[1] The case where an administrative disposition can be revoked

[2] The case holding that even though the Minister of National Defense did not know that the person scheduled for promotion was prosecuted for the military court at the time of issuing an order for promotion, it is difficult to view that the need for public interest to cancel the order for promotion such as the adequacy of a person scheduled for promotion in the military service constitutes a case where the person scheduled for promotion was strong enough to justify disadvantage such as violation

[3] Whether the provision of Article 58(2) of the Enforcement Rule of the Military Personnel Management Act is invalid because it does not delegate a superior statute (negative)

[1] Article 1 of the Administrative Litigation Act / [2] Article 31 of the Military Personnel Management Act, Article 38 (1) of the Enforcement Decree of the Military Personnel Management Act / [3] Article 58 (2) of the Enforcement Rule of the Military Personnel Management Act

[1] Supreme Court Decision 90Nu7760 delivered on August 23, 1991 (Gong1991, 2442) Supreme Court Decision 91Nu9251 delivered on April 14, 1992 (Gong1992, 1620) Supreme Court Decision 92Nu17723 delivered on August 24, 1993 (Gong1993Ha, 2636), Supreme Court Decision 2003Du7606 delivered on July 22, 2004 (Gong2004Ha, 1530) Supreme Court Decision 2003Du12738 delivered on September 30, 2005)

Plaintiff (Attorney Park Jae-hwan, Counsel for the plaintiff-appellant)

The Minister of National Defense

Seoul High Court Decision 2005Nu1819 delivered on September 2, 2005

The part of the lower judgment regarding the disposition for invalidation of promotion is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

1. As to the disposition of invalidation of promotion

According to the evidence of employment, the court below found that the defendant selected the plaintiff as a person scheduled for promotion around 2002 and ordered the plaintiff to be promoted as of September 1, 2003. On the other hand, on June 18, 2003, the military prosecutor of the Type 3 military headquarters requested a summary order of KRW 2 million upon prosecution of the plaintiff to the general military court for facts constituting abuse of authority or other crime. However, on June 30, 2003, the court below found the above summary order case against the plaintiff to be subject to summary order of KRW 30,00,00 for the above summary order of 1 day prior to the trial and ordered the plaintiff to be promoted as of September 23, 2003, which was not subject to the above promotion order of KRW 5,00,000,000 to the court of first instance, and decided that the defendant cannot be deemed to have been prosecuted by the defendant on September 26, 2003 and thus, it constitutes grounds for cancellation of the above promotion order of Grade 13.

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

Where there is a defect in the administrative disposition, the disposition agency which has taken the administrative disposition can revoke it by itself even without any separate legal basis. However, when cancelling the administrative disposition, it may revoke it only when comparing the needs of the public interest that should be revoked, the right to obtain benefits and the infringement of trust and stability in legal life, etc. to be suffered by the parties due to the revocation, and only when it is strong to justify the disadvantage that the public interest needs to sustain (see, e.g., Supreme Court Decisions 90Nu760, Aug. 23, 1991; 2003Du12738, Sept. 30, 2005).

However, in full view of Article 31(1) and (2) of the Act and Article 38(1) of the Enforcement Decree of the Act, the person having authority for promotion has discretion to issue an order of promotion without eliminating the list of candidates for promotion even where a person subject to promotion was subject to disciplinary action twice on April 24, 2003, even if the person subject to promotion was unable to be promoted prior to the order of promotion. Although the defendant constitutes “where the plaintiff was indicted for a military court” under the main sentence of Article 38(1)1 of the Enforcement Decree, which is “where the plaintiff is unable to be promoted prior to the order of promotion,” the plaintiff did not delete the list of candidates and issued the instant order of promotion without removing the plaintiff from the list of candidates for promotion; the plaintiff had already been subject to disciplinary action on November 13, 2002 and Article 38(1)1 of the Enforcement Decree of the Act; the fact that the military court received a fine by the defendant does not constitute grounds for disability in the Act; the defendant’s order of promotion and the disciplinary committee’s strict provision of Article 60.

Nevertheless, the court below held that the disposition of invalidation of promotion of this case was legitimate on the grounds stated in its reasoning. The court below erred by misapprehending the legal principles on interpretation of Article 31(2) of the Act or cancellation of beneficial administrative disposition, and such illegality has affected the judgment.

2. As to the discharge disposition

In full view of the provisions of Articles 57 and 58(2) of the Enforcement Rule of the Act, the Chief of Staff may immediately refer a person who has been convicted by the military court and has not been removed from the military court to the examination committee for discharge in certain cases, including those who are not discharged from the military court. Article 37(1) of the Act provides that a person who is not unfit for active service as determined by the Presidential Decree may be discharged from active service after deliberation by the examination committee, but does not provide for the procedure for discharge from active service. Thus, the provision of Article 58(2) of the Enforcement Rule of the Act does not constitute a violation of superior law delegation. Accordingly, the argument in the grounds of appeal on this point cannot be accepted.

In addition, according to the records, the plaintiff submitted data to the committee for review of discharge and had an opportunity to defend himself/herself by directly attending the committee for review of discharge. Thus, the plaintiff's ground of appeal that the discharge disposition in this case was unlawful because it did not provide the plaintiff with an opportunity to vindicate.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the disposition for invalidation of promotion is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)