2012Nu3349 Revocation of a decoration for the persons of distinguished services to the national independence

A

The Minister of Patriots and Veterans Affairs

Seoul Administrative Court Decision 201Guhap22020 decided December 23, 2011

October 30, 2012

December 21, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's decision of revocation of decoration to the persons of distinguished services to the national independence on April 19, 201 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

In full view of the purport of the entire pleadings, the following facts are recognized in each entry of Gap evidence 1 through 3, 8, 9, 11, 12, Eul evidence of Nos. 1 through 14, 18 (including paper numbers):

[1]

around July 0190, the Minister of Patriots and Veterans Affairs prepared a public protocol on the plaintiff's attached B.

The content of the ○○ public record was that B, while engaging in the activities of the New Triju branch, was in around November 1929, in order to spread the release of detained students, who were the victim, through the Gwangju student movement, in Seoul with a view to spreading it to the public opinion on a national scale, and it was recognized that B had been able to receive imprisonment for a period of two years and six months, and that it was regarded as a part corresponding to the pets of the Order of Merit of the National Foundation.

Accordingly, on August 15, 199, the President awarded the Order of Merit to the Deceased.

At the time of the ○○ Order, a certificate of decoration (No. 3) was issued under the name of the President, and the name of the President, the Prime Minister, and the Minister of Government Administration was stated in this Order, and the official seal of the President and the Minister of Government Administration was stamped.

[2]

Around January 1991, the OB died (hereinafter referred to as "the deceased"), and around March 2004, about 13 years later, the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule was enacted, and around December 2009, the 4,389 Korean Research Institute of Incorporated Association published the 'The Korean National Issues of Incorporated Association' in advance.

around February 2010, ○○ Defendant sent to the Plaintiff a written statement (Evidence A No. 1-1) stating that “Guidance for the Submission of Materials Relating to Public Defects by Persons of Distinguished Service to Independence,” and that the Deceased was recorded in the aforesaid pro-Japanese pre-identification, so it changed to send the supporting materials, and that the supporting materials are reflected in the Committee’s review to discuss whether or not the deceased’s public defects.

[3]

On November 11, 2010 and November 15, 2010, the "Examination Committee for Revocation of a decoration for Persons of Distinguished Service to the Independence of the Defendant" passed a resolution on the cancellation of decoration for the Deceased.

On November 23, 02010, the defendant requested the Minister of Public Administration and Security to cancel the decoration to the deceased, and accordingly, the Minister of Public Administration and Security submitted to the State Council a proposal to cancel the decoration to the deceased.

The revocation of decoration by the State Council on December 21, 0201 was not decided by the revocation of decoration on the deceased on the ground that it requires a careful review.

On April 5, 2011, the State Council passed a resolution to revoke decoration on the deceased.

With respect to ○○, a document (No. 10) No. 10 was prepared, which read “the proposal for the cancellation of the grant of honor (the cancellation of decoration based on the friendlyness of independence)” was prepared, and this document was made to be an internal decision by the addressee, and the content was that the written revocation of the grant of honor, which was deliberated upon by the State Council, approved the draft for the cancellation of the grant of honor.

On April 5, 2011, the Minister of Public Administration and Security and the Prime Minister signed the above documents, and the President signed the above documents on April 6, 2011.

[4]

On April 6, 2011, after the signature of the president such as ○○, the Minister of the Interior and Safety sent a document (Evidence No. 4) stating that the cancellation of a decoration (as 19 persons of distinguished service to the independence) to the Defendant, and that the cancellation of a decoration against the deceased was confirmed by the State Council resolution and by the President again, the Minister of the Interior and Safety made a request for all measures to recover the decoration and related articles in accordance with Article 8(1) of the Awards and Decorations Act.

Pursuant to ○○, on April 19, 2011, the Defendant sent to the Plaintiff a written statement (Evidence A 2-2) stating that “Notice of Decision of Revocation of a decoration for a Person of Distinguished Service to Independence,” under his own name, and the Plaintiff received the said document around that time.

