2016Guhap1095 Revocation of the determination of eligibility for burial in National Cemetery

A

President of the National Cemetery of the Republic of Korea

May 16, 2017

June 20, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On December 28, 2015, the defendant revoked the decision to be buried in the National Cemetery against the plaintiff on December 28, 2015.

1. Details of the disposition;

A. The Plaintiff’s father B (hereinafter “the deceased”) entered the Army on September 1, 1950 and died on March 16, 198 after he was discharged from the service on November 22, 1955.

B. On October 20, 2015, the Plaintiff filed an application with the Defendant for laying the deceased to rest in a national cemetery. However, the Defendant discovered that the deceased was deprived of military service and requested the National Cemetery Deliberation Committee (hereinafter referred to as the “Deliberation Committee”) to deliberate on whether the deceased would be buried in a national cemetery as follows.

A person shall be appointed.

C. On December 28, 2015, and December 24, 2016, the National Cemetery Deliberation Committee deliberated and resolved on the deceased's eligibility for funeral expenses as "damage to the honor of national cemeteries" under Article 5 (4) 5 of the Act on the Establishment and Operation of National Cemeteries (hereinafter referred to as the "National Cemetery Act"). Accordingly, on December 28, 2015, the Defendant rendered a decision on the Plaintiff on the eligibility for funeral expenses (hereinafter referred to as "disposition of this case"). On March 28, 2016, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission, but was dismissed on September 6, 2016.

[Ground of recognition] Facts without dispute, Gap's evidence 1 to 3, 5, 7, 9, Eul's evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the military register record on the deceased is written as 58 days away due to the cause not verified by the deceased, the record of arrest or punishment for the deceased cannot be confirmed. In addition, according to the statement of D, the deceased, who is the spouse of the deceased, the deceased, was returned to the military unit upon leave of absence on 1952, 12, and 28 for marriage, not by the left, but by the leave of absence from the head of the unit to which he belongs for marriage, due to the booming theory, which was not immediately returned to the military unit, and the brupt was returned to the military unit after the booming of marriage. As a serious confusion during the Korean War, the military register affairs were not handled normally, and thus, the disposition of this case by the Defendant without considering these circumstances was unlawful by abusing

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Article 5(4)5 of the National Cemetery Act provides that the Deliberation Committee shall grant the authority to deliberate on whether the honor of a national cemetery, which is a reason for being disqualified to be laid to rest in the National Cemetery, would damage the honor of the national cemetery, but the scope of persons subject to deliberation and determination does not separately provide for the criteria for deliberation. In light of the fact that the National Cemetery Act aims to preserve and honor their loyalty and meritorious deeds, if a person who has made sacrifice and contributions to the national cemetery died in the State or society, lay the national cemetery to rest in the national cemetery. In light of the fact that the National Cemetery Act aims at enhancing and enhancing the loyalty and meritorious spirit of the national cemetery, even if the person meets the requirements for eligibility to be laid to rest in the national cemetery solely based on his/her sacrifice and contribution, if it is recognized that the decedent would damage the

It can be said that the review committee grants a wide range of authority to the various reasons.

Therefore, barring any special circumstance, such as where the Deliberation Committee’s decision on whether to damage honorable manners significantly lacks objectivity, the result of the deliberation ought to be respected (see Supreme Court Decision 2011Du8871, May 24, 2012).

2) In full view of the following circumstances, it is reasonable to view that the Defendant’s instant disposition that the Deceased was determined as a person eligible for funeral expenses for burial in the National Cemetery, taking into account the foregoing evidence, evidence, and evidence No. 7 as mentioned above, and the purport of the entire pleadings, was lawful within the scope of discretion.

① The record of the deceased’s military register is written on December 28, 1952: The date of his/her reinstatement: the date of his/her reinstatement: January 26, 1953; the date of his/her reinstatement: February 24, 1953; and the date of his/her reinstatement: February 24, 1953; the deceased appears to have left his/her military register during his/her military service period, and there are no other special circumstances to suspect that the entry of the above military register in itself is contradictory or erroneous. Moreover, it is insufficient to recognize that the deceased returned to his/her military unit by obtaining leave from the head of the unit to which he/she belongs for marriage, but he/she was not immediately returned to the military unit due to his/her width.

② In light of the broad discretionary power of the National Cemetery Deliberation Committee on the determination of whether a person who has made a sacrifice or contribution to the State or society would be buried in a national cemetery with the intent to commemorate and honor his/her loyalty and meritorious deeds, as seen earlier, when the person died, and in light of the broad discretion held by the Deliberation Committee on the Determination of Whether he/she would damage the honor and honor of the deceased. If the deceased had the record of his/her refusal to war, the determination by the Deliberation Committee on the deceased’s eligibility to rest in the national cemetery may not be deemed to be contrary to the principle of proportionality or significantly lack objectivity, even considering the circumstances asserted by the Plaintiff.

③ According to the criteria for deliberation by the Ministry of Patriots and Veterans Affairs, the Plaintiff is obliged to be laid to rest in the military register for a short period of time during the time of war but is discharged from military service with voluntary return to their maturity during the period of war. However, there is no evidence to acknowledge such designation. Furthermore, according to the “Plan for the Improvement of the System for the Burial of National Cemetery (Evidence No. 7)” (Evidence No. 7) of the Ministry of Patriots and Veterans Affairs submitted by the Defendant, if he/she voluntarily returned to a national cemetery after his/her escape from the war, the Review Committee is omitted and each cemetery management is decided to be laid to be laid to rest in the National Cemetery for more than one month. Accordingly, the period of escape from military service is subject to deliberation and resolution by the Review Committee. Therefore, there is no procedural defect in the deliberation and resolution by the Review Committee.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judges and assistant judges;

Judges Park Jae-young

Judge Park Jong-sung