National Defense shall deliberate on matters concerning the selection, etc. of religions subject to enrollment in the military register in the religious field in accordance with the criteria for selection. The Ministry of National Defense selected a religion subject to enrollment in the military register in the religious field, including a chronology, a chronology, a Buddhist religion, a Buddhist religion, a Buddhist religion, and a Buddhist religion, while a chronology can be incorporated into a different religious order, in the case of a chronology, a chronology, a director, a supervision, or any other person who performs duties equivalent to or higher than a bachelor's degree as a person subject to enlistment in active service, may be enrolled on the military register of military chaplain officers in each religious organization to which he belongs, who recognizes qualifications in the military.

Along with the fact that it is desirable to operate the religious officer system so that it can be selected as a religion subject to enrollment in the military register in the religious field if it satisfies the requirements under the relevant Acts and subordinate statutes, the Plaintiff was unable to take charge of religious assemblies based on religious rites and religious rites in the military, or to supervise religious assemblies based on religious rites, depending on religious rites that have not been selected as a religion subject to enrollment in the military register in the religious field. Even if it is selected as a religion subject to enrollment in the religious field, the Plaintiff cannot immediately be recognized as a military chaplain officer who belongs to the military without following procedures such as recognition and recommendation of qualifications for religious religious teams.

(4) Thus, we affirm the judgment of the military authorities that " insofar as the plaintiff cannot engage in religious activities, which are the most main duty of religious affairs by changing the religious order to which he belongs, the remaining activities cannot be performed properly as military chaplain officers," and there is no clear violation of laws and regulations in such judgment.

C. Nevertheless, the lower court determined that the Defendant’s act of disposing of Article 49(1)1 of the Enforcement Decree of the Military Personnel Management Act was unlawful, since the Plaintiff, who was a scam and scaminary, can perform religious activities, such as the law society’s supervision, and even if not, can sufficiently perform religious activities through educational activities, leading activities, and private activities. In so doing, the lower court erred by misapprehending the legal doctrine on Article 49(1)1 of the Enforcement Decree of the Military Personnel Management Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Whether it falls under Article 49 (1) 4 of the Enforcement Decree of the Military Personnel Management Act;

A. Article 37(1)4 of the Military Personnel Management Act and Article 49(1)4 of the Enforcement Decree of the Military Personnel Management Act based on the delegation by the aforementioned authority provides that “other persons who have other ability or moral defects that interfere with the development of the military” may be discharged from active service on the ground that they are not suitable for active service.

B. Meanwhile, Article 9(1) of the former Cho Jong-dong Constitution provides that “A person who is a soldier before the enforcement date of this kind of Constitution (the date of May 16, 2009) shall be a so-called “the so-called “the so-called “the so-called “self-determination” shall not apply to only the military judicial officer” and Article 34-7(3) of the former Act provides that only the military judicial officer shall be allowed marriage during the period of military service. On March 18, 2009, Article 9(2) of the former Religious Order deleted Article 2(1) of the Addenda provides that “A person who is a soldier before the enforcement date of this Act (the date of May 16, 200) shall maintain the status of a soldier, despite the deletion of Article 9(2) of the Constitution.” However, Article 34-1(3) of the former Act provides that “the so-called “the so-called “the so-called “ de facto marriage” shall not be established ex officio” under Article 5(1).

C. However, in full view of the contents of the Military Personnel Management Act and other circumstances, the determination that a military authority has a ground falling under Article 49(1)4 of the Enforcement Decree of the Military Personnel Management Act cannot be deemed as an obvious violation of laws or a deviation or abuse of discretionary power in light of the special characteristics of the military.

(1) Religious officers are in charge of performing their duties as military leaders in the military through religious activities, such as establishing a soldiers’ life hall, cultivating a believers’ belief, establishing a national hall of soldiers and a sense of values and ethics for military life, and contributing to the maximizement of sound military life and mental strength (Article 5 of the former Directive). Accordingly, religious chaplain officers generally require more morality and responsibility than other branch officers.

(2) Also, military chaplain officers must observe the rules of their religious groups while maintaining their status as sexual officers dispatched from their religious groups as seen earlier.

(3) Nevertheless, the Plaintiff became aware of the possibility that he would be subject to the expulsion of the anti-scriptive system, and thereafter acquired the scriptive system, and even if he transferred to the scriptive system, he sent a request to the Defendant for cooperation with the scriptive system in the military for a period of two years in the military until the notification of such fact.

(4) Thus, in light of the special characteristics of the military and the unique characteristics of military chaplain officers, the military authority’s determination that “the Plaintiff is a person with a moral defect that interferes with the development of the military” is acceptable, and there is no clear violation of laws and regulations in such determination.

D. The lower court determined that the Defendant’s disposition of Article 49(1)4 of the Enforcement Decree of the Military Personnel Management Act is unlawful, on the ground that it cannot be deemed that the Plaintiff’s de facto marriage is included in the marriage of military chaplain officers permitted pursuant to Article 2(1) of the Addenda of the amended Hun-Ga Constitution and Article 9(2) of the former Hun-Ga Constitution, and that the Plaintiff’s de facto marriage formed a de facto marriage relationship prior to the enforcement of the amended Hun-Ga Constitution.

Of the lower judgment, the part of the judgment that included a de facto marriage in the marriage of military chaplain officers permitted pursuant to Article 2(1) of the Addenda to the Revised Religious Order and Article 9(2) of the former Religious Religious Order does not err by misapprehending the legal doctrine regarding the above provisions, contrary to what is alleged in the grounds of appeal. The ground of appeal stating that “the Plaintiff did not form a de facto marital relationship prior to the enforcement of the Revised Religious Order,” is merely disputing evidence preparation and fact-finding of the lower court, and thus, cannot be deemed a legitimate ground of appeal.

However, the lower court erred by misapprehending the legal doctrine on Article 49(1)4 of the Enforcement Decree of the Military Personnel Management Act, thereby adversely affecting the conclusion of the judgment, by failing to take into account other circumstances than the time of formation of a de facto marital relationship by the Plaintiff. The allegation in the grounds of appeal

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)