(hereinafter referred to as "the document of this case")

○ The document of this case was indicated as follows:

국가보훈처수신자 A귀하제 목 독립유공자 서훈취소 결정 통보1. B 선생의 독립유공자 서훈과 관련하여 다음과 같은 사항을 알려드리게 됨을 매우 안타깝게 생각합니다.2. 귀하의 부친이신 B 선생은 일제시기 독립운동에 참여하신 공적으로 정부에서 1990년 건국훈장 애족장을 추서하였으나, 2009년 일제시기의 행적과 관련하여 공적흠결 자료가발견되어 국가보훈처에서는 귀하에게 이에 대한 소명자료의 제출을 안내드린 바 있습니다.3. 국가보훈처에서는 제출하신 소명서 및 소명자료를 비롯한 행적관련자료 등을 2010년11월 독립유공자 서훈취소 심사위원회에 회부하여 심의한 결과 B 선생의 공적에 중대한 흠결이 있는 것을 확인하여 상훈 업무를 주관하는 행정안전부에 서훈취소를 요청하였습니다.이에 2011년 4월 5일 국무회의의 서훈취소 의결을 거쳐 4월 6일 B 선생의 독립유공자 서훈이 취소 결정되었음을 알려드립니다.4. 이는 B 선생이 일제시기 독립운동을 했던 공도 인정되지만, ‘친일 잡지 발간 및 기고 등의 친일행적으로 인해 종합적으로 볼 때 서훈을 취소하는 것이 마땅하다는 판단에 따른 것임을 널리 양해해 주시기 바랍니다.5. 이러한 결정이 귀하와 친지들에게 커다란 충격과 상심이 되실 것으로 사료되오나, 독립유공자 선정의 전체적 대의라는 관점에서 깊은 이해있으시기 바랍니다.6. 아울러 기존에 전수된 건국훈장 애족장 및 훈장증의 반환을 요청하오며, 우리 쳐 직원이 귀댁을 방문할 예정이오니 방문 가능한 일시를 알려주시면 감사하겠습니다.국가보훈처장시행 공훈심사과-1161 (2011.4.19.)

2. Summary of the plaintiff's assertion

The Defendant sent the instant document to the Plaintiff on April 19, 201, and rendered a decision to revoke a decoration to the persons of distinguished services to the national independence on April 19, 201. The decision to revoke such decoration was without authority, and the deceased’s happiness does not constitute a ground for revocation of decoration. Accordingly, the Defendant sought revocation of the said decoration.

3. Determination

(a) Cancellation of decoration;

(1) The Awards and Decorations Act (amended on August 24, 201, and enforced from November 5, 201 of the same year; hereinafter the same shall apply) provides that the △△ Order shall be awarded to a person who has rendered outstanding meritorious services in the Republic of Korea (Article 2). Article 2 provides that when the head of central administrative agency (including the heads of subordinate agencies under direct control of the President and the Prime Minister) intends to recommend a decoration and make a recommendation, he/she shall undergo an official examination as prescribed by Presidential Decree (Article 5); Article 7 provides that the person who received the △△△ Order shall be determined by the President after deliberation by the State Council (Article 7).

Meanwhile, Article 8(1) of the Awards and Decorations Act provides that the revocation of a decoration and the recovery of goods and money awarded in relation to the decoration shall be subject to deliberation by the State Council, if the head of △△△ Administrative Stability intends to cancel the decoration and recover the decoration, etc. (Article 8(2)). The Minister of Public Administration and Security provided that when the above grounds arise, he/she shall submit a proposal on cancellation of decoration to the State Council to the State Council, and the head of the central administrative agency, who recommended the relevant decoration, may request the Minister of Public Administration and Security to submit a proposal on cancellation of decoration to the State Council (Article 8(3)).

According to the above provisions of the Awards and Decorations Act, when the President determines a person subject to a decoration after deliberation by the State Council, and intends to cancel a decoration, he/she shall undergo deliberation by the State Council, and the head of the administrative agency shall recommend a decoration or submit a proposal to cancel a decoration to the State Council.

On the other hand, when there is a defect in the establishment of the administrative disposition, the disposition agency which made the administrative disposition may cancel it ex officio, even if there is no separate legal basis for the cancellation (Supreme Court Decision 2001Du9653 Decided May 28, 2002).

Thus, the decoration is conducted under the authority and name of the President, and the revocation of decoration is revoked under the former President's authority and name, so the revocation of decoration is also made under the authority and name of the President.

