[1] Whether the designation of defense materials and the revocation of such designation constitutes a discretionary act under the Defense Acquisition Program Act (affirmative), and the criteria for judicial review of discretionary act

[2] The case holding that since there is no error in fact-finding that is the basis of the exercise of discretionary power in relation to the revocation of the designation of defense materials, and the designation of defense materials is revoked in accordance with the necessity of public interest in promoting economic efficiency and efficiency as well as the improvement of defense power directly connected to national security and fostering of the defense industry, it cannot be deemed that there

[1] In full view of the provisions of Articles 34(1), 48(1) and (3), 39(1), and 64(1) of the Enforcement Decree of the Defense Acquisition Program Act, designation of defense materials and revocation of such designation shall be subject to the determination of facts and violation of the principle of proportionality and equality, in light of the regulatory form, etc., by considering the fact that the designation of defense materials and revocation of such designation belong to the discretionary act to which the administrative agency is granted discretion, and in the judicial review of discretionary act, by considering the possibility of public interest judgment based on the discretion of the administrative agency, the court shall, without drawing the independent conclusion, only examine whether the act in question deviates or abused from or abused from the discretionary authority.

[2] The case holding that there is no error in fact-finding, which is the basis of the exercise of discretionary power in relation to the revocation of the designation of defense materials, and that since the designation of defense materials is revoked in accordance with the needs of public interest for the improvement of defense power directly connected with the national security and the promotion of defense industry in order to pursue economic efficiency and efficiency, it cannot be deemed that there is an error of law that deviates

[1] Articles 34(1), 48(1) and (3) of the Defense Acquisition Program Act; Articles 39(1) and 64(1) of the Enforcement Decree of the Defense Acquisition Program Act / [2] Articles 34(1) and 48(1) and (3) of the Defense Acquisition Program Act; Articles 39(1) and 64(1) of the Enforcement Decree of the Defense Acquisition Program Act

Spain Co., Ltd. (Law Firm Re-ownership, Attorneys Yu Sung-woo et al., Counsel for the defendant-appellant)

Korea

Seoul High Court Decision 2009Na69595 decided April 22, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged the facts based on the adopted evidence, and determined that the revocation of the designation of the defense materials of this case, which was conducted on a different premise, was unlawful, since the two industries developed only obtained a provisional evaluation of the suitability for military use in the evaluation of the land operation test, and did not verify the ability to load, and it clearly did not reach the level of guaranteeing objective quality, since the provisional evaluation of the suitability for military use in the interim military use was a temporary determination for continuing a project in the research and development or for continuing a project in the subsequent stage, or for continuing a project in the subsequent stage. Therefore, even though the objective guarantee of quality was not secured as well as the ease of procurement under Article 48 (3) 1 of the Defense Acquisition Program Act, it was unlawful.

However, we cannot accept the above judgment of the court below for the following reasons.

In full view of the provisions of Articles 34(1), 48(1) and (3), 39(1), and 64(1) of the Enforcement Decree of the Defense Acquisition Program Act, the designation and revocation of designation of defense materials shall be subject to the discretion of an administrative agency in light of its regulatory form, etc., and the judicial review of discretionary actions is subject to the discretion of the administrative agency, taking into account the existence of a public interest judgment based on the discretion of the administrative agency, the court shall, without drawing the conclusion of the autonomy, examine only whether there is deviation or abuse of discretionary power, and the examination of whether there is deviation or abuse of discretionary power is subject to the determination of facts, violation of the principle of proportionality and equality.

According to the reasoning of the judgment below and the records, the Administrator of the Defense Acquisition Program Administration determined that there was a "performance" as a result of the technical examination and evaluation of the system for promotion of problems developed by the two industries for both civilian and military purposes on May 25, 2006. The Board of Audit and Inspection issued a request to the Administrator of the Defense Acquisition Program Administration on August 30, 2006 to cancel the designation of defense materials for the promoted machine and to review the designation of defense materials after determining the suitability of the promoted machine for both civilian and military purposes development. As a result of the evaluation of the land operation test of the two industries on June 29, 2007, the Administrator of the Defense Acquisition Program Administration issued a provisional evaluation of the suitability of military use suitability as a result of the evaluation of the system for promotion of the two industries, which was manufactured by the evaluation of the suitability of the above provisional use of the defense industry, and it can be seen that there was no violation of the principle of efficiency and efficiency of the safety operation of the defense industry at the time of revocation of the designation.

Nevertheless, the judgment of the court below that held the Defendant liable for damages on the premise that the disposition of this case was an unlawful act of deviation from or abuse of discretionary power, is erroneous in the misunderstanding of legal principles as to judicial review of discretionary act, which affected the conclusion of the judgment, and it is clear

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

Justices Ahn Dai-hee (Presiding Justice)