(영문) 서울고등법원 2011.8.16. 선고 2010누15614 판결

1. Of the part against Plaintiff A in the judgment of the first instance, the part that the Minister of National Defense ordered the said Plaintiff to revoke the expulsion disposition against the said Plaintiff on March 20, 209 and the part regarding Plaintiff B shall be revoked, respectively.

2. Of the instant lawsuit, the part that Plaintiff A seeks revocation of the removal from the military register against the Defendant to the Minister of National Defense on March 20, 2009 shall be dismissed.

3. The defendant Army Chief of Staff shall revoke his removal on March 18, 2009 against the plaintiff B.

4. All appeals filed by Plaintiffs A, C, D, E, F, and Defendant Army Chief of Staff are dismissed.

5. Of the total litigation costs arising between Plaintiff A and Defendant Army Chief of Staff, 50% of the above Plaintiff’s total litigation costs incurred between Plaintiff A and Defendant A, and the remainder of the litigation costs incurred between Plaintiff A and the Minister of National Defense are assessed against the above Plaintiff, and the total litigation costs incurred between Plaintiff B and Defendant Army Chief of Staff are assessed against the above Plaintiffs, C, D, F, and Defendant Army Chief of Staff. The appeal costs incurred between Plaintiff E and Defendant Army Chief of Staff are assessed against the above Plaintiffs, respectively.

Purport of claim and appeal

1. Purport of claim

On March 18, 2009, the defendant Army Chief of Staff revoked the removal from office and the order of reinstatement made on March 18, 2009, the change of the education period and the order of reinstatement made on March 20, 2009, the order of expulsion from office and recruit, and the order of expulsion from office made on March 24, 2009 by the Minister of National Defense on March 20, 209 (" March 24, 2009"), and each order of expulsion from office and recruit from office made on March 18, 2009 by the defendant Army Chief of Staff against the plaintiff Eul, the dismissal from office made on March 18, 2009 against the plaintiff Eul, the reduction from office 1-month against the plaintiff Eul, the suspension of disciplinary action made on March 5, 200 for the plaintiff F (six months) and the dispositions taken on March 19, 2009 by the head of the defendant Defense Facility Head of each disposition made on March 5, 2009.

2. Purport of appeal

A. The plaintiffs' part against the plaintiffs in the judgment of the court of first instance shall be revoked. Each disposition against the plaintiffs A, each of the changes and reinstatement orders made by the Chief of Staff on March 2009, the removal and replacement orders made on March 24, 2009, and each order made by the Minister of National Defense on March 20, 2009 against the plaintiffs on March 18, 2009 by the Chief of Staff of the Army against the plaintiffs, the removal from office made on March 18, 2009 against the plaintiff Eul, the dismissal from office made on March 18, 2009 by the Chief of Staff of the Army against the plaintiff, the five-month reduction of salary against the plaintiff Eul, the suspension of disciplinary measures taken against the plaintiff Eul, and the dispositions taken by the Chief of the defendant defense Facility against the plaintiff Eul on March 19, 2009 by five days of probation against the plaintiff Eul.

B. Defendant Army Chief of Staff, and the Minister of National Defense: The Minister of National Defense shall revoke the part against the defendant Army Chief of Staff and the Minister of National Defense in the judgment of the first instance, and the part

Reasons

1. Details of the disposition;

A. On July 15, 2008, the Minister of National Defense (hereinafter referred to as the "the Minister of National Defense") reported from the Chief of Staff of the Armed Forces Armed Forces of Korea on the promotion of cultural books (23 books) to the soldiers on active duty in order to strengthen the anti-government and anti-U.S.-specific project for the soldiers. On July 22, 2008, the Minister of National Defense (hereinafter referred to as the "the Minister of National Defense") ordered the Minister of National Defense to take measures to prevent the entry of books of the said 23 books into the military unit (hereinafter referred to as "the instructions of this case"), and ordered the Minister of National Defense to take measures to prevent the entry of the books of the said 23 books into the military unit (hereinafter referred to as the "the instructions of this case"), and ordered the Minister of National Defense to take measures to prevent them from entering the military unit (hereinafter referred to as the "the Order of the Chief of Staff") under the direction of the Minister of National Defense.

B. The Plaintiffs passed the judicial examination or the examination for appointment of military advocates and completed the curriculum of the Judicial Research and Training Institute, and were appointed as military judicial officer at the time of the instant order, and were in office as military advocates.

C. On October 22, 2008, Article 47-2 of the Military Personnel Management Act (amended by Act No. 10703, May 24, 2011; hereinafter the same) which is the basis of the instant order, and Article 16-2 of the Military Service Rule violates the principle of prohibition of blanket delegation, the principle of statutory reservation, and the principle of clarity, and the instant order and the instant Military Service Rule violate the Plaintiffs’ fundamental rights.

D. On March 18, 2009 and March 18, 2009, the president of the defendant president imposed the following disciplinary grounds (i) through (iv) with respect to the plaintiff Eul, and (v) with the approval of the defendant Minister by applying the following disciplinary grounds (i) through (v) with respect to the plaintiff Eul, and (ii) with respect to the plaintiff C, D, and F, the following disciplinary grounds (i) with respect to the reduction of salary (i.e., January, 200), five days of probation, and suspension of reprimand (six months of reprimand) with respect to the plaintiff Eul, and the head of the defendant defense facility headquarters imposed five days of probation by applying the following disciplinary grounds (hereinafter referred to as "each disciplinary action against the plaintiffs) and (ii) with respect to the plaintiff Eul Eul.

[Cause] ① The Plaintiffs filed a constitutional complaint without going through the recommendation procedure through the command system with the intention of not complying with the instant order of the Defendant Minister, thereby disrupting the military command system and undermining military discipline (Article 56 subparag. 3 of the Military Personnel Management Act and Articles 4 and 24 of the Military Service Rule). ② The Plaintiff, A, and B collected participants through telephone, Internet, email, e-mail, and direct contact with the purpose of protesting against the instant order, and filed a constitutional complaint collectively by participating in it, thereby filing a constitutional complaint with the Plaintiff C, D, E, and F, a strict military rate, such as the establishment of military law order, the final report of the establishment of military discipline, and the obligation to obey the military discipline as a collective act of disturbing military discipline committed by a group other than military service (Military Personnel Management Act Article 56 of the Military Personnel Management Act).

