(영문) 서울행정법원 2016.12.27. 선고 2016구합4850 판결

The defendant's refusal to recommend the government's award that the president of B University retired from his retirement age in February 2012 shall be revoked.

Reasons

1. Details of the disposition;

A. On April 1, 1989, the Plaintiff was appointed as a full-time lecturer at the Female Fisheries University, and on April 1, 1991, the Plaintiff was female fishery.

The Plaintiff was appointed as an assistant professor at a university. After that, on March 1, 2006, the Plaintiff was appointed as a professor at the National University, and on February 29, 2012, the Plaintiff retired from office.

B. On October 31, 2011, the president of the B University held a public reward review committee and deliberated on whether a teacher retired from office at the end of February 2012 is subject to governmental reward recommendation. The Plaintiff was excluded from government reward recommendation on the ground that he was under disciplinary action, and the government reward was not reasonable by causing social harm through various media reports, etc. while in office. The president of the B University notified the president of the B University Cultural, Social, Scientific, and Research University on November 2, 201, and notified the Plaintiff of this fact around that time.

C. On March 15, 2012, the Plaintiff filed a civil petition related to the government reward at the National Examination, and the Minister of Education and Technology (amended by the Government Organization Act by Act No. 11690, Mar. 23, 2013) on April 13, 2012, the Minister of the Interior and Safety (amended by Act No. 12844, Nov. 19, 2014; hereinafter referred to as the “Ministry of the Interior”) recommended that the recommendation of retirement public officials should be made within one year from the date of retirement, except in extenuating circumstances. Accordingly, the Plaintiff’s recommendation of retirement public officials should be made within one year from the date of retirement upon the recommendation of the relevant university at the time of rewarding August 201 and February 2013, the Prime Minister prescribed that the Government reward service guidelines included in the period of service in the Government reward guidelines for the year 2015.

D. Through a national newspaper, the Plaintiff filed a civil petition containing the purport that “the President has retired from the Korean retirement age to the President,” and that “the President of B University shall be punished.” On March 10, 2014, the Defendant sent a reply that the Plaintiff was excluded from the recommendation of government rewards due to the reasons described in the foregoing paragraph (b).

[Ground of recognition] A without dispute, Gap evidence Nos. 1, 6 through 10, Eul evidence Nos. 1, 2 (including branch numbers), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. Relevant legislation

The entries in the attached Table-related statutes are as follows.

B. Determination

1) Unless otherwise specifically provided for in other Acts, a litigation seeking revocation shall be filed against the administrative agency that issued the disposition, etc. (Article 13(1) of the Administrative Litigation Act). The Plaintiff sought revocation of the act of refusal of governmental rewards to the Plaintiff by the president of BU, while seeking revocation of the act of refusal of recommendation by the president of BU, the Defendant did not become the president of BU, and sought revocation of the act of refusal of recommendation by the Minister of Education.

2) The Defendant’s petitioning for revocation of the president’s refusal to grant a license to the Defendant, who is not the president of B University, constitutes a lawsuit seeking performance of duties, even if the president of B University decided to revoke his/her refusal to recommend government rewards that he/she had taken at the time of retirement age retirement on February 2, 2012, which constitutes a lawsuit seeking performance of duties (see, e.g., Supreme Court Decision 91Nu4126, Feb. 11, 1992). In light of the interpretation of the current Administrative Litigation Act, a lawsuit seeking performance of duties falls under any of the types of administrative litigations listed in Article 3 of the Administrative Litigation Act. Thus, the instant lawsuit constitutes a lawsuit that is not permitted under the Administrative Litigation Act.

3) In order for a rejection disposition to be the subject of an appeal litigation, the public authority that directly affects the applicant’s rights and obligations should be refused, and furthermore, there should be rights under the laws and regulations or sound reasoning that make such an application to citizens. Unless such rights are acknowledged, such application does not constitute a rejection disposition that is the subject of an appeal litigation since it is nothing more than urging an administrative agency to exercise its authority (see, e.g., Supreme Court Decision 2002Du12489, Oct. 23, 2003). Accordingly, we examine whether the Plaintiff has a right under the laws and regulations or sound reasoning to apply for a decoration or commendation (hereinafter collectively referred to as “ad

Article 80 of the Constitution provides that "The President shall award a decoration or other honor as prescribed by Act." According to Article 5 (1) of the former Awards and Decorations Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter referred to as the "former Awards and Decorations Act"), the head of a central administrative agency, etc. shall recommend a decoration. According to Article 7 of the former Awards and Decorations Act, the President shall determine a person eligible for a decoration after deliberation by the State Council. In addition, according to Articles 13 and 14 of the former Government Commendation Regulations (amended by Presidential Decree No. 24314, Jan. 16, 2013; hereinafter referred to as the "former Government Commendation Regulations"), the President and the Prime Minister's commendation are submitted to the Minister of Government Administration and Home Affairs after deliberation by the Public Service Council established by the heads of central administrative agencies, the heads of subordinate agencies of the Prime Minister, the heads of peace Policy Advisory Council, and the head of Seoul Special Metropolitan City Council shall grant a decoration after obtaining approval from the President or Prime Minister.

① A decoration is a matter belonging to the President’s former authority and is subject to the authority of the President or the Prime Minister to recommend a decoration, etc.; thus, the exercise of such authority is merely an internal act or interim disposition of an administrative agency and cannot be deemed a legal act that directly affects the rights and obligations of the people. ② Government reward service guidelines setting the subject and requirements of reward are merely an internal standard established by the Ministry of Government Administration and Home Affairs for the recommendation of the subject of reward, and there is no statute having external effect, so it is difficult to deem that the Plaintiff has the authority to apply for decoration, etc. on the basis of the above guidelines. ③ It is difficult for the President to grant decoration and other merit to the subject of decoration as a state action with a high level of political nature that serves as the head of the State, and the issue of decoration is determined by the President on his own discretion after deliberation by the State Council, and it is difficult to view the commendation as an application for decoration or a person who has made outstanding results in education, games, works, etc. (Article 2 of the former Regulations on Official Commendation).

Therefore, the fact that the president of B University did not recommend the Plaintiff to the Defendant as the subject of the Prime Minister’s commendation, but that the Prime Minister did not give an official commendation to the Plaintiff cannot be deemed a disposition that is subject to appeal litigation.

4) For the above reasons, the lawsuit of this case is unlawful and the defendant's defense prior to the merits pointing this out is with merit.

3. Conclusion

It is so decided as per Disposition by the assent of all participating Justices on the bench that the lawsuit of this case is unlawful and dismissed, and that the losing plaintiff bears the litigation costs