2011Du112. Revocation of revocation of a decision that falls short of requirements for persons of distinguished service.

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Seoul

The Head of the Seoul Masan Veterans Office

Omission of Litigation Performers

Seoul High Court Decision 2010Nu9237 Decided December 8, 2010

June 24, 2011

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

The grounds of appeal are examined.

Article 26 of the Administrative Litigation Act, which provides for ex officio investigation of evidence and ex officio detection, is a provision of partial exceptions to the principle of party and the principle of pleading, which is relevant to the special nature of the administrative litigation. The court may ex officio conduct an examination of evidence as to the matters which are contained on the record and make a determination on the basis thereof. However, in such a case, it is allowed to determine the legitimacy of administrative disposition by recognizing a new reason only to the extent that it is recognized as identical to the original grounds for disposition and basic facts (see Supreme Court Decisions 2008Du6394, May 28, 2009; 2010Du21310, Jan. 13, 2011).

Examining the reasoning of the judgment below in light of the records, the reason for the disposition of this case is that the plaintiff is not deemed to have suffered damage to fry during the performance of official duties. The court below held that the difference of this case was merely a fright and a frighteral treatment after taking place on the fright side of the fright and the fright side of the fright side of the fright, and thus, it did not constitute a new ground for treatment of 6th degree 9 of the former Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Presidential Decree No. 21686 of Aug. 13, 2009). Article 14 (3) of the former Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Presidential Decree No. 21686 of Jun. 2, 200). 1, 200

However, it is difficult to view that the grounds for ex officio determination by the court below are identical to the grounds for the original disposition, which are separate grounds to be determined through physical examinations stipulated in Article 6-3 of the Act, if the grounds for the original disposition are revoked, and therefore, it is unlawful to determine the legitimacy of the disposition of this case by ex officio recognizing the new grounds for the above disposition

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 Jeon Soo-ahn

Justices Kim Gin-tae

Justices Yang Chang-soo

Note Justice Lee Sang-hoon