Article 56 subparag. 3 of the Military Personnel Management Act, Article 13 subparag. 2 and 3 of the Military Service Rule (Article 56 subparag. 3 of the Military Personnel Management Act, Article 17 of the Military Personnel Management Act, Article 22 of the Military Personnel Management Act), and Article 9 of the Military Service Rule (Article 56 subparag. 2 and 3 of the Military Personnel Management Act, Article 56 of the Military Personnel Management Act), are violated. (4) In fact, Plaintiff B applied for a false business trip order in the name of collection of materials on public defense, and actually received a written petition for a trial without the permission of the Minister of Justice, and Plaintiff A announced opinions that emb off the instant order in the press on his own or through an agent. Plaintiff A and B made a public announcement of opinions or opinions on the brain of the military; Defendant B’s duty of good faith (Article 56 subparag. 1, 3, and Article 47 of the Military Personnel Management Act, Article 9 of the Military Personnel Management Act, and Article 8 subparag. 2 of the Military Personnel Management Act). (1).

E. On March 20, 2009, the Defendant Minister ordered the Plaintiff, A, and B to be removed from the military register and to be enlisted in the military register as of March 18, 2009. On March 20, 2009, the Defendant president changed the education period from October 2, 2008 to May 31, 2009 to “from October 2, 2008 to March 16, 2009” and, at the same time, ordered the Plaintiff’s uniform as of March 17, 2009, issued a personnel order to confirm the Plaintiff, A, and B’s expulsion and order to be enlisted in the military register as of March 24, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Gap evidence 7-1, 2, 3, Eul evidence 1-1, 2, Eul evidence 4, and the purport of the whole pleadings

2. Whether the lawsuit is lawful;

A. We examine ex officio the part of the instant lawsuit, which seeks to order the removal of the Plaintiff from the Defendant Minister and the transfer of the Plaintiff to supplemental service, and to change the education period of the Defendant president and to revoke the original order, is unlawful on the grounds as delineated below.

1) According to Article 40(1)3 and 40(1)4 of the Military Personnel Management Act and Article 10(2)7 of the same Act, if an officer is dismissed, and if an officer on active duty is removed as he falls under grounds for disqualification for appointment under the Military Personnel Management Act, the officer on active duty shall be transferred to the officer in supplemental service. Thus, even if an administrative agency does not take a separate measure, the officer subject to disciplinary dismissal is immediately removed from the office and the recruit is immediately removed from the office under the above provision. The order of an administrative agency’s removal from the office and the recruit order is merely a confirmation and notification of changes in the rights and obligations of the people under the above provision. Since the order of such administrative agency’s removal from the office and the recruit order cannot be said to cause direct changes in the rights and obligations of the people or legal status of the people who are the other party, the order of expulsion from the office and the recruit order of the defendant minister against the plaintiff A does not fall under a disposition subject to appeal (in such cases, the removed officer can be relieved from the office and the recruit order).

2) The latter part of Article 12 of the Administrative Litigation Act provides that even if a person has legal interest in the cancellation of a disposition, etc. even after the effect of the disposition, etc. was terminated due to the lapse of the original period, execution of the disposition, etc., Defendant president may file a lawsuit for cancellation. As such, Defendant president, as the above facts acknowledged, changed the education period which was “from October 2, 2008 to May 31, 2009” to “from October 2, 2008 to March 16, 2009,” which was the first time of the education period of the Plaintiff’s study abroad, which was the first time after the lapse of the education period of the Plaintiff’s first time after the lapse of the education period of the Plaintiff’s original education period, and thus, Defendant A had no legal interest in the education period of the Plaintiff’s second time after the lapse of the education period of the Plaintiff’s original education period of the Plaintiff’s second time after the lapse of the education period from March 17, 2009.

B. As to the claim for the revocation by the instant lawsuit on the ground that the Defendant president’s expulsion and assignment order of the Defendant president was unlawful, the Plaintiff’s personnel order against the Plaintiff was merely confirming the Plaintiff’s expulsion and assignment order of the Plaintiff to the Plaintiff for the purpose of the Japanese colonial adjustment of the Army, and thus cannot be deemed a disposition subject to appeal. As such, the part of the instant lawsuit that Plaintiff A seeks the revocation of the Defendant president’s order to transfer to the Defendant president’s expulsion and replacement status is unlawful.

As seen earlier, Plaintiff A’s expulsion pursuant to Articles 40(1)3 and 40(1)4 and Article 10(2)7 of the Military Personnel Management Act and is incorporated into supplemental service pursuant to Article 66(1) of the Military Service Act according to the disciplinary dismissal of the president of Defendant president. As such, Defendant president’s expulsion and order to recruit service against Plaintiff A cannot be said to cause direct change in the rights and duties or legal status of the said Plaintiff, and thus, does not constitute a disposition subject to appeal litigation. Accordingly, Defendant president’s foregoing assertion that Defendant president’s expulsion and order to recruit service against Plaintiff A cannot be deemed a disposition subject to appeal litigation is reasonable.

3. Whether the disposition is lawful;

A. The plaintiffs' assertion

Each of the instant disciplinary actions is unlawful for the following reasons.

1) The illegality of disciplinary proceedings

It is unclear whether the chairperson of the Central Disciplinary Committee of the Army Headquarters held for the deliberation of disciplinary action against plaintiffs A, B, C, D, and F has appointed an executive secretary, and if there is a military advocate in the military unit or agency with which the disciplinary committee is established, he/she shall appoint an executive secretary from among the military advocates, W Colonel, who is an executive secretary for a disciplinary action who performs a leading role in the disciplinary proceedings against the above plaintiffs, was not a military court officer. Although the plaintiff B transferred to the Z agency on March 17, 2009 and requested the postponement of the disciplinary committee due to the difficulty in attending the Z agency on the same day, the disciplinary committee did not request the postponement of the holding of the disciplinary committee, but it did not err in the disciplinary proceedings, such as the plaintiff B was deprived of the opportunity to attend and make statements at the disciplinary committee, and explanatory materials submitted prior to the holding of the disciplinary committee are not present during the deliberation

2) Absence of grounds for disciplinary action

A) Disciplinary reasons ①

The disciplinary action against the plaintiffs on the ground that the orders of this case and Article 16-2 of the Military Service Rule, which are relevant laws and regulations, etc. of this case, are likely to be unconstitutional as it infringes on the plaintiffs' fundamental rights, and the constitutional complaint is filed, is an infringement on the right to a trial guaranteed by the Constitution. Since Article 24(1) of the Military Service Rule provides that a subordinate may recommend his opinion to his superior, it is not a matter of duty, and thus, it cannot be deemed as a violation of the duty to comply with the Acts and subordinate statutes even without going through such internal procedures. In addition, the plaintiff B presented his opinion to the head of H agency, who is a direct superior, and the L institution also presented his opinion about the legality of the instant order, and presented his opinion about the legality of the instant order, and thus, it cannot be deemed a violation

B) Disciplinary reasons ②

The plaintiffs' request for adjudication on constitutional complaint with respect to the order of this case, which is suspected to have been unconstitutional, and the relevant laws and regulations, are public interest and military affairs. The plaintiffs do not have a fact of meeting to request adjudication on constitutional complaint of this case, and only have a joint request for adjudication on constitutional complaint in the name of the joint members, and there is no fact of collective action. Thus, it cannot be deemed that the plaintiffs committed collective action for activities other

C) Disciplinary reasons ③

Plaintiff A and B did not directly interview or contribute to the press media or broadcast with respect to the instant instructions, and did not discuss that the N lawyer who represented the above Plaintiffs’ claim for adjudication on constitutional complaint in order to take charge of the press contact by representing the above Plaintiffs’ positions. The said Plaintiffs did not have any interview or broadcast regardless of the said Plaintiffs’ intentions, nor did they publish his opinion or assertion debrising the instant instructions, nor did they publish his opinion or assertion outside the military, and there was no fact that the said Plaintiffs slandered and insulting the military brain division, and thus did not violate the duty to comply with the law or to maintain dignity.