(2) Delegation of administrative authority is recognized as a modification of legal attribution of authority, since an administrative agency transfers a specific authority to another administrative agency under law, and thus allows the delegation of authority. On the contrary, the internal delegation of administrative authority is, inasmuch as a law does not allow the delegation of authority, a subordinate agency or subordinate administrative agency to actually exercise its authority in order to promote the internal convenience of administrative affairs. Therefore, in the case of delegation of authority, the delegated agency may exercise its authority under its own name. However, in the case of internal delegation, the delegated agency may exercise its authority only in the name of the delegated agency, but the delegated agency cannot exercise its authority under its own name (see Supreme Court Decision 95Nu6475, Nov. 28, 199).

The cancellation of decoration is conducted in the authority and name of the President as seen earlier, and there is no provision that allows the delegation of the authority of the President with regard to the cancellation of decoration under the Government Organization Act or the Regulations on Delegation and Entrustment of Administrative Authority.

Therefore, an administrative agency, other than the President, cannot cancel a decoration in its authority and name, and even if there is an internal delegation concerning the cancellation of decoration, it can be done only in the name of the President.

(3) Article 2 of the Awards and Decorations Act provides that the Order of Merit shall be conferred to a person who has rendered outstanding meritorious services in the Republic of Korea (Article 2), and Article 7 of the State Council shall deliberate on the Order of △△ Order and determine by the President (Article 7). In principle, Article 29 provides that the Order of △△△ Order shall be served by the President in principle (Article 29). If a person who received the Order of △△ Order is deceased or is unable to receive it directly due to an accident, his/her bereaved family or agent may receive it on his/her behalf

On the other hand, the Awards and Decorations Act provides that △△△ Order shall only be worn by the person himself/herself, and shall be preserved by his/her bereaved family members, and shall not be worn by △△ Order (Article 34), and that when cancelling △△ Order, △△ Order and related goods and money shall be recovered (Article 8(1)).

According to the above provisions of the Awards and Decorations Act, a decoration is a specific person who has rendered outstanding meritorious services in the Republic of Korea, and even if the specific person dies, it is not changed that he/she is designated as a person subject to decoration. Thus, the revocation of decoration is an act of the other party. In addition, the revocation of decoration is to cancel the decoration that was a specific person as the person subject to decoration as above, and where the order already conferred is recovered from the specific person or the specific person dies, the revocation of decoration is also deemed to be an act of the other party.

Meanwhile, according to the above provisions of the Awards and Decorations Act, the recommendation of decoration is made through a public examination of the relevant candidate, and whether it is passed through such public examination depends on whether the relevant candidate can be recognized as a person of distinguished services to the national independence, and the State has the discretion to make a judgment on such recommendation. Thus, the recommendation of decoration cannot be made automatically on the ground that the relevant party applied for recommendation of decoration (the Constitutional Court Order 2004Hun-Ma859 delivered on June 30, 2005).

Therefore, decoration is a unilateral act that does not require the other party's request or consent, and such unilateral act is not required to apply or consent from the other party, and it does not require the other party's request or consent, and therefore, the revocation of decoration or decoration does not change to the other party's act as seen above.

(4) The cancellation of decoration is an act of the other party while it is conducted in the authority and name of the President as seen above. In order to establish an administrative act, the administrative intent of the administration is determined inside and externally (internal establishment), and must be externally indicated (external establishment), and the administrative act becomes effective upon notification to the other party.

According to the Constitution, the acts of the President under the laws of the Republic of Korea shall be conducted in writing, and this document shall be made by the Prime Minister and the member of the State Council concerned (Article 82).

According to the Administrative Procedures Act (amended on December 2, 2011 and enforced from March 15, 2012; hereinafter the same shall apply), when the △△ administrative agency takes a disposition, it shall be in writing except as otherwise expressly provided (Article 24), and where it is impossible to deliver △△△, etc., it shall be publicly announced in the Official Gazette, etc. (Article 14).

According to the Presidential Decree of the Office Management Regulations (amended on August 4, 2010 and enforced on the same day; hereinafter the same shall apply), the document is established with the approval of the signature of the relevant document (Article 8(1)); the document is effective when it reaches the recipient (Article 8(2)); the sender of the document is the head of the administrative agency (Article 13); the sender of the document is the head of the administrative agency (Article 13); and the document sent in the name of the head of the △△ administrative agency is stamped or signed by the head of the administrative agency (Article 21).

