In a case where the Army Chief issued a disposition to recover an honorary discharge allowance on the ground that he/she was subject to a wrongful investigation by the Board of Audit and Inspection at the time when he/she decided the person eligible for an honorary discharge allowance, the case holding that the disposition is unlawful on the ground that it is hard to view that the public interest needs to ensure fairness and fairness in the selection of an honorary discharge allowance and that it constitutes a strong case to justify disadvantages such as violation of the right

Article 53-2 of the former Military Personnel Management Act (Amended by Act No. 10703, May 24, 2011)

Plaintiff

Army Chief of Staff

Daejeon High Court Decision 2014Nu10644 decided October 2, 2014

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Where there is a defect in an administrative disposition, a disposition agency which has conducted an administrative act may revoke it on its own even without a separate legal basis, but when it revokes the administrative disposition, it may revoke it only where it is strong enough to justify the disadvantage that a party needs to suffer due to the need for public interest, such as the protection of trust, and infringement of the stability of legal life, etc., which would be borne by the party due to the cancellation. However, if the defect in the administrative disposition is due to the party's act of application through abolition or other fraudulent methods, the party is likely to know that the benefit from the disposition was illegally acquired. Thus, the party cannot invoke the trust interest in the disposition, and even if an administrative agency does not consider it (see, e.g., Supreme Court Decisions 2011Du1639, Feb. 15, 2013; 2013Du16111, Nov. 27, 2014).

2. According to the reasoning of the lower judgment, the lower court determined that it was difficult for the lower court to have violated the general principles of administration, including the principle of equality, the principle of proportionality, and the principle of protection of trust.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① On November 23, 2010, the Director of the Inspection Office of the Korea-U.S. Army Commander notified the Plaintiff of the commencement of an investigation on the “Liability of the Plaintiff related to the discovery, follow-up management, etc. of military food foreign goods by the Defense Acquisition Program Administration” and there is no data to recognize that the Plaintiff was subject to a separate investigation by the Board of Audit and Inspection.

(2) The Board of Audit and Inspection may not deem that the Plaintiff filed an application for the payment of honorary discharge allowances and subsequent allowances by concealment or other unlawful means so as not to be reflected in the process of determining persons eligible for honorary discharge allowances.

③ On November 23, 2010, the Defendant notified the Minister of National Defense of the fact that the Board of Audit and Inspection commenced an investigation on the “responsibilities of the Plaintiff related to the discovery, post management, etc. of military food foreign goods by the Defense Acquisition Program Administration at the time of serving as the Defense Acquisition Program Administration.” On January 201, 201, the Plaintiff was aware of the fact that the Board of Audit and Inspection had commenced the aforementioned investigation against the Plaintiff at the time of applying for discharge from active service and payment of the subsequent allowances to the Defendant, but did so.

④ Upon receipt of a decision on eligibility for an honorary discharge allowance from the Defendant, the Plaintiff submitted to the discharged official under the remaining one year. On January 31, 201, the Plaintiff received KRW 21,697,470 of the honorary discharge allowance while voluntarily discharged from active service.

⑤ On March 3, 2011, the Board of Audit and Inspection confirmed by its resolution and notified to the Administrator of the Defense Acquisition Program Administration on March 9, 2011, there is no content about the Plaintiff’s misconduct, and there is no other evidence to acknowledge the Plaintiff’s misconduct.

B. The aforementioned facts and the purport of the system of the honorary discharge allowance for soldiers are to promote the reliance of the organization by paying the honorary discharge allowance to the soldiers who were discharged before the retirement age, i.e., loss of revenues that can be discharged from active service or the payment of expenses for obtaining a new occupation, etc., with compensation. ② The cancellation of the designation of honorary discharge officials before the retirement age, rather than the cancellation of the designation of honorary discharge officials, the restoration of honorary discharge allowance after the discharge of active service would be deprived of the monetary compensation of the honorary discharge allowance before the retirement age as it maintained the validity of the disposition of discharge of active service before the retirement age, which would result in the deprivation of the monetary compensation of the honorary discharge allowance of the discharged person before the retirement age, and the disadvantage such as infringement of the right to obtain the honor and trust, etc. of the discharged person before the retirement age. In light of the above legal principles, the honorary discharge allowance of this case is unlawful on the sole basis of the facts stated by the court below. Accordingly, it is difficult to deem the need of public interest to ensure fairness and fairness in the selection of honorary discharge allowance of this case to be justified.

C. Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so doing, it erred by misapprehending the legal doctrine on the exercise of discretion in the revocation of beneficial administrative dispositions, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)