D) Disciplinary reasons ④

Plaintiff B applied for a business trip order to collect data related to public defenders, collected data on public defenders to the Ministry of National Defense in accordance with a lawful business trip order, and did not apply for a false business trip order, and Plaintiff A did not violate the duty of good faith, since there was no fact that Plaintiff B ordered Plaintiff B to issue a false business trip order.

E) Disciplinary reasons ⑤

On September 208, 2008, before filing a petition for adjudication on the instant constitutional complaint, Plaintiff B was engaged in private dialogues with the reporters of AAA press, a university line, and did not interview on the premise of press reports. The criticism of the policies of Defendant B on the website (JGC-NET) of the Ministry of Home Affairs of the Army internal communication network branch (JGC-NET) does not constitute defamation, and some members of the National Assembly who filed a petition for adjudication on the constitutional complaint on the constitutional complaint of this case did not violate the duty to maintain dignity or comply with the duty to obey the law. As such, Plaintiff B posted a statement on the above website that is necessary to examine the anti-sexuality of the member’s privilege on the part of the military advocates who filed a petition for adjudication on the constitutional complaint on the constitutional complaint of this case, which did not constitute defamation.

(iii) the deviation and abuse of discretionary authority;

The purpose of the plaintiffs claiming adjudication on constitutional complaint of this case is not to circumvent the order of this case or to refuse the order of the defendant minister, but to receive the decision of the unconstitutionality of the order of this case and the relevant Acts and subordinate statutes, and the plaintiffs were faithfully performing their duties as military advocates, each disciplinary measure of this case against the plaintiffs is illegal as a deviation or abuse of discretionary power.

(b) Related statutes;

It is as shown in the attached Form.

1) Circumstances of the instant instruction

A) On July 15, 2008, the Defense Security Command obtained a counter-government and anti-U.S.-government and anti-U.S.-government project on July 2008 through August 8, 2008, and obtained a counter-government and anti-U.S.-government project as a project during the vacation period, "sports for sending books in the barracks" for the books recommended as cultural books in the Korea-U.S. medium military project plan. On July 15, 2008, the Defense Security Command selected 23 books by reviewing and classifying books that may have a negative impact on soldiers' mental power when illegally shipped into the barracks without permission, and reported this fact to the Defendant Minister.

B) In light of the seriousness and urgency of the case on July 22, 2008, the defendant Minister may designate the above books as "unstopy book" based on Article 16-2 of the Military Service Rule, taking into account the seriousness and urgency of the case, and may cause harm to the mental power of the soldiers at the time of carrying them into the stopy book without permission within the s to the stove book, and whether the above books were

The order of this case was issued to each group with the aim of strengthening the "one-day inspection and the control of the entry into military units".

C) On the other hand, with the report of this case critically by AB press on July 31, 2008, its legitimacy became an issue through the question of regular inspection by the National Defense Committee of the National Assembly in 2008, and the Ministry of National Defense made it clear that the Ministry of National Defense has to continue to take such measures due to the need to maintain and strengthen the military mental power in charge of national security. Since July 22, 2008, the Ministry convened a deliberative committee on decoration and cultural materials composed of experts related to mental education, and reviewed the detailed contents of the said books, it was confirmed that the above 23 books could hinder the military mental power of all of the above 23 books around August 15, 2008.

D) On August 21, 2008, the National Human Rights Commission of Korea decided whether all citizens choose and read books in relation to the instant order is the most fundamental and unique freedom and right that ought to be respected as human beings with conscience and conscience. From among the freedom of conscience guaranteed by Article 19 of the Constitution, the choice of books is not only the area of freedom (the freedom of formation) that is right and wrong depending on their own decision, but also falls under the area of freedom to receive or actively collect information without being disturbed by the source of information that is generally accessible pursuant to Article 21 of the Constitution, on the ground that "it is also the area of freedom to receive or actively collect information without being disturbed by the source of information that is generally accessible pursuant to Article 21 of the Constitution."

E) Of the 23-Class books designated as “U.S. book” due to the instant order, “U.S. strategy for North Korea,” “U.S. economic development strategy for North Korea,” and “Nuclear and the Korean Peninsula” were determined as pro-enemy contents in the Seoul Central District Court Decision 2008Da1165 Decided April 21, 2009. Such determination was confirmed through the Seoul High Court Decision 2009Do1100 and Supreme Court Decision 2009Do11875 Decided April 21, 2009.

2) The details and progress of the constitutional complaint of this case

가) 원고들은 2008. 7. 31.경 신문기사 등을 통하여 이 사건 지시가 있음을 알게 되었는데, 원고 C은 2008. 8. 4. 육군 내부통신망 법무병과 홈페이지(JAGC-NET)에 이 사건 지시의 부당성을 지적하며 "그동안 제가 읽었던 책들이 불온도서라니 머리가 띵해지는군요, 제가 불온한 사람이 된 것 같군요"라는 글을 게재하였고, 원고 A, B도 그 무렵 신문기사와 원고 C의 위 글을 읽고서는 이 사건 지시에 위헌의 소지가 있다는 생각을 하게 되어 이에 관하여 의견을 교환하기 시작하였다.

B) On August 2008, Plaintiff B presented the opinion that the instant order was unconstitutional at the time of the Homan’s Week Meeting, which was not a serious discussion about it, and the head of H agency asked the Ministry of National Defense’s human rights and legislative system. The Plaintiff B asked the director of L agency in charge of L agency about the legality of the instant order at around that time. The competent judicial officer asked the director of L agency in charge of L agency about whether the instant order was being examined at the present time in relation to the instant order.

C) On August 2008, despite the expression of opinion as above by the National Human Rights Commission of Korea, Plaintiff B became aware of the fact that the Defendant had changed only the name of “unexplic book” which was the object of the instant order to “an inappropriate book for mental power” through press reports, etc. The instant order was determined as unconstitutional by infringing on the fundamental rights of the soldiers including the Plaintiffs, and decided to file a constitutional complaint against the instant order along with Plaintiff A. The Plaintiff solicited Plaintiff B to prepare a draft constitutional complaint against the instant order, and the Plaintiff B started to prepare a draft constitutional complaint against the instant order by reviewing the illegality of the fundamental rights infringed upon by the instant order and the instant order from that time.