Thus, the cancellation of decoration shall be externally established by the division of the Prime Minister and the members of the State Council related to the document under the name of the President, signing or sealing by the President, and the cancellation of decoration shall take effect when such document reaches the other party determined to be subject to decoration. If the other party is already dead, the cancellation of decoration shall take effect only when service-related measures publicly announced in the Official Gazette, etc. are required.

B. Revocation of decoration for the Deceased

(1) According to the facts found earlier, on April 5, 201, the State Council passed a resolution on the revocation of decoration on the deceased, and on April 6, 201, the document (Evidence No. 10) was prepared, “The revocation of decoration based on an independent person’s friendship)” in relation to this document, and this document was made as an internal decision by the addressee, and the content of this document was approved by the State Council and decided on April 5, 201, and was signed by the Minister of the Interior and Safety and the Prime Minister on April 6, 201, and signed by the President on the above document.

Thus, the above document (No. 10) cannot be deemed as a document sent in the name of the head of the administrative agency because it has the nature of internal decision making, and it cannot be deemed as a document sent in the name of the head of the administrative agency. As a result, on April 6, 2011, the cancellation of decoration against the deceased cannot be deemed internally established, and it cannot be deemed that the cancellation of decoration against the deceased is externally constituted or that the cancellation of decoration was effective.

(2) According to the aforementioned facts, after the signature of the above President, the Minister of the Interior and Safety sent a document (No. 4) stating that the cancellation of a decoration (No. 19 persons of distinguished service) to the defendant on April 6, 201, and that the cancellation of a decoration against the deceased was confirmed by the State Council resolution and the Presidential re-determination. As such, the Minister of the Interior and Safety requested the measures to recover both the decoration and the related articles granted pursuant to Article 8(1) of the Awards and Decorations Act. Accordingly, on April 19, 2011, the defendant sent the instant document (No. 2-2 of the evidence No. 1) stating that "the Minister of the Interior and Safety notified the plaintiff of the cancellation of a decoration to the deceased on April 6, 2011," and the document of △△△ stated that the revocation of a decoration by the deceased was notified by the deceased on April 6, 2011, as well as the request for the return of the Order of distinguished Service.

Therefore, the Defendant’s act of making the instant document to the Plaintiff is deemed to have requested the return of the decoration awarded to the deceased in the previous report that was revoked on April 6, 201 through the resolution of the State Council, and the Defendant’s authority and name did not revoke the decoration for the deceased.

In addition, the defendant's act of the plaintiff in the document of this case was done in the name of the defendant in accordance with the documents of the head of the administrative safety division, which ordered the cancellation of decoration against the deceased to be decided by the State Council and by the President again. Thus, the defendant is not delegated the authority of the President or the Minister of Public Administration and Security to cancel decoration against the deceased or acting on behalf of the President.

(3) On the other hand, according to the above, documents under the name of the President whose contents are the cancellation of decoration shall be divided by the Prime Minister and the members of the State Council concerned, and the cancellation of decoration shall be externally established by signing or affixing official seals by the President, and the cancellation of decoration shall take effect upon arrival of these documents to the other party who was determined as the person subject to decoration. If the other party is already dead, the cancellation of decoration shall take effect only when service related to the documents publicly announced in the Official Gazette, etc.

However, as seen earlier, the instant document is a document in the name of the defendant, and the content thereof is notified that the decoration of the deceased was revoked on April 6, 201 through a resolution of the State Council. This is because the Prime Minister and the members of the State Council related to the document in the name of the President whose contents are the revocation of decoration are the Prime Minister and the members of the State Council, who are in charge of the cancellation of decoration, are neither signed nor stamped by the President nor stamped by the President. Thus, even if the instant document reaches the Plaintiff, the revocation of decoration

(c) Disposition;

(1) As seen earlier, the Defendant’s act of making the Plaintiff in the instant document was deemed to have been revoked on April 6, 201 through a resolution of the State Council, and thus, requested the return of the decorations conferred upon the deceased. The Defendant’s authority and name did not revoke the decoration for the deceased.

