(영문) 대법원 2014.10.30.선고 2013두3122 판결

1. Article 11(3) of the Constitution provides that a medal such as a medal shall be effective only for the recipient of the medal. Furthermore, according to the former Awards and Decorations Act (amended by Act No. 10985, Aug. 4, 2011; hereinafter the same), the Republic of Korea’s medal and medal may be awarded to a person who has rendered distinguished services to the Republic of Korea (Article 2) and, if a person who has received the medal dies or is unable to receive it directly due to an accident, his/her bereaved family or agent may receive it on behalf of the person (Article 33); the medal and medal shall be used only for the person himself/herself; the bereaved family members shall not wear it (Article 34); and if a person who has not received the medal including his/her bereaved family members wear it after being preserved, his/her bereaved family members shall be punished by imprisonment for not more than six months or by a fine not exceeding five million won.

(1) Article 39 of the Constitution and the Awards and Decorations Act provides that a person who died differently from ordinary administrative acts may receive a decoration as a subject of honor, and thus, his/her honor may be awarded. However, even if his/her bereaved family members are bereaved family members, a third person cannot be the other party to the disposition of decoration, and even if his/her bereaved family members are bereaved family members, a third person cannot be the subject of the disposition of decoration and thus, cannot be the subject of the disposition of decoration, and thus, he/she may receive a decoration or make a proposal on behalf of the deceased, by granting honor to a person who has rendered distinguished services to the State. As such, the Awards and Decorations Act provides that a person who died may receive a decoration as a subject of honor, thereby enhancing pride in the nation and enhancing national value. This is also the same in cases where a person who received a decoration or made a request for the cancellation of the disposition of decoration on behalf of the deceased pursuant to Articles 33 and 34 of the former Awards and Decorations Act.

As such, the cancellation of decoration against the deceased is not against the bereaved family, so it cannot be deemed that it takes effect only by the notification to the bereaved family, and the decision shall not take effect according to the intention of the disposal authority.

It is reasonable to view that an administrative act becomes effective upon external display by considerable means.

2. A. According to the reasoning of the lower judgment and evidence duly admitted, the Defendant requested the Minister of Public Administration and Security to submit a proposal on the cancellation of decoration to the State Council, on the ground that pro-Japanese was confirmed by inserting letters that justify the provision of decoration to the deceased, etc. on April 1990. Accordingly, at the time, the Minister of Public Administration and Security submitted the proposal on the cancellation of decoration to the State Council to the State Council on April 5, 2011, and the President decided to revoke the decoration to the deceased on April 6, 201, and decided to revoke the decoration to the deceased on April 6, 201. After that, the Defendant, upon request of the Minister of Public Administration and Security on April 19, 201, notified the Plaintiff, who is his bereaved family member of the deceased, to whom the Order was conferred, of the revocation of decoration, and made a request for the cancellation of decoration to the National Council on April 19, 201.

B. We examine the purport and legal meaning of the instant notification in light of the legal principles as seen earlier.

1) First of all, so long as the cancellation of decoration against the deceased cannot be deemed as an administrative action against the plaintiff et al. who is the bereaved family member, the notification of this case cannot be deemed as a cancellation disposition against the deceased et al. (2) The notification of this case merely appears to have been made in itself that the cancellation of decoration against the deceased was not an affair under the jurisdiction of the defendant, and its contents also appears to have been ex post notification that the cancellation of decoration was decided on a specific date through the deliberation of the State Council rather than that the defendant made a cancellation disposition against the deceased as the disposition subject, as the disposition subject. In addition, the conferment of decoration under the present law is authorized by the President, and it is stipulated that the State Council shall be subject to deliberation by the State Council (Articles 80 and 89). The State Council is an advisory body under the Constitution (Article 88(1) and (3)), and the certificate of decoration against the plaintiff et al. kept by the President.

In full view of all these circumstances, the notice of this case, based on the overall purport of the statement, general recognition of the authority to grant and revoke decoration under the Constitution, etc., even though the person subject to the disposition of revocation of decoration of this case or the person under the title of the disposition does not specify it as the President, may be deemed to have externally indicated that the President revoked the decoration of this case against the deceased through the State Council. The method of indication seems to have been made before the method of posting it in the Official Gazette pursuant to Article 8-2 of the amended Awards and Decorations Act was implemented on August 4, 201, and thus constitutes a considerable method according to the intention of the disposition authority. Accordingly, the disposition of revocation of decoration of this case made by the President is objectively constituted and effective.

3) Meanwhile, the Defendant’s act of notifying the Plaintiff, who is in custody of an order, etc. under the Awards and Decorations Act, as a bereaved family member, merely notifies the Plaintiff that there was a decision of revocation of a decoration by the President on the premise of such request for return. Therefore, it cannot be deemed that the Defendant issued a disposition of revocation of decoration under its name.

4) Furthermore, even if the notification of the revocation of the decoration of this case was made by the defendant, not by the President, who is not the authority to take the disposition, but by the assistant agency, the disposition was made based on the President’s perception and intent, and as seen earlier, it is difficult to view that there is any defect in the subject or form of the notification as an external indication of the revocation of the decoration of this case. However, the plaintiff is not seeking the cancellation of the notification of the revocation of the decoration against the defendant by the lawsuit of this case, but also seeking the revocation of the revocation of the decoration of this case against the deceased, who is the content of the notification. Thus, the lawsuit of this case filed against the defendant, who is not an administrative agency (the President) which made the disposition, but merely an agency that notified the determination of the revocation of the decoration of this case, constitutes a case where the defendant was designated by the court at the request of the plaintiff, and thus, the court can permit the correction of the defendant (Article 14 of the Administrative Litigation Act), and if the plaintiff appears to have mistakenly designated the defendant, the court shall exercise its authority to rectify the lawsuit (see, 2006.

D. Nevertheless, the court below erred in understanding the meaning and legal character of the notification of this case, and thus did not issue the Presidential cancellation disposition of this case externally because it was not established, and determined the lawfulness of the disposition on the premise that the Defendant’s notification of this case constitutes the disposition subject to revocation litigation. In so doing, the court below erred by misapprehending the legal principles on the legal nature of the revocation disposition of decoration, the interpretation of relevant administrative acts, and the legal principles on the qualification for the defendant, thereby failing to exhaust all necessary deliberations.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.