D) On September 2008, Plaintiff B strongly criticized Plaintiff B’s reporters M of the AA press, a U.S. daily newspaper with the intent to raise a problem in any way in the absence of any particular measure within the Ministry of National Defense, while strongly criticizeing Plaintiff B’s designation of “indones” through the instant order by Defendant Minister.

E) On October 23, 2008, in the Han-U.S. legal seminars in 2008, Plaintiff B sent a business trip to the Ministry of National Defense with the permission from September 13, 2008 to 15:00 the following day from September 25, 2008 in order to collect data on the publication of the title "in the Korea-U.S. legal branch seminars on the public defender system on the land". The Plaintiff sent a business trip to the Ministry of National Defense with the permission from September 13:00 on September 25, 2008, and the Plaintiff prepared a written petition on the personnel affairs submitted by some military advocates to the Ministry of National Defense. Accordingly, upon receipt of the written petition on the personnel affairs, the Plaintiff requested the Ministry of National Defense to accept the written petition on the road.

F) On September 25, 2008, Plaintiff B collected materials related to public defender at around 15:20 after entering the Seoul High Military Court of the Ministry of National Defense and the High Military Court of the Ministry of National Defense, and then retired from the Ministry of National Defense at around 17:40, and at around 17:50, Plaintiff B entered the Ministry of National Defense and retired from the Seoul Gangnam-gu P. On the following day, Plaintiff B entered the Ministry of National Defense in the Ministry of National Defense at around 12:50, and submitted to the Ministry of National Defense a written petition on personnel affairs delivered by N lawyers before collecting the materials related to public defender-appointed defense at around 23

G) On October 15, 2008, Plaintiff B posted a statement to the effect that “The right to request an adjudication on constitutional complaint regarding the instant order should be recruited,” and on October 6, 2008, Plaintiff B sent to the KA and went to the KA for a four-day period of time to go to and from work at the KAP’s home in Gangnam-gu for a four-day period of time to receive education on the process of remuneration for the legal affairs and armed forces, and started to prepare a draft of the written request for adjudication on constitutional complaint for the instant order after leaving the workplace at the KA’s home in Gangnam-gu, Seoul. Around October 15, 2008, Plaintiff B completed a draft of 20th amount of the draft on which the instant order was directed to Plaintiff A.

H) On October 17, 2008, Plaintiff A decided to appoint N lawyer as an attorney to act on behalf of the claimant for constitutional complaint, and examined the draft of the above draft of the constitutional complaint, and on October 17, 2008, Plaintiff B, together with Plaintiff B, discussed that “The draft of the above draft of the complaint was focused solely on the illegality of the instant order, but it was changed in the form of a constitutional complaint against statutes by adding the part of infringement of fundamental rights under the Military Personnel Management Act and Military Service Rule, which are the basis statutes of the instant order, and the part of infringement of fundamental rights under the Military Personnel Management Act and Military Service Rule, should be changed in the form of a constitutional complaint against statutes.” The third person was directed to N lawyer and Plaintiff B by revising the draft of the complaint, and the third person discussed that “if military advocates who are the petitioners directly contact with the media, only the attorney

I) On October 208, after reflecting the Plaintiff’s correction’s opinion, the Plaintiff C, E, and F, who agreed to participate in the request for adjudication on constitutional complaint as described in the following subparagraphs, upon completion of the original copy of the written request for adjudication on constitutional complaint on constitutional complaint on constitutional complaint on constitutional complaint on constitutional complaint on or around October 2008, the Plaintiff C, E, and F, as the claimant (the Plaintiff D was added to each claimant’s name on October 22, 2008, and R was added to each claimant’s name on October 21, 2008). The Plaintiff provided N lawyer with data to be attached to the written request for adjudication on constitutional complaint on constitutional complaint, including the number of copies of the written request for adjudication on constitutional complaint and the Plaintiffs’ service certificate, newspapers related to the instant

(j) On the other hand, on August 4, 2008, Plaintiff C read the text posted by Plaintiff C on the homepage (JGC-NET) of the International Army Communication Law Branch of the Army, and discussed the issue of the constitutional complaint of this case directly by telephone to Plaintiff C, and Plaintiff C expressed his intention to participate in the request for constitutional complaint by Plaintiff C, and thereafter Plaintiff C expressed his intention to participate in the request for constitutional complaint of the constitutional complaint of this case. Plaintiff C entered the process of the high-military group, such as Plaintiff B, and Plaintiff B asked Plaintiff B whether he wishes to participate in the request for constitutional complaint of this case with respect to the order of this case while Plaintiff C was working as S of the International Army of the Army of the Army, which was accompanied by Plaintiff B. Plaintiff D expressed his intention to participate in the request for constitutional complaint of this case by e-mail from Plaintiff B, and then published the draft of the present request for constitutional complaint of this case to Plaintiff C on October 20, 2008, and published it to Plaintiff Q1 on the Internet.

(k) N Lawyers and Plaintiff B, after exchanging opinions on the preparation of a written request for adjudication on constitutional complaint over three to four occasions, revised and supplemented them, and on October 22, 2008, finally completed a written request for adjudication on constitutional complaint of 47 pages at A.M. on the same day, N received a written request for final adjudication on constitutional complaint to the Constitutional Court at around 16:00 on the same day.

l) From the day of the receipt of the written request for adjudication on constitutional complaint of this case, N Lawyer had an interview directly or by telephone with the media, including newspapers and broadcasting, in relation to the instant constitutional complaint of this case. This was concentrated on a broadcast, newspaper, Internet media, etc. from the day of receipt of the written request for adjudication on constitutional complaint of this case. Among them, AC Press news, the President and the Defendant Minister taken a cover of the written request for adjudication on constitutional complaint prior to the final completion stage stated as the respondent of the constitutional complaint, and broadcasted on the screen. The representative interview reported to the media is as follows.

A person shall be appointed.

(m) On October 23, 2008, The AA press reporter M introduced on the press of AAD, under the title of the "AD", that military advocates were unconstitutional, and that the military advocates were against the instant order and its underlying legislation and that they were unconstitutional, and the Plaintiff B reported the article that "it would be likely that the Ministry of National Defense would harm military political neutrality even if he would violate the military's arbitrary prohibition of arbitrary release and bringing in." On October 24, 2008, the AA press made a constitutional complaint against the recent order of prohibition of possession and bringing in by the Ministry of National Defense under the title of the "AE" (the plaintiff B seems to go against the plaintiff B) and that it would be a violation of the freedom of conscience formation by the Ministry of National Defense, and that the military judicial officer's efforts to designate the B B's non-to take measures accordingly would have been unconstitutional, and that the military judicial officer's past report and the military judicial officer's past report should not be able to harm the military's reputation.

n) The Ministry of National Defense had been subject to regular inspection by the National Defense Committee of 2008 from October 1, 2008, and was scheduled to hold a comprehensive audit on October 23, 2008. The Plaintiffs’ request for adjudication on constitutional complaint and his/her attorney’s interview on this issue was discussed in the comprehensive audit by the National Assembly National Defense Committee of the Republic of Korea following the date when the media was published, and the legitimacy of the instant order and the responsibility of the Plaintiffs became controversial.