According to the Administrative Litigation Act, a suit seeking revocation is a suit seeking revocation or alteration of a "disposition", and such "disposition" is an exercise of public authority, refusal thereof, and other similar administrative actions as an enforcement of law on specific facts conducted by an administrative agency.

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly, and in a specific case, an administrative disposition is an enforcement of law with regard to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, based on the content and purport of the relevant Act and subordinate statutes, the subject, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see Supreme Court Decision 2008Du167, Nov. 18, 2010).

In light of the fact that a certain act of an administrative agency has the same external form as an administrative disposition that objectively gives disadvantages to the people without any legal basis, and if the other party to such act is recognized as an administrative disposition, it is necessary to seek remedies to eliminate disadvantages or apprehensions from the people derived therefrom, the issue of whether the other party's disadvantage or apprehension exists due to the act of the administrative agency should be determined by considering not only the degree of legal administration at that time, the level of people's awareness of rights, but also the attitude of the administrative agency related to the act (see Supreme Court Decision 93Nu12619, Oct. 12, 1993).

The purpose of the administrative litigation system is to relieve citizens from infringement of their rights or interests due to the illegal dispositions by administrative agencies, the non-exercise of public power, etc. and to properly resolve disputes over the relationship of rights or the application of law in public law. Thus, whether an administrative disposition is subject to appeal litigation ought to be determined in addition to the nature and effect of the act, by fully considering the purpose of the administrative litigation system or the function of protecting the rights and interests of citizens by the judicial power (see Supreme Court Decision 2010Du19720, Jun. 14, 2012).

(2) The Act on the Honorable Treatment of Independent Persons of Distinguished Service (amended on February 17, 2012 and enforced on July 1, 2012; hereinafter the same) that was enforced at the time the Defendant sent the instant document to the Plaintiff, stipulated that the person of distinguished service to △△ was the deceased and the patriot, and stipulated that the person who received the Order of Merit as a patriot, etc., who opposed to the seizure of national rights by the Japanese system of △△△△, or was satised for an independence movement (Article 4 subparag. 2).

The above law stipulates that the persons of distinguished services to the national independence and their bereaved families or families shall receive honorable treatment under the above law (Article 4). The above law provides that honorable treatment, veterans' benefits, education assistance, employment assistance, occupation assistance, medical support, loan, old age support, childcare support, etc. as such honorable treatment (Articles 10 through 26).

In addition, the Act on the Establishment and Management of National Cemeteries (amended on May 30, 201 and enforced on August 31, 201; hereinafter the same shall apply) which was enforced at the time the Defendant sent the instant document to the Plaintiff, stipulated that the decedent’s remains or body of a deceased person as a person of distinguished services to the national independence under the Honorable Treatment of Persons of Distinguished Services Act shall be buried in the National Cemetery (Article 5). According to the foregoing provision, if the decoration of the Order of Merit for the Deceased was revoked as indicated in the instant document, as indicated in the instant document, the decedent’s or the deceased’s bereaved family member did not constitute a person of distinguished services to the national independence is excluded from the subject of honorable treatment under the Act on the Honorable Treatment of Persons of Distinguished Services to the national independence, and thus, the decedent’s or the deceased’s bereaved family member may be excluded from the subject of be buried in the National Cemetery under the Act on the Establishment and Management of National Cemeteries, thereby infringing the legal interest of the deceased or the deceased’s bereaved family member.

(3) According to the facts of recognition as seen earlier, the document of this case, which the Defendant sent to the Plaintiff, stated that the revocation of decoration for the Deceased was caused by the deceased’s friendship.

However, when a decision is made by pro-Japanese act, the general personality right derived from Article 10 of the Constitution is restricted because the social evaluation of the relevant person is infringed, and even when the relevant person has already died, the social reputation and evaluation of the relevant person shall be protected from a serious distortion of his/her personal value, and the damage to his/her social reputation and evaluation of the relevant person shall be deemed to infringe his/her own personality right by forming his/her own personality character and maintaining his/her honor (see Constitutional Court Order 2007Hun-Ga23, Oct. 28, 2010).

