(영문) 서울고등법원 2018.7.19. 선고 2018누76 판결

2. On January 18, 2012, the Minister of National Defense’s discharge from active service against the Plaintiff and the disciplinary action taken on October 20, 201 by the Chief of Staff at the Army (one month in suspension from office) shall be revoked.

3. The total costs of the lawsuit shall be borne by the Defendants.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

This court's reasoning is identical to the corresponding part of the judgment of the court of first instance (No. 3 through No. 5). Thus, this court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the Defendant’s defense prior to the merits

This court's reasoning is that the corresponding part of the judgment of the court of first instance (Articles 8(2) and 420 of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act) is the same as that of the corresponding part of the judgment of the court of first instance.

3. Whether each of the dispositions of this case is legitimate

A. As to the instant disciplinary action

1) As to the violation of the duty to obey

A) The core of the grounds for disciplinary action, excluding the grounds for disciplinary action related to the interview of the press following the filing of the instant constitutional complaint, is that the Plaintiff, etc.’s filing of the instant constitutional complaint with respect to the instant order violates a soldier’s duty to obey the order. In addition, the grounds for disciplinary action (i) did not comply with the duty to make a prior recommendation in terms of procedural aspects; and (ii) emphasizes that the filing of the constitutional complaint by multiple military advocates constitutes a group of military affairs outside the military affairs. Therefore, first, the determination of whether the exercise of the soldier’s right to demand a trial, such as the constitutional complaint, against the instructions and

B) Article 27(1) of the Constitution guarantees the right to a trial, including the right to a constitutional trial, as a fundamental right of the people. Article 37(2) of the Constitution provides that all freedom and rights of the people may be restricted by law only in cases where it is necessary for national security, maintenance of order, or public welfare. However, even in cases where it is restricted, the fundamental contents of freedom and rights may not be infringed upon. Meanwhile, inasmuch as a soldier has a special status relationship, which is a member of a military organization that directly exists to ensure the existence and security of the State, it is necessary to achieve the purpose of existence. To a certain extent, a more fundamental right may be restricted than that of the general public, but in such a case, the constitutional principles of restriction

C) A soldier must obey a superior’s order, taking into account the special characteristics of the military that requires the establishment of a command command system by a superior uniform. Article 23(1) of the Military Service Rule provides for the same purport. In the event a soldier exercises a right to trial against a superior’s instruction or order with a duty of general obey, the right to trial may appear in the form of conflict with a soldier’s duty of obey.

However, non-compliance with a superior’s instruction or order and exercising a superior’s right to a trial on the ground that it is illegal and unconstitutional ought to be distinguished. A court or the Constitutional Court’s filing of a legal judgment does not directly violate a superior’s instruction or order, and even after the commencement of the trial proceedings, it is difficult to see that the exercise of the right to a trial directly causes serious harm or confusion to the military. As long as a soldier complies with a superior’s instruction or order, it cannot be deemed that a soldier filed a lawsuit or filed a constitutional complaint against his/her superior’s instruction or order does not necessarily mean that he/she expressed his/her superior’s intent to refuse to comply with the superior’s instruction or order. In the past, a soldier’s claim for a judicial review against his/her superior’s instruction or order ought to be considered as a defeasible or anti-consible act, and the attitude that extremely refuses to trial on all state powers ought to be contrary to the principle of a rule of law allowing a judicial review.

Therefore, in a case where a soldier exercises his/her right to a trial against a superior’s instructions or orders, the purpose is only to correct illegal and unconstitutional orders and orders, and, unless a soldier destroys a superior relationship inside the military, takes the outside form of the right to a trial as a means of appeal, or otherwise does not intend to do so, it shall be deemed as a legitimate exercise of fundamental rights, and thus, it shall not be deemed as a violation of a soldier’s duty to obey orders.