(o) On November 16, 2008, Plaintiff B stated the title of “U” as the title of “U” on the Ministry of National Defense’s homepage of the Army Communication Law branch, 2008.10, and 23. At the comprehensive audit site of the National Assembly, Plaintiff B stated that the National Assembly members belonging to V political parties file a constitutional complaint without going through the military command system, and “I am able to think of it because flags are unfolded,” and the background attached to the back is too rare and flady, and it is thought that it is too rare and flady, on the other hand, that it is necessary to take a reflective consideration of the National Assembly member’s privileges exemption power”, and that it is necessary for the Minister to do so from the thickness of the Republic of Korea’s national defense, especially on the basis of “the Minister of National Defense to give an initial instruction to the Minister of National Defense and to give an initial instruction to the commander of the law branch who falls under military affairs.”

(p) On October 28, 2010, the Constitutional Court

Article 47-2 of the Military Personnel Management Act and the order of this case were dismissed on the ground that the direct requirements for infringement of fundamental rights are not met, and that the part concerning "the act of possession, transportation, propagation, or acquisition" in Article 16-2 of the Military Service Rule was dismissed.

3) Details of the instant disciplinary action

A) By taking into account the issue of the Plaintiffs’ constitutional complaint claim and press reports, the president instructed the Plaintiffs other than Plaintiff E to conduct a disciplinary investigation, and demanded the National Army Headquarters Central Disciplinary Committee to make a disciplinary resolution after completing the disciplinary investigation against the said Plaintiffs from October 30, 208 to March 10, 2009.

B) On March 17, 2009, the Chairman of the Central Disciplinary Committee of the Army Headquarters was appointed as the secretary of the above Disciplinary Committee and held the Disciplinary Committee for the resolution of the resolution against the Plaintiff A and B. On March 18, 2009, the Chairman of the said Disciplinary Committee was appointed as the secretary for the above WW, X, and held the Disciplinary Committee for the resolution of the resolution against the Plaintiff C, D, and F. After passing the Military Advocates examination, the YX was appointed as the military advocate on April 1, 2005, and W was appointed as the military advocate on February 1, 1992, after passing the Military Judicial Examination for the Appointment of Military Officers, passed the Military Judicial Research and Training Institute, and passed the Judicial Examination for the Appointment of Military Officers, and completed the training course and performed duties of the military prosecutor and military judge for the period from 200 to 200 years.

C) On March 17, 2009, Plaintiff A appeared at the Central Disciplinary Committee of the Army Headquarters held on and around 14:00, and made a statement. However, Plaintiff B continued to refuse to attend at the time of the disciplinary investigation, and Plaintiff B was unable to attend the said Disciplinary Committee on the day on which the said Disciplinary Committee was held without prior notice, and sent written answers and explanatory materials stating his opinion on the instant disciplinary investigation to X via e-mail on five occasions. Plaintiff B submitted a written response to Plaintiff B sent e-mail to the said Disciplinary Committee around 10:17 on the day, but the materials sent by e-mail were not confirmed.

D) The Central Disciplinary Committee of the Army Headquarters decided each of the instant disciplinary actions against Plaintiffs A, B, C, and D, and the reprimand against Plaintiff F, respectively. Accordingly, on March 18, 2009, the Defendant president took a disciplinary measure against Plaintiffs A, B, C, and D according to the resolution of the said Disciplinary Committee, and mitigated the disciplinary measure against Plaintiff F as suspension of reprimand (six months).

E) On March 19, 2009, the Military Disciplinary Committee of the Headquarters of the National Defense Facilities decided on the five-day disciplinary action against the Plaintiff E, and the head of the Defendant’s National Defense Facilities Headquarters decided on the disciplinary action as decided by the said Committee.

F) The Plaintiffs were dissatisfied with each of the instant disciplinary measures taken by the president of the Korea Army and the head of the Korea National Defense Agency, and filed an appeal to the Ministry of National Defense. However, on April 30, 2009, the Defendant Minister dismissed the Plaintiffs’ appeal in accordance with each of the respective resolutions of the appeals appeals review committee against the Plaintiffs on April 24, 2009. Meanwhile, the Ministry of National Defense received, in the process of deliberation, the materials submitted by the Plaintiff B omitted at the time of deliberation by the Korea Army Headquarters, and examined and confirmed the appeal review committee.

[Reasons for Recognition] The aforementioned evidence, Gap's testimony of X witness, Gap's testimony, 15, 17, 20 evidence, Eul's evidence 5 through 15, 18, 20, 21, 31, 32, 33, 35, 36, 38, 53, and 62 evidence (including each number), the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

1) Whether disciplinary proceedings are unlawful

A) According to Article 6(4) and (5) of the Decree on Disciplinary Measures against Military Personnel, an executive secretary shall be appointed by the chairperson from among the military units or agencies established by the Disciplinary Committee, and the executive secretary shall be appointed by the chairperson from among the military advocates if there is a military advocate belonging to such units or agencies. However, there is no provision regarding the method of appointing an executive secretary. Article 2 of the Act on Appointment of Military Advocates (amended by Act No. 6291 of December 26, 200) provides that the term "military advocate" refers to the Army, Navy, and Air Force's legal officer who passed the judicial examination and completed the prescribed period of the Judicial Research and Training Institute. Article 3 of the Decree provides that a military advocate is appointed from among those who have passed the examination for appointment of military advocates, who have passed the examination for appointment of military advocates, who have passed the examination for appointment of military advocates and passed the examination for appointment of military judicial officers and passed the examination for appointment of military judicial officers and passed the examination for appointment of military officers.

Therefore, since the chairman of the central disciplinary committee of the Army Headquarters Gap and Eul for the plaintiffs other than the plaintiff Eul (the plaintiff Eul does not dispute over the illegality of the disciplinary procedure) appointed the "W, Y, X" or "W, X" as the executive secretary, there is no defect in the appointment of the executive secretary of the disciplinary committee ( even if the representative is not the military advocate, the military disciplinary order does not specify the number of executive secretaries appointed by the chairman of the disciplinary committee. Thus, since the chairman of the central disciplinary committee of the Army Headquarters Gap and Eul for the above plaintiffs as the chairman of the Army Headquarters Gap and Eul are appointed as the executive secretary of the disciplinary committee, there is no error in law in the appointment of executive secretary of the disciplinary committee).

