Whether a judgment on the suitability to active duty service under the Military Personnel Management Act is a discretionary act (affirmative), and the criteria for determining whether such judgment is illegal

In making a decision on whether the military personnel management is inappropriate to serve on active duty under the Military Personnel Management Act, the judgment of the military authorities shall be respected, in principle, at the discretion of the Chief of Staff or relevant agencies, such as the committee for examination on discharge from active service

Article 37 (1) of the Military Personnel Management Act, Article 49 of the Enforcement Decree of the Military Personnel Management Act, Article 56 of the Enforcement Rule of the Military Personnel Management Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff (Attorney Noh Jeong-soo, Counsel for plaintiff-appellant)

The Minister of National Defense

Seoul High Court Decision 96Gu6457 delivered on January 16, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

The court below acknowledged that the plaintiff who was appointed as a short-term officer was living together with the non-party and was pregnant before the marriage, and the reasons and circumstances leading up to the decision. In light of the above facts, the court below held that the plaintiff's act constitutes "a person who interferes with military service or damages military prestige" under Article 37 (1) 2 of the Military Personnel Management Act and Article 49 (1) 1 of the Enforcement Decree of the same Act, which is the non-party under Article 56 (2) 2 of the same Enforcement Decree of the same Act, because the non-party's life is dissatisfy, or caused damage to military prestige. In determining whether it is inappropriate to serve on active duty, the court below's decision should be respected by the military authorities in principle, such as the Chief of Staff or the committee for examination on discharge from active service, unless there is a clear violation of laws and regulations (see Supreme Court Decision 80Nu291, Sept. 9, 1980). 200>

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)