[1] In a case where an administrative agency did not give prior notice to the party or give an opportunity to present opinions while taking an infringing administrative disposition, whether such disposition is unlawful (affirmative in principle)

[2] The scope of excluding the application of the Administrative Procedures Act to the matters related to the public official personnel management law

[3] The case holding that a disposition to revoke the selection of promotion without giving an opportunity to present opinions to a person included in the order of the person to be promoted under the Military Personnel Management Act was unlawful on the ground of procedural defect

[1] If an administrative agency, while making an infringing administrative disposition, did not give prior notice to the parties or give them an opportunity to present their opinions, the administrative agency’s disposition cannot avoid revocation due to its illegality unless it does not give prior notice or does not constitute exceptional cases where giving them an opportunity to present their opinions.

[2] In light of the legislative purpose of the Administrative Procedures Act with the aim of securing the citizen’s participation in the administrative process and ensuring the fairness, transparency, and reliability of administration and protecting the rights and interests of the people, and the contents of Article 3(2)9 of the Administrative Procedures Act, the application of the Administrative Procedures Act is excluded only in cases of dispositions that are deemed difficult or unnecessary to complete administrative procedures due to their nature, or dispositions that are subject to procedures equivalent to administrative procedures, not to exclude the application of the Administrative Procedures Act to the whole matters pertaining to dispositions under the personnel management law.

[3] The case holding that a disposition to revoke the selection of promotion without giving an opportunity to present opinions to a person included in the order of the person to be promoted under the Military Personnel Management Act is unlawful on the ground of procedural defect

[1] Articles 21 and 22 of the Administrative Procedures Act, Articles 1 [General Administrative Disposition] and 19 of the Administrative Litigation Act / [2] Articles 1 and 3(2)9 of the Administrative Procedures Act, Article 2 subparag. 3 of the Enforcement Decree of the Administrative Procedures Act / [3] Articles 3(2)9, 21, and 22 of the Administrative Procedures Act, Article 1 of the Administrative Litigation Act / [general Administrative Disposition] and Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 99Du5870 delivered on November 14, 2000 (Gong2001Sang, 56) Supreme Court Decision 2004Du1254 Delivered on May 28, 2004 (Gong2004Ha, 1088)

Plaintiff (Attorney Seo-young, Counsel for the plaintiff-appellant)

The Minister of National Defense

Seoul High Court Decision 2006Nu5191 Delivered on November 30, 2006

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

The grounds of appeal are examined.

1. According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, in cases where an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, the administrative agency shall notify the parties concerned of the facts causing the disposition and the contents of the disposition, legal grounds therefor, the submission of their opinions, and the processing methods when it does not present their opinions, etc., and, in cases where other Acts and subordinate statutes do not provide that a hearing shall be held or a public hearing shall be held, the parties concerned, etc. shall be given an opportunity to present their opinions. However, the administrative agency shall not give prior notice or hear their opinions in cases where “where there are reasonable grounds to believe that hearing of opinions is significantly difficult or clearly unnecessary due to the nature of the disposition in question.” Thus, the administrative agency shall not be exempt from revocation of the disposition by unlawful means unless the administrative agency did not give prior notice or give the parties an opportunity to present their opinions if they did not give such prior notice or give them an opportunity to present their opinions (see, e.g., Supreme Court Decisions 9Du5704, Nov. 14, 20000

Meanwhile, Article 3(2) of the Administrative Procedures Act provides that “this Act shall not apply to matters falling under any of the following subparagraphs.” Article 3(2)9 provides that “The matters deemed difficult or unnecessary to undergo administrative procedures due to the nature of the pertinent administrative action, such as conscription, call-up under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action under the Acts and subordinate statutes on personnel affairs of public officials, and other dispositions or adjustment of interests by the Acts and subordinate statutes, and those prescribed by the Presidential Decree, which have undergone procedures equivalent to administrative procedures, shall be excluded from the application of the Administrative Procedures Act.” Article 2(2)9 of the Enforcement Decree of the Administrative Procedures Act provides that “The matters prescribed by the Presidential Decree” under the delegation refer to those falling under any of the following subparagraphs, and Article 3(2)3 provides that “The matters concerning disciplinary action or other measures by the Acts and subordinate statutes on personnel affairs of public officials, which are difficult or unnecessary in light of the nature of the Administrative Procedures Act’s legislative purpose and the provisions of Article 3(2)9 of the Administrative Procedures Act.”

2. According to the reasoning of the judgment of the court below, the plaintiff was selected and announced as the person scheduled for the first-grade rank on September 29, 2003 (hereinafter "the selection of the first-grade rank"), and on November 17, 2004, after the selection of the second-grade rank, the Army Chief of Staff recommended the defendant to be subject to suspension of indictment and suspension of indictment for the reason that the plaintiff was subject to three months of salary reduction due to the receipt of money and valuables from the military payer prior to the selection of the second-grade rank. Accordingly, the defendant revoked the selection of the first-grade rank on November 30, 204 pursuant to Article 31 of the Military Personnel Management Act, etc. on November 30, 2004. The plaintiff failed to clearly explain to the defendant the opportunity or opportunity to present his opinion during the Army Chief of Staff in the process of recommending the first-grade rank to the plaintiff, or in the process of recommending the defendant to submit his opinion to the plaintiff.

In light of the above legal principles and relevant statutes, the above facts are examined. According to the relevant provisions of the Military Personnel Management Act and the Enforcement Decree thereof, a person included in the list of prospective candidates for promotion is promoted according to the order of list of prospective candidates for promotion unless the removal from the list of prospective candidates for promotion or the cancellation of the selection for promotion. Thus, the cancellation of the selection for promotion is a disposition infringing on the plaintiff's interest as the person scheduled for promotion. On the other hand, the Military Personnel Management Act and its Enforcement Decree do not provide for the cancellation of the selection for promotion as stated in the instant disposition, and it is difficult to regard the above disposition as a disposition difficult or unnecessary due to its nature to undergo administrative procedures, and thus, it does not constitute a case where the Administrative Procedures Act is excluded. Furthermore, the instant disposition is unlawful since the Plaintiff did not give prior notice to the Plaintiff pursuant to Articles 21(4)3 and 22(4) of the Administrative Procedures Act or did not give the Plaintiff an opportunity to present his opinion. Thus, the instant disposition cannot be deemed unlawful.

Nevertheless, the court below concluded that the disposition of this case constitutes a case where the Administrative Procedures Act is not applicable as a disposition under the Military Personnel Management Act, which is a public official’s personnel management law, and rejected the Plaintiff’s assertion that the procedure defect in the disposition of this case was unlawful, and thus, it erred in the misapprehension of legal principles as to the interpretation of Article 3(2)9 of the Administrative Procedures Act and Article 2 subparag. 3 of the Enforcement Decree thereof, which affected the judgment

The part of the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, 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 Nung-hwan (Presiding Justice)