B) According to Articles 9 and 10 of the Military Disciplinary Decree, a person subject to a disciplinary deliberation may attend the disciplinary committee and make a statement or make a statement in writing, and the person subject to the disciplinary deliberation shall be given a sufficient opportunity to make a statement to the person subject to the disciplinary deliberation, and the person subject to the disciplinary deliberation may make a statement or submit evidence to him/her in writing or orally. According to the above facts of recognition, although the plaintiff B did not attend the disciplinary committee on the ground that the date when the Central Disciplinary Committee was held overlaps with the date when the date when the disciplinary committee was transferred to the Z institution, and the materials sent on the date when the disciplinary committee was held was not submitted to the committee, the above plaintiff was already refused to attend the committee at the time of the investigation, and there was no official request for the postponement of the date when the disciplinary committee was held. In light of the fact that the executive secretary sent a written reply stating his/her opinion in lieu of the attendance and statement to the above disciplinary committee and submitted it to the above disciplinary committee and reflected in the deliberation on the grounds for disciplinary action, it is difficult to deem that the plaintiff's right to submit evidence or right to the disciplinary committee.

2) Whether grounds for disciplinary action exist

Article 5(2) and Article 74(2) of the Constitution of the Republic of Korea provides that the Republic of Korea shall ensure the safety, freedom, and happiness of our and our descendants and shall establish the national armed forces, the mission of which is to ensure national security and to perform the decent duty of defense (Article 5(2) and Article 74(2)), and that for this purpose, all citizens shall have the duty of national defense (Article 39(1)). Article 66(2) provides that the President shall be responsible for the protection of the independence and territory of the State (Article 74(2)). Meanwhile, where necessary for national security, basic rights may be restricted by Act (Article 37(2)). Article 37(2) provides that soldiers and soldiers killed in action shall be specially treated (Article 29(2)); Article 32(6) of the Act on the Protection of Persons of Distinguished Service to the State and their bereaved families shall be subject to special protection; Article 32(1) of the Act on the Protection of Military Criminal and Article 27(10(1) of Emergency Law).

As such, the Constitution of the Republic of Korea provides the Republic of Korea with a strong mission of national security and the defense of land and treats military personnel who perform such special mission differently from the general public. In order to perform the mission of the Republic of Korea, combat actions that may endanger the lives and physical safety of military personnel are carried out, and thus, the mission of the Republic of Korea itself entails the possibility of sacrificeing the fundamental rights of military personnel. Since the existence and security of the State is the basic framework for guaranteeing the fundamental rights of the people, the fundamental rights of military personnel may be subject to special restrictions in order to perform the mission of securing the basic discussion of the guarantee of fundamental rights. The fundamental rights of military personnel may not be an exception to the guarantee of fundamental rights under the Constitution of the Republic of Korea, the core of which is the guarantee without exception of fundamental rights, but the guarantee of fundamental rights is based on the existence and security of the State, and military personnel is a member of the military organization with a direct aim of guaranteeing the existence and security of the State, and if it is inevitable for that purpose, the restriction of fundamental rights may be aggravated relatively compared to the general or general

In addition, the so-called principle of statutory reservation under Article 37 (2) of the Constitution that all freedom and rights of the people may be restricted to the extent necessary for national security, maintenance of order or public welfare, not to mean only a rule by law, but also a request for regulation based on law. Thus, the form of restriction on fundamental rights does not necessarily require the form of law. If the form of restriction on fundamental rights is based on the law, and the body and clarity of the delegation required by Article 75 of the Constitution is satisfied, the fundamental rights can be restricted by delegated legislation. Considering the unique nature of the military organization that has a systematic structure for the sake of national security and national defense to achieve the mission of national security and national defense, it is difficult to deem that the portion closely related to military service and military life and mental strength of military personnel can be widely recognized to the administration. Thus, it is reasonable to require the administration to strictly comply with the principle of statutory reservation and to determine that such a request is in violation of the Constitution if it fails to comply with such request (see, e.g., Supreme Court Decision 2010Hun-Ma68, Oct. 28, 20108).

On the other hand, the Gun is an organization performing the duty of national security and national defense, which is maintained by strict order-to-presidential relationship based on the rank system. Therefore, an act of dissatisfied with an order issued by the Gun may make the command of the Gun impossible, and furthermore, may pose a serious threat to the existence of the Gun itself, and therefore, a compliance with an order issued inside the Gun ought to be absolutely maintained in order to establish the right of access to the military (see Constitutional Court en banc Decision 91Hun-Ba20, May 25, 1995).

A) Determination on grounds of disciplinary action ①

(1) Article 27(1) of the Constitution provides that all citizens shall have the right to a trial by law, and the citizens' right to a trial shall include the right to a constitutional trial as a matter of course. Article 111(1)5 of the Constitution provides that the Constitutional Court shall have the right to a constitutional trial. Article 111(1)5 of the Constitution provides that a person who is infringed on fundamental rights guaranteed by the Constitution due to the exercise or non-exercise of public authority shall be entitled to a constitutional petition with the Constitutional Court except for a court trial. Article 68(1) of the Constitutional Court Act provides that all military personnel, including the plaintiffs, who are military advocates, may file a constitutional petition with the Constitutional Court.

However, as seen earlier, Article 23(1) of the Military Service Rule provides that a soldier’s fundamental right may be subject to special restrictions. Article 23(1) of the Military Service Rule provides that “A soldier shall obey an order of his superior, who shall execute the order promptly and accurately,” and Article 24(1) provides that a soldier may make a proposal to his superior independently according to the chain of command if he is beneficial to, or has legitimate opinions. In such cases, even if the superior makes a decision different from his own, he shall respect his will and obey it at all times.” Article 25(1) provides that a soldier shall be subject to unfair treatment, or if it is difficult to perform his duties due to illness or other personal reasons, he shall be subject to consultation or recommendation according to the chain of command, or a request for grievance review according to Article 51-3 of the Military Personnel Management Act and Article 60-5 of the Enforcement Decree of the same Act.” Article 25(4) provides that a soldier shall not make a request for resolution of the grievance through the system of command and resolution of the grievance.

As can be seen, even if a superior's instructions or orders were given but it is difficult to accept such instructions or orders, it cannot be said that the exercise of the final right to trial itself is not prohibited, and thus, the infringement of the essential contents of the right to trial cannot be said to be done promptly through such internal procedures. The relief of the right to trial can be processed promptly through such internal procedures. The wide understanding of the background and purpose of issuing instructions or orders is expanded, and the side effects such as the disturbance of the military command system due to unnecessary anti-defense acts can be minimized. If a person requests resolution outside the military, such as seeking judicial review, by taking into account the illegality of all superior's instructions or orders without undergoing internal procedures, the illegality of all instructions or orders cannot function properly, and if the person requests resolution outside the military, such as seeking judicial review, the military's strict relation and broad liquidity, urgency, confidentiality, confidentiality, etc. cannot function properly.

