(영문) 서울행정법원 2018.11.2.선고 2018구합3974 판결

A. On September 30, 1950, the Plaintiff requested the Defendant to recommend the Deceased as a person of distinguished services to the national independence who died on or around September 30, 1950 (hereinafter referred to as “the deceased”). On October 10, 2017, the Plaintiff requested the Defendant to recommend the Deceased as a person of distinguished services to the national independence 3.1 meter.

B. As a result of the deliberation by the Public Service Deliberation Committee on December 13, 2017, the Defendant, after participating in the March 13, 2017, decided to suspend the reward on the ground that the Plaintiff worked as a Korean National Railroad C, a subordinate organization of the Joseon General Department, and was wrong in the performance of the work, announced the Plaintiff on February 20, 2018 of the results of the public service examination as above (hereinafter referred to as the “instant guidance”).

[Reasons for Recognition] A without dispute, Gap evidence Nos. 12-14, Eul evidence Nos. 1-3, the purport of the whole pleadings, and the judgment as to this safety defense

A. The defendant's main defense

The Defendant’s public examination to recommend a person of distinguished services to the national independence to the Ministry of Public Administration and Security is only one of the series of procedures to determine whether to grant a reward to the person of distinguished services to the national independence by a decision within the administrative agency, and does not affect the Plaintiff’s rights or legal interests. Therefore, the instant guidance is merely a simple notification of facts that guide the results of public examination

B. Relevant legislation

It is as shown in the attached Form.

C. Determination

1) The term "administrative disposition", which is the object of an appeal litigation, means an act of an administrative agency under public law, which directly changes the legal status of the other party or other persons concerned, such as an act within an administrative authority, an order to create a right or an obligation under Acts and subordinate statutes, or giving rise to other legal effects with respect to a specific matter, and barring any special circumstance, an act, etc. which does not directly cause legal changes in the legal status of the other party or other persons concerned, such as actions, intermediation, solicitation, and de facto notification, within an administrative authority, cannot be subject to appeal litigation (see, e.g., Supreme Court Decision 98Du15863, Jun. 25, 199). Meanwhile, in order for an administrative agency to determine that an act of refusal against a citizen's application for active action constitutes an administrative disposition that becomes the subject of an appeal litigation, the application must be an exercise of public authority or other equivalent administrative action, and the refusal must cause any change in the applicant's legal relationship, and the citizen must have the right to request the enactment of laws or cooking (see, etc.

2) However, a decoration under Article 80 of the Constitution and the Awards and Decorations Act is the authority of the President, and the head of a central administrative agency, etc. has only the authority to recommend a decoration, and further, the granting of a decoration is basically a state action with a high level of political nature that the President acts as the head of the State. Therefore, the President’s decision to grant a decoration cannot be deemed as having a right to demand a decoration from an individual in accordance with the laws and regulations or cooking that allow him/her to receive a decoration at his/her own discretion, since he/she independently determines by the State Council, at his/her discretion. Furthermore, in the process of determining whether to grant a decoration, the President requires the recommendation of the Defendant, etc. in the process of determining whether to grant a decoration, and even if the recommendation by the Defendant, etc. requires an examination by the Public Review Committee, it cannot be deemed that the recommendation by the Defendant, etc.

Therefore, the instant guidance is merely a notification that does not affect the Plaintiff’s rights or legal interests, and it does not constitute an administrative disposition subject to appeal litigation. 3) Accordingly, the Defendant’s main defense is well-grounded (it does not constitute a deviation or abuse of discretionary authority to conduct the instant guidance in light of the following factors: (a) insofar as there is no objective evidence to acknowledge that the deceased’s family members have supported an independent movement even while serving in the railroad station, which is an agency under the direct control of the Department of Joseon General, for a long period of time, even if the deceased’s family members have supported it; (b) insofar as there is no objective evidence to acknowledge it, the Defendant’s provision of the instant guidance cannot be deemed to constitute deviation or abuse of discretionary authority

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.