Therefore, in order to spread the release of students detained in Gwangju student movement around November 1929 as a national public opinion, the deceased was arrested and detained for more than two years and six months, and received the Order of Merit of the National Foundation, and received the Order of Merit of the National Foundation from a public figure, and if such decoration is cancelled for the reasons of the deceased’s friendship as stated in the instant document, it can be said that the Plaintiff’s personality right as the deceased or his bereaved family member may be infringed.

(4) According to the facts found in the above, the document of this case that the defendant sent to the plaintiff was notified the plaintiff of the submission of explanatory materials on the ground that the documents of this case were found public defects of the deceased.

The contents include: (a) the Defendant referred the deceased’s records to the Review Committee; and (b) the Defendant requested revocation of decoration to the Ministry of Public Administration and Security; (c) the notification that the revocation of decoration against the deceased was decided on April 6, 201 through the resolution of the △△ Council; and (d) the Defendant requested the return of the Order of Merit and Order of Merit, which was transferred to the previous △△△△△△△△, and the details that the Defendant requested the return of the Order

According to the above contents of the instant document, the Defendant exercised certain authority in relation to the cancellation of decoration as an administrative agency, such as providing information on the submission of explanatory materials, submitting to the Review Committee, and requesting the cancellation of decoration, and requesting the return of decoration, etc. by notifying that the revocation of decoration against the deceased was decided, requesting the implementation of follow-up measures on the ground of the cancellation of decoration against the deceased. As such, on the basis of the legal confirmation that the revocation of decoration took effect, the Defendant requests the fulfillment of legal obligations stipulated under Article 8 of the Awards and Decorations Act.

Therefore, even though the Defendant’s act of making the Plaintiff in the instant document was not a revocation of decoration against the Deceased under his own authority and name, it can be deemed as an administrative action that affects the Plaintiff’s legal status or right and interest in accordance with the exercise of public authority.

(5) According to the facts of recognition as seen earlier, the cancellation of decoration against the deceased was notified to the Plaintiff only by the instant document in the name of the Defendant, and the instant document was indicated as “the notice of revocation of decoration as an independent person of merit.”

The plaintiff specified the defendant's disposition in the complaint submitted to the court of first instance on July 12, 201, and sought the cancellation of "the revocation of decoration to the persons of distinguished services to the national independence on April 19, 201," which stated the date of disposition as the date of enforcement of the instant document, as "the official decoration review and 1161 stated in the instant document," and "the details of the disposition are as follows: "the public failure of the person of distinguished services to independence," "the Director of the National Foundation of the Order of Merit and the request for the return of the Order of Merit". The plaintiff asserted in the above complaint that it is very unfair that the defendant issued the above disposition, but based on his pro-Japanese prior to the death of the deceased, the revocation of decoration" against the person of distinguished services to the national independence on April 19, 2011.

On the other hand, the defendant asserts that the cancellation of decoration against the deceased from the first instance court to the trial court is within the jurisdiction of the defendant, or that the defendant was delegated by the President or the Minister of Public Administration and Security or acting for him.

According to the above circumstances, in relation to the cancellation of decoration against the deceased, the defendant recognized the plaintiff as the counter-party to the act, and the plaintiff asserted the status of the defendant as the counter-party to the act, while recognizing the plaintiff as the counter-party to the act, and the plaintiff sought the revocation of the act that the defendant committed in the document of this case by the defendant as the disposition of the defendant, and the defendant sought the revocation of the disposition of this case, and it is summarized as "the revocation of decoration to the persons of distinguished services to the national independence against the deceased on April 19, 201" according to the title, enforcement date and core contents

Therefore, it is necessary to resolve the dispute over the relationship of rights or the application of law under public law, subject to the revocation lawsuit against the act that the defendant committed to the plaintiff as the document in this case.

(6) As to the state acts having high political character, the court itself may restrain the exercise of judicial review and exclude them from the scope of review. However, even if the concept of governing act is recognized, it should be carefully and carefully carefully recognized so that the excessive institution of judicial review does not neglect or waive the court’s responsibilities that should guarantee fundamental rights and realize the ideology of the rule of law (see Supreme Court Decision 2010Do5986, Dec. 16, 2010). However, as seen earlier, the decoration conferred orders, etc. to a person who has rendered outstanding meritorious services in the Republic of Korea, and it is difficult to view that the revocation of decoration or decoration is a highly political act so as to restrain the exercise of judicial review.

