(영문) 대전지방법원 2018.11.14.선고 2018구합101177 판결

A. On March 3, 2001, the Plaintiff was appointed as a D noncommissioned Officer, and served at the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit headquarters from April 29, 2017.

B. On April 21, 2017, the Plaintiff was sentenced to a suspended sentence of one-year imprisonment with labor for committing an offense of attempted criminal acts committed by military personnel, etc., as set forth below at the Ⅱ General Military Court of the 2nd Military Command, and the said judgment became final and conclusive around that time. At that time, the Plaintiff was detained for about 49 days and was tried.

A person shall be appointed.

C. On May 12, 2017, the Plaintiff was subject to three months of suspension from office due to a non-violation of dignity maintenance (sexual assault, etc.) by the 2nd fleet commander of D. D on the said misconduct.

(d) The Committee for the Review on Incidental Investigations into Active Service at the D 2 World Headquarters: The Plaintiff shall be assigned to the Committee for Review on Active Service at D Headquarters.

On August 10, 2017, the committee for examination on discharge from active service of the headquarters was referred to the committee for examination of discharge from active service. On August 10, 2017, Article 49 of the Enforcement Decree of the Military Personnel Management Act, Article 56 (2) 1 of the Enforcement Rule of the Military Personnel Management Act, Article 56 (2) 1 of the Enforcement Rule of the Military Personnel Management Act, and Article 56 (3) of the Enforcement Rule of the Military Personnel Management Act, and Article 3 of the Act are "persons who interfere with their duty

E. On August 16, 2017, the Defendant rendered a disposition to discharge from active service in line with the resolution of the committee for examination on discharge from active service by the headquarters (hereinafter “instant disposition”).

F. On November 30, 2017, the Plaintiff dissatisfied with the instant disposition and filed a petition review with the D Headquarters Military E, and D Headquarters Military E revoked the instant disposition and rendered a decision of citing the Plaintiff’s petition review.

G. After that, the Defendant filed a petition for review against the foregoing decision to review the petition, and the D Headquarters military personnel SE revoked the decision to review the petition on February 1, 2012, deeming the instant disposition lawful.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 6, oral argument

The purport of the whole

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In view of the fact that the Plaintiff naturally and naturally divided talks with the victim, the Plaintiff’s act was suspended depending on the victim’s speech that the Plaintiff intending to dance with the victim, and that such act was committed in good faith, and that there was no problem in privacy, it is difficult to view that the act alone constitutes “the Plaintiff’s act alone,” “a person who may interfere with his duty or damage the prestige of the military,” “a person who has a defect in nature that may cause danger to others,” or “a person who has a defect in nature that may cause danger to others.”

2) Even if a part of the grounds for non-conformity with active duty service constitute a ground for non-conformity with military service, the instant disposition is unlawful by deviating from and abusing discretionary authority, in full view of the following: (a) the military service was rendered in good faith and received five times times; (b) there was no past disciplinary action and criminal punishment; (c) his mistake is in profoundly against himself; and (d) the victim was shot the Plaintiff’s wife.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) Relevant legal principles

A) Under the Military Personnel Management Act, the system of non-conformity with active duty service under the Military Personnel Management Act is a system of human thoughts that enhances the efficiency of military organization operation by excluding a person who is not qualified to perform a soldier’s duty from performing his/her duty, and a decision on whether a person is unfit to perform an active duty service under the Military Personnel Management Act is a discretionary act (see, e.g., Supreme Court Decision 2004Du107, Apr. 27, 2004). In examining whether the aforementioned system is deviates from or abused from the discretionary authority, the special nature of the military should be sufficiently considered in light of the purport of

B) However, considering the above special characteristics of the military, a military person’s status is guaranteed by stipulating that the military person shall not be excluded or removed from active duty against his will, except as otherwise provided for in Article 44 of the Military Personnel Management Act. The current military service incidental disposition under Article 37(1)4 of the Military Personnel Management Act is a disposition of deprivation of his status against his will, although the provision is abstract, Article 49(1) of the Enforcement Decree of the Military Personnel Management Act, and Article 56 of the Enforcement Rule of the Military Personnel Management Act provides for individual reasons for non-conforming to active duty service. Thus, for the disposition of non-conforming to active duty service against a military person, a specific circumstance must be reasonably determined to support the fact that the military person falls under the grounds for non-conforming to active duty service as prescribed by law. The assertion and burden of proof are against the Defendant, the disposition authority.