Therefore, even in cases where a superior’s instruction or order is related to the restriction or infringement of a soldier’s fundamental right, unless there is a clear violation of such instruction or order, barring special circumstances, the superior’s intent in compliance with such instruction or order shall be respected and rejected without permission. In selecting a constitutional complaint by means of remedy for infringement of rights against such instruction or order, it is necessary to first make a proposal to his/her superior through the chain of command so that he/she can correct the problem within the military, and to request an adjudication on constitutional complaint to the Constitutional Court, which is an external institution of the military, to ensure that the direction or order does not interfere with the military command

(2) As to the instant case, it is difficult for the Defendant Minister or the president of the Republic of Korea to consider that the instant order was intended to block the entry of the 23-class military unit, which is the commander of the armed forces, to send the 23-class military unit, to preserve the mental power of soldiers. Since the mental power of soldiers is very important in combat forces, mental education is necessary to enhance the military personnel’s sense of duty and will to combat, as well as to remove elements hindering mental power. Thus, it is difficult to view that the Defendant Minister or the president of the Republic of Korea would interfere with the mental power of the military personnel when he sent a specific island to the soldiers on active duty, and it is difficult to view that the instant order was issued without individually examining whether the 23-class military unit’s 23-class military unit’s scopical military unit’s scopic military unit’s scopic military unit’s scopic military unit’s scopic military unit’s scopic military unit’s s 23-class military unit’s military unit’s copic military unit’s main.

Therefore, the plaintiffs have a duty to obey the order of this case because it is clearly deemed that the order of this case is unconstitutional or unlawful, and even if the direction of this case was decided individually that the order of this case is unconstitutional, the plaintiffs should have made a recommendation to his superior independently according to the direction system so that it can be corrected within the military. However, prior to filing a petition for adjudication on constitutional complaint, the plaintiffs filed a petition for adjudication on constitutional complaint of this case with the Constitutional Court, which is an external institution of the military, without making an endeavor to make a proposal to his superior as to the unconstitutionality of the order of this case, so that the discussion and correction can be made. This constitutes a violation of all the provisions of the Military Service Rule. Thus, this part of the disciplinary ground of this case is recognized (the plaintiff Eul asserted that he had made a recommendation to his superior according to the direction system, but as seen earlier, it cannot be said that the direction of this case is unconstitutional, and it constitutes a "in accordance with Article 2 (1) and (4) of the Military Service Rule."

B) Judgment on grounds of disciplinary action ②

(1) Article 13(1) of the Military Service Rule provides that "military personnel shall not engage in collective action for any work other than military service." "collective action for the purpose other than military service" refers to an act committed by a group of people for a specific purpose that undermines the essence of military service as a soldier, such as undermining military discipline or violating this part of the military service, and such act does not need to be continuous, and it does not need to be organized to the extent that it has the form of command and order (see Supreme Court Decision 90Nu4839, Apr. 23, 1991). Article 24(1) of the Military Service Rule provides that military personnel shall not engage in collective action for any work other than military service." Article 25(4) prohibits group signature, etc. of a group of persons against whom a military command and order was issued to the extent that it is unlawful or unreasonable in light of the system of military command and order's inherent nature and the reason why the military command and order were jointly sought for the purpose of restricting military service.

(2) As seen earlier, it is difficult to readily conclude that the instant order was clearly unconstitutional or unlawful. The Plaintiffs, according to the chain of command, did not independently recommend correction, etc. of the instant order to their superior, exchanged opinions with one another to jointly file a constitutional complaint, and Plaintiff B recruited the same participants by inserting this article on the Internet, and as a result, the Plaintiffs had jointly filed a constitutional complaint, and in the process, there was an intent to criticize the Minister of Justice who issued the instant order and to object to the instant order. In full view of all the circumstances, the Plaintiffs jointly filed a constitutional complaint on the instant case by the Plaintiffs constitutes a “collective act for the purpose other than military affairs, which is for the purpose of hindering military service as a soldier,” and thus, this part of the grounds for disciplinary action is recognized.

C) Determination on grounds for disciplinary action ③

(1) According to Article 17(1) of the Military Service Rule and Article 22(1) and (3) of the Military Service Directive, a soldier shall not publish matters concerning national defense and military affairs to the military outside or engage in external activities as a soldier’s status without permission from the Minister of National Defense, and shall guide the head of the relevant department to conduct an interview in cases where he/she receives a request for an interview from the press on major issues, such as national defense policies, and shall undergo an advance review of the interview contents. The above provision aims to prevent confusions that may arise due to a soldier who does not represent the military indiscreetly announce his/her opinion to the outside of the military or respond to the interview of the press, as his/her personal qualification, and damage the trust of the military.

In addition, Article 56 subparag. 2 of the Military Personnel Management Act provides that a soldier’s act of impairing his/her dignity regardless of whether he/she performs his/her duties or not, and Article 9 of the Military Service Rule provides that a soldier shall not act detrimental to his/her prestige and dignity as a soldier, and shall maintain his/her dignity. As seen earlier, since a military unit is recognized as a special status and authority relationship distinct from that of the general society, even though the expression permitted in the society is recognized, it constitutes grounds for disciplinary action under the above provision that damages the trust of the military, damages the dignity as a soldier or a soldier, damages his/her command, or disturbs his/her superior’s order.

(2) According to the foregoing facts of recognition, it is difficult to readily conclude that Plaintiff A and B directly announced their opinions and notes on the instant order to the military or had an interview with the press.

However, after the plaintiff B's determination of the constitutional complaint on the order of this case, he/she criticizes and impregnishs the order of this case in a daily newspaper with personal friendly relationship, and speaks that it violates the Constitution. Since the newspaper to which the above reporters belong claimed and criticizes the unreasonableness of the order of this case, the article was reported that the plaintiff B expressed the impregnite on the military cerebral relationship with the lawyer who will act on behalf of the plaintiff A, B, and the plaintiffs could have a problem when the plaintiffs contacted with the media, so the lawyer could have a conflict with the media. After the request for the constitutional complaint on the plaintiffs, the lawyer representedd the above plaintiffs without any restriction of the plaintiffs, and expressed critical opinions or arguments about the order of this case in the interview with the media, it is clear that the above plaintiffs did not have a duty to do so, and that the plaintiffs' opinions and opinions were unconstitutional, and as a result, it cannot be said that the plaintiffs' opinions and opinions were made directly and directly against the general public as well as the above order of this case.