In addition, according to the Administrative Litigation Act, the court may revoke the administrative disposition that belongs to the discretion of the administrative agency when it exceeds the discretion or when it is abused (Article 27).

Therefore, the dispute over the cancellation of decoration can be resolved by the revocation litigation procedure.

(7) In full view of the above, the Defendant’s act of making the Plaintiff in the instant document is related to the revocation of decoration against the Deceased. The revocation of decoration against the Deceased may infringe on the Plaintiff’s legal interest or the Plaintiff’s general personal right derived from the Constitution. The Defendant’s act is an administrative action that affects the Plaintiff’s legal status or the right and interest in accordance with the exercise of public authority. The Defendant’s act is necessary to resolve disputes over the legal relationship or the application of the law in the public law with respect to the Plaintiff’s act as the subject of revocation litigation, and the dispute over the revocation of decoration is possible through the revocation litigation procedure. Accordingly, the Defendant’s act of making the Plaintiff in the instant document constitutes a disposition subject to revocation litigation.

(d) Cancellation of disposition.

(1) The Plaintiff, as the instant lawsuit, sought the revocation of “the revocation of decoration for the persons of distinguished services to the national independence against the deceased on April 19, 2011.” As seen earlier, the Plaintiff sought the revocation by deeming the Defendant’s act that the Defendant committed to the Plaintiff in the instant document as the disposition of the Defendant, and instead, based on the title, enforcement date, and key contents indicated in the instant document, the Defendant’s disposition is summarized as “the revocation of decoration for the persons of distinguished services to the national independence against the deceased on April 19, 2011.”

In Part, the Defendant’s act of making the Plaintiff in the instant document constitutes a disposition subject to revocation litigation as seen earlier, and this constitutes a request for the return of a decoration conferred on the deceased, prior to the revocation of the decision of April 6, 201 following the resolution of the State Council, and the Defendant’s authority and name did not revoke decoration for the deceased.

(2) According to the foregoing, with the signature of the President on April 6, 2011, the cancellation of decoration against the deceased can only be deemed to have been established internally, and it cannot be deemed that the cancellation of decoration against the deceased was externally established or that the cancellation of decoration was effective. The document of this case, which the Defendant sent to the Plaintiff, was sent to the Plaintiff by the Prime Minister and the relevant member of the State Council, in the name of the President, whose contents are the cancellation of decoration, and was neither signed nor stamped by the President nor stamped by the President, and thus, even if the document of this case reaches the Plaintiff, the cancellation of decoration against the deceased cannot be deemed to have an effect.

However, in the instant document, the deceased notified that his decoration was cancelled on April 6, 201 through a resolution of the State Council, and requested the deceased to return the order which was conferred to the deceased. As seen earlier, on the basis of the erroneous confirmation that the cancellation of decoration took effect on the deceased, the Defendant requested the performance of legal obligations stipulated under Article 8 of the Awards and Decorations Act on the basis of the erroneous confirmation that the cancellation of decoration took effect on the deceased. Thus, the Defendant’s act on the part of the instant document by the Plaintiff should be revoked as an unlawful disposition that affects the Plaintiff’s legal status or rights and interests or has control over the Plaintiff’s legal status.

(3) According to the facts found earlier, on August 15, 1990, the President issued a medal to the deceased, under the name of the President, at the time of the issuance of the Order of Merit to the deceased. The name of the President, the Prime Minister, and the Minister of Government Administration was stated in this medal, and the name of the President, the Prime Minister, and the Minister of Government Administration was stamped.

Thus, even if the plaintiff did not raise an objection to the notification given in the name of the Minister of Patriots and Veterans Affairs at the time of the issuance of the above order, the plaintiff's assertion that the cancellation of decoration against the deceased was illegal because it was not done by the President in the lawsuit of this case cannot be deemed as violating the good faith principle.

4. Conclusion

Therefore, the plaintiff's claim of this case is summaryed as "the defendant's decision to revoke a decoration to the deceased on April 19, 201," and is sought to revoke the plaintiff's claim of this case in consideration of the defendant's disposition. The plaintiff's claim of this case is reasonable in conclusion, and the judgment of the court of first instance is dismissed, and it is so decided as per Disposition.

presiding judge's accident management

Judge Maximum Order

Judges Lee In-bok

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A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.