2) Specific determination

In full view of the following circumstances acknowledged by adding the whole purport of the arguments to each of the above facts of recognition and evidence mentioned above, Gap evidence Nos. 5 through 9 (including the stal number if there is a lot number), it is insufficient to conclude that the evidence submitted by the defendant alone falls under the category of "scapf (2) 1 of Article 56 of the Enforcement Rule of the Military Personnel Management Act that impedes the plaintiff's work or damages military dignity, or that there is a defect of character that may cause danger to others at the time of service or at the time of service under subparagraph 3 of Article 56 (2) of the Enforcement Rule of the Military Personnel Management Act, and it is insufficient to prove that there is a reason for non-conformity with the active duty service. Since there is no other evidence to prove otherwise, the above argument by the plaintiff is with merit (in this case, it is not decided separately as to the plaintiff's assertion of deviation or abuse

A) Article 56 (2) 1 of the Enforcement Rule of the Military Personnel Management Act provides that "a person who interferes with his/her duties due to the brupting of privacy or damages military dignity" is "no distance by doing an act according to the brupt." However, it is difficult to find out that the Plaintiff committed an act before the instant case, in terms of privacy such as women's problems, etc., so that he/she could be evaluated as a brut because of the lack of distance. In addition, in the course of performing on duty, the Plaintiff committed the above act as a contingent according to the brut impulse, and immediately took part in it according to the victim's intention to refuse the above act. It is difficult to view that the said act was directly related to private life, and it is difficult to view that the Plaintiff's act was likely to continue the above act, in light of the motive, circumstance, contents, and subsequent circumstances of the above act.

B) In addition, the Plaintiff did not have the ability to be subject to criminal punishment or other disciplinary action prior to the instant case, and in light of the work experience, commendation details, family members, and the original contents of the materials, etc. of the personnel record list, the Plaintiff appears to have faithfully carried out a military life without any particular issue in relation to the surrounding fellows, superior officers, and subordinates, and it is difficult to find any other materials to verify that the Plaintiff had the character of danger to others prior to the instant case.

Of course, taking into account the circumstances leading up to the Plaintiff’s crime and the fact that a sex crime disturbs the military discipline and weakens the military unity, it may be deemed that the above misconduct is not against the law. However, in light of the following: (i) the Plaintiff is not planned, but attempted to dance with the victim as a result of contingent impulse; (ii) the Plaintiff was detained for about 49 days at the time when he was tried by the military court due to the above misconduct; (iii) the Plaintiff was under detention for about 3 months; (iv) the Plaintiff was under heavy disciplinary action for suspension; (iii) the Plaintiff was under detention from the victim; and (iv) the victim was under suspicion with the intention of the victim; and (iv) it is difficult to see that the Plaintiff’s social relative relationship is relatively clear that there is a high possibility of doing the same act in the future, it is difficult to readily conclude that the above misconduct does not directly mean that the Plaintiff has any danger to another person.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges

Judges Lee Chang-chul

Judges Go Young-sik

Judge Hain and Spot

Site of separate sheet

Relevant statutes

/ Military Personnel Management Act

Article 37 (Discharge from Military Service or Removal from Military Register without one's Will)

(1) The following persons shall be discharged from active service following deliberation by the committee for examination on discharge from active service of each armed force:

may be charged to another person.

1. A person incompetent for active service due to a mental or physical disorder;

2. An officer who has failed to be promoted from the same rank twice pursuant to Article 32: Provided, That in the case of Second Lieutenant, he/she shall be promoted once;

A person who has fallen rapidly;

3. Where deemed necessary to discharge from active service for adjustment of the number of troops in reducing or restoring the number of troops;

Persons;

4. A person specified by Presidential Decree as incompetent for active service.

Enforcement Decree of the Military Personnel Management Act

Article 47 (Discharge from Active Service without one's Will)

(1) A person falling under Article 37 (1) 1, 2, or 4 of the Act shall be subject to resolution by the committee for examination on discharge from active service.

The discharge from active service within three months from the date of discharge, and a person who falls under Article 37 (1) 3 of the Act shall be discharged from active service within one year.

discharged from military service.

(2) The person having the right to discharge shall be determined by the deadline under paragraph (1).

Article 49 (Discharge from Active Service of Persons Disqualified for Active Service)

(1) "Ground specified by Presidential Decree as being unfit for active service" in Article 37 (1) 4 of the Act.

The term "person" means any of the following persons:

1. A person who is unable to perform duties equivalent to the relevant rank due to a lack of ability;

2. A person deemed unable to serve on active duty due to a defect in the nature of the case;

3. A person who has no sex to perform his/her duties or waives his/her duties;

4. A person who has other ability or moral defect that interferes with the development of the military.

(2) Guidelines and examination for persons inappropriate for active service and other necessary matters shall be prescribed by Ordinance of the Ministry of National Defense.

The matters shall be determined.

Enforcement Regulations of the Military Personnel Management Act

Article 56 (Standards for Persons Disqualified from Active Service)

(1) A person prescribed in Article 49 (1) 1 of the Decree shall be any of the following persons:

(c)

1. A person who has no developmental ability or lacks ability;

2. A person who lacks judgment ability;

3. A person who is lacking in command and command;

4. A person with low intelligence level.

5. A person incapable of receiving military repair education;

A person prescribed in Article 49 (1) 2 of the Decree shall be any of the following persons:

1. A person who obstructs his/her service or damages military dignity due to his/her private life;