D) The instant order is to restrict the freedom of reading, which is the core of mental freedom, which is the basis of freedom of learning and thought. However, the books prohibited by the Defendant’s entry cannot be deemed as a measure that harms the nation’s existence and safety and free democracy system or seriously undermines military personnel’s mental power, and rather, they include books that are accepted as cultural books of high-quality in society, such as those selected by academic societies or media organizations as good books. Accordingly, even if the instant order violated military personnel’s mental freedom excessively, it could have a doubt that it is unconstitutional. Even if examining all the evidence of this case, the Plaintiff, etc. claimed the instant constitutional complaint in order to consider the instant order as being subject to the decision of the Constitutional Court, which is a method stipulated by the law, and there was no other purpose or intent. In light of the situation that the instant order could have been destroyed by the culture system, which led to the enforcement of the instant constitutional complaint to strengthen the unconstitutionality of the instant order, the Plaintiff, etc., at the time, did not appear to have caused serious damage to the culture system.

E) Considering the above circumstances in light of the legal principles as seen earlier, the act of the Plaintiff et al. filing a constitutional complaint against the instant order can be deemed an exercise of the right permitted by the Constitution and laws, barring any special circumstance to deny the substance of the exercise of the right. It cannot be evaluated as a violation of a soldier’s duty to

2) As to the existence of a prior recommendation obligation

A) As seen earlier, Article 27 of the Constitution guarantees the right to trial as one of the fundamental rights and, in light of the principle of the rule of law, which declares the legal reservation as a method of restricting the fundamental rights under Article 37 of the Constitution, a disciplinary action against a soldier should have the legal basis for restricting the exercise of such right to trial if the disciplinary action against a soldier was based on the ground that he or she exercised the right to trial. In addition, such legal provisions should be made clear to the extent that it can decide his or her behavior by forecasting in advance whether the disciplinary action against a soldier is an act prohibited from being subject to criminal punishment and what he or she is permitted. However, it is not permissible to regard the disciplinary action as a basis for the disciplinary action.

B) Articles 24 and 25 of the Military Service Rule enacted upon delegation by the Military Personnel Management Act provide for a proposal and grievance review. The above provisions are intended to secure the legality and validity of an order by allowing a superior officer to present his/her opinion on a mistake or error before the order is implemented, and where it is determined that there is a situation of unfair treatment, unreasonable inconvenience, or disadvantage, a request for counseling, proposal, or grievance review may be made according to the chain of command (Article 25(1) of the Military Service Rule). Thus, the interpretation of the provision that imposes a duty on a soldier to make a proposal or grievance review is beyond the ordinary meaning of the language and text. Furthermore, in light of the language and structure of the relevant statutes, the purport of the proposal system is to ensure the legality and validity of an order by allowing a superior officer to present his/her opinion on his/her fault or error before the order is implemented, and it is difficult to view it as a procedure in advance prior to the exercise of a soldier’s right to request a trial.

C) Article 25(4) of the Military Service Rule provides, “A soldier shall not request a resolution of the grievance related to his/her service outside the military through filing a petition, signing a group, or other means that are not prescribed by law.” This means that a soldier imposes an obligation on a soldier to not resolve the grievance such as disadvantageous disposition related to his/her service through “other methods that are not prescribed by law”, and the interpretation of it means that a soldier must resolve the grievance related to his/her service in accordance with law. Moreover, there is no room to suspect the exercise of the right to trial, such as filing a constitutional complaint.

D) Therefore, the provisions of Articles 24 and 25 of the Military Service Rule alone cannot be deemed as the grounds for disciplinary action that the Plaintiff violated the obligation to make a prior recommendation prior to the instant request by the present legal personnel. Therefore, it cannot be said that the Plaintiff violated the obligation to make a prior recommendation.

3) As to the violation of prohibition against collective action outside the military service

A) Article 13(1) of the Military Service Rule provides that “A soldier shall not engage in any collective activity for any activity other than military service.” Here, “collective activity for any activity other than military service” refers to a group of soldiers with a specific aim that undermines the essence of military service, such as undermining military discipline or violating this part of military service (see Supreme Court Decision 90Nu4839, Apr. 23, 1991).

Unless otherwise stipulated in the statutes prohibiting or restricting the exercise of a soldier’s fundamental right, in order to establish a specific purpose that may harm the essence of military service, such as undermining the discipline of military service as a soldier or violating this portion of military service, the actual exercise of a soldier’s right should be denied and specific and objective circumstances sufficient to regard it as a violation of norm should be recognized. In other words, the exercise of a soldier’s fundamental right should not be readily determined as a collective act.