D) Determination on grounds of disciplinary action ④

(1) According to Article 47 of the Military Personnel Management Act and Article 7(1) of the Military Service Rule, a soldier shall faithfully perform his/her duties during his/her service period, shall not neglect his/her duties, and shall faithfully perform his/her duties without avoiding any danger or difficulty even though he/she complies with any danger or difficulty. Article 56 subparag. 1 of the Military Personnel Management Act provides that a soldier shall be one of the grounds for disciplinary action when he/she violates or

(2) In full view of the following circumstances: (a) Plaintiff B, while the rank of Plaintiff B is higher than that of Plaintiff B, could not have been located in a position to direct work and non-business affairs; (b) Plaintiff B, the main purpose of which Plaintiff B filed an application for a business trip with the Ministry of National Defense, was to collect data related to the public defender system to be published in the Korean-U.S. legal affairs seminars; (c) was to collect data actually necessary during the business trip; (d) Plaintiff B, in the Ministry of National Defense’s entry records, presumed to be less than the time of the business trip; and (e) there was no evidence to deem that Plaintiff B had discussed the claim for a constitutional complaint or constitutional complaint by only NN attorney during the business trip during the business trip period; and (e) it is difficult to find that Plaintiff B and A violated the duty of good faith as a soldier, this part of the grounds for the disciplinary action is not recognized.

E) Determination on grounds for disciplinary action five

According to the above facts of recognition, it can be recognized that the plaintiff B met the newspaper reporter or criticizes the direction of this case or the statement of the defendant minister and criticizes the remarks of the National Assembly members belonging to the fifth political party by raising comments on the law branch and the law branch, and criticizes the statements of the National Assembly members belonging to the fifth political party. However, it is difficult to judge that such acts of the plaintiff B are acts detrimental to the honor of his superior or opposing a specific political party or political organization as a member of the State Council, the defendant Minister has the authority to support the President in relation to the state affairs, direct and supervise the military affairs under the order of the President who is the person with the authority to join the National Armed Forces, and direct and supervise the Chief of Staff and the Chief of Staff of each service (Article 8 of the Act on the Organization of National Armed Forces). The acts of the plaintiff B without permission by criticisming the exercise of the legal authority of the defendant minister, which can be evaluated as damaging the military life of the military unit and impairing the military trust as a result. In addition, this part of the grounds for disciplinary action can also be recognized.

F) Sub-decision

③ Since some of the grounds for disciplinary action and the grounds for disciplinary action are not recognized, this part is subject to disciplinary action.

Although the disciplinary action cannot be taken as a matter of course, in a case where it is sufficient to recognize the validity of the pertinent disciplinary action only with other grounds for disciplinary action recognized even if some of the grounds for disciplinary action are not recognized (see, e.g., Supreme Court Decision 2002Du6620, Sept. 24, 2002). Therefore, examining whether each of the instant disciplinary action is appropriate.

3) Whether the discretionary authority is deviates from or abused (the adequacy of disciplinary justice)

A) Whether a disciplinary measure should be taken against a person subject to disciplinary action, who is a public official, is subject to the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure as an exercise of discretion significantly lacks validity under the social norms, the disciplinary measure is unlawful only when it is deemed that the person having the authority to take the disciplinary measure has abused discretion. If a disciplinary measure against a public official considerably lacks validity under the social norms, the disciplinary measure should be determined based on a specific case where it can be objectively and clearly deemed that the contents of the disciplinary measure are objectively unreasonable in light of various factors, such as the content and nature of the misconduct causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for the determination of disciplinary measures, etc. Even if the exercise of the authority to take the authority to take the disciplinary measures is based upon the discretion of the person having the authority to take the disciplinary action, it violates the public interest principle that should exercise the authority to take the disciplinary measure for the public interest, or is generally considered as a disciplinary cause, compared to the degree of flight, thereby violating the principle of equality, and thus violating the principle of equality (see.

B) Plaintiff A, B

As seen earlier, Plaintiff A and B led the act of misconduct recognized as the grounds for disciplinary action of this case, thereby disrupting the military command system, causing serious damage to the trust of the military and the military. According to the evidence Nos. 24 through 26, Plaintiff B may recognize the fact that he expressed his intention not to serve in the military and expressed his intention no longer in the military through a written statement, etc. submitted to the Army Headquarters Central Disciplinary Committee of the Army Headquarters, the Ministry of National Defense, and the Appeal Committee of the Military Disciplinary Action on Military Personnel.

However, according to the above evidence and the statements in Gap evidence No. 16, the plaintiff A was involved in the year 200.

Since the examination for appointment of military advocates passed the examination for appointment of military advocates on April 2003 and appointed them as military advocates, they faithfully performed their duties such as staff of an association, military court, military judicial officer, etc. In 2005, official commendation by the Army Commander was awarded in 2006, and that they were selected as students abroad in the process of high-ranking military forces in the U.S. law schools in 2008, it can be acknowledged that they faithfully performed their duties after passing the examination for judicial branch in 2005 and appointed as military advocates. The above plaintiffs' request for adjudication on constitutional complaint of this case did not violate the principle of prohibition of comprehensive delegation of legislation or the principle of clarity, and even if they were unable to obtain the plaintiffs' rights to be removed from the examination for appointment of military advocates, it seems that there was no possibility that it would infringe upon the plaintiffs' rights to be subject to disciplinary action by excessively restricting the plaintiffs' rights to be free from the direction of the Constitutional Court.

C) Plaintiff C, D, E, F

In light of the grounds of the disciplinary action against the above plaintiffs, each of the disciplinary actions against the above plaintiffs in this case cannot be deemed to have violated the disciplinary discretion by clearly and objectively unjust means.

4) Sub-determination

Therefore, all of the dispositions against plaintiffs A and B by the president of defendant president are unlawful, and all of the disciplinary actions against plaintiffs C, D, E, and F are legitimate.

4. Conclusion

Therefore, among the lawsuit of this case, the part of the defendant president's removal order and recruit assignment order, education period and original order against the plaintiff Gap, and the part of the defendant minister's removal order and replacement order for the plaintiff Eul's removal order are dismissed as unlawful. The part of the plaintiff Eul's claim against the plaintiff Eul and the plaintiff Eul's claim against the plaintiff Eul are accepted as all of the grounds, and the plaintiff C, D, E, and F's claim are dismissed as all of the grounds. The part of the judgment of the court of first instance against the plaintiff Eul and the part of the plaintiff's removal order against the above plaintiff Eul as of March 2009 and the part concerning the plaintiff Eul's removal order are revoked as they are unfair, and the part of the judgment of the court of first instance concerning the plaintiff Eul's removal order is revoked as of March 20, 2009, and the part of the lawsuit of this case which the plaintiff Gap's removal order is revoked as of March 20, 2009. The defendant president is dismissed as of March 18, 2009.