B) As seen earlier, in light of the details and situation at the time of the filing of the instant constitutional complaint by the Plaintiff, etc., the filing of the constitutional complaint jointly by the Plaintiff, etc., a military advocate, cannot be deemed as a collective act for a specific purpose detrimental to the essence of military service, such as undermining military discipline or violating the aforementioned portion.

C) Ultimately, we cannot find that the Plaintiff violated its duty to obey through a collective action prohibited by Article 13(1) of the Military Service Rule.

4) As to the violation of laws and regulations on public relations and the duty to maintain dignity

A) If the purport of the entire argument is added to the evidence Nos. 1-1 and 2 of the evidence No. 1-2, the plaintiff decided to appoint a DNA lawyer as an attorney to act on behalf of the claimant for constitutional complaint, and examined the draft of the above draft of the petition for constitutional complaint on Oct. 17, 2008, and discussed on Oct. 17, 2008 that "if the military advocate, who is the petitioner, directly contact with the press, may cause problems such as violation of the National Defense Directive," and that "the attorney is in contact with the press." Since the receipt of the written petition for constitutional complaint of this case, D lawyer conducted an interview directly or by telephone with the press, such as newspapers and broadcasting, in relation to the instant constitutional complaint of this case, from the day of the receipt of the written petition for constitutional complaint, it is recognized that it was concentrated on broadcasting, newspapers, Internet media, etc.

B) However, there is no ground to view the act of the attorney of the instant constitutional complaint as the Plaintiff’s act of responding to the interview of journalists regarding the case that he accepted, as well as the Plaintiff’s act of contact with the media, such as interview, and thus, it cannot be deemed as a violation of the duty of compliance with the statutes on public relations.

In addition, there is no evidence to acknowledge that the Plaintiff publicly announced the opinion that impregnating the measures of the Ministry of National Defense or slandered and insulting the military brain, and so long, even if the Plaintiff’s attorney conducts an interview with such intent, it cannot be deemed as a violation of the Plaintiff’s duty to maintain the dignity.

C) Therefore, this part of the grounds for disciplinary action is not recognized.

5) Sub-decisions

Ultimately, on the premise that the Plaintiff’s failure to comply with the direction system prior to the filing of the constitutional complaint pursuant to the provisions of the Military Service Rule, constitutes a violation of the duty to obey statutes. The instant constitutional complaint constitutes a collective act other than military service, which constitutes a violation of the duty to obey as a group of crimes other than military service. Since the instant disciplinary cause is not recognized to the effect that the Plaintiff’s failure to comply with the interview of the media after the filing of the constitutional complaint, and constitutes a violation of the duty to observe statutes and maintain dignity, the instant disciplinary action

B. As to the discharge disposition of this case

1) If the purport of the entire argument is added to the statement No. 3-1 or No. 3-4 of the evidence No. 3, the plaintiff is referred to the Military Personnel Management Act, Article 37(1)4 of the Military Personnel Management Act, Article 49(1)2 of the Enforcement Decree of the Military Personnel Management Act, and Article 56(2)2 and Article 57 subparag. 2 and 7 of the Enforcement Rule of the Military Personnel Management Act on the grounds that the plaintiff was subject to heavy disciplinary action pursuant to Article 56(2)2 and Article 57 subparag. 2 and 7 of the Enforcement Rule of the Military Personnel Management Act. The investigating committee cited the grounds for disciplinary action that served as the basis of the instant disciplinary action as the "inademncy," and the investigating committee reported that the plaintiff had the grounds for non-conformity with the active duty service. Ultimately, it is recognized that the instant disposition

2) However, insofar as the instant disciplinary cause is not acknowledged as seen earlier, it cannot be acknowledged that the same details of inappropriate matters as the grounds for disciplinary action cannot be found. Therefore, the instant discharge disposition based on the details of inappropriate facts is unlawful, as the grounds for the relevant disposition are not relevant. This cannot be viewed differently even if considering the circumstances that the instant disciplinary action and the instant discharge disposition based on an examination of non-conformity with active

4. Conclusion

Each disposition of this case must be revoked in its entirety because it is unlawful. The judgment of the first instance court, which has different conclusions, is improper. Accordingly, it is revoked, and the plaintiff's claim is accepted.