[1] Method of determining whether a certain act of an administrative agency can be subject to appeal litigation

[2] In a case where Gap, who died of Gap who died of a firearms accident, requested a review of the classification of death to the Central Major Death Review Committee of the Ministry of National Defense, but the deceased was notified of the result that the deceased did not constitute a death-related requirement, the case holding that the above notification is nothing more than confirming the facts of the deceased's death, and it does not constitute an administrative disposition that directly affects the rights and obligations of Gap, who is the bereaved family member of the deceased, on the ground that it does not constitute an act of directly affecting the rights and obligations of the deceased

[1] Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 2 (1) 1 of the Administrative Litigation Act, Articles 54-2 and 54-3 of the Military Personnel Management Act

[1] Supreme Court en banc Decision 2008Du167 Decided November 18, 2010 (Gong2010Ha, 2279)

Plaintiff (Law Firm Don-hee, Attorneys Ha-hee et al., Counsel for the plaintiff-appellant)

Army Chief of Staff

Daejeon High Court Decision 2016Nu11320 decided April 6, 2017

The judgment below is reversed, and the plaintiff's appeal is dismissed. The litigation costs after the appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. The issue of whether a certain act of an administrative agency can be a subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with respect to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, with the mind that it is an act that directly affects the rights and obligations of the people. The decision should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, actual relation between the act and 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 (see Supreme Court en banc Decision 2008Du

2. A. The lower court acknowledged the following facts by citing the reasoning of the first instance judgment.

① On January 6, 1971, the Plaintiff’s deceased Nonparty (hereinafter “the deceased”) went into the Army, and died on the part of the deceased’s body while on June 13, 1971, the Plaintiff was under the care of the head of the steering division while on the boundary duty at around 22:00, and died.

② On August 21, 2009, the Committee for Finding the Truth of Military Literatures rendered a ruling of the truth that “the deceased shall be recognized as having died as an important cause of the euthanasia, such as alivism and cruel acts, and the neglect of management by the commander, etc. thereof, caused the death of the deceased.”

③ On September 29, 2014, the Plaintiff filed a request for reexamination on the classification of death with the Central Review Committee for Specialty Death (hereinafter “Review Committee”) of the Ministry of National Defense (hereinafter “Review Committee”) pursuant to Article 6 of the Directive on the Treatment of Persons of Distinguished Services (Ordinance No. 1691 of the Ministry of National Defense, Aug. 28, 2014; hereinafter “instant Directive”). On January 8, 2015, the Review Committee made a decision that the Deceased did not fall under the requirements for death on duty under the above Directive No. 1 [Attachment Table 1], and the Defendant notified the Plaintiff of the result of the said resolution on January 30, 2015 (hereinafter “instant notification”).

B. Based on the above facts, the lower court determined that the instant notification constituted a disposition that is subject to appeal, on the grounds that the Ministry of National Defense actually paid compensation for death even if the extinctive prescription has expired five years after the date of death, or that it is recognized as a person eligible for laying to rest in a national cemetery or a person eligible for special promotion without a separate examination in practice.

3. However, we cannot agree with the above judgment of the court below for the following reasons.

A. ① The purpose of the instant order is to provide for matters regarding the classification, confirmation, etc. of soldiers killed in action or in action (Article 1), death is divided into death, death on duty, and death in general (Article 3); the classification of death under Article 3 is conducted after deliberation by the General Major Death Review Committee by the Chief of Staff of each service branch; the Minister of National Defense, upon deliberation by the Central Major Death Review Committee (Article 6); and the Chief of Staff of each service branch, provides that the Ministry of Patriots and Veterans Affairs shall notify the Ministry of Patriots and Veterans, bereaved family members, etc. of the death if the death is confirmed or divided (Article 8); and the Military Personnel Management Act amended on June 22, 2015, classified the soldiers killed in action as soldiers killed in action, deceased in action, and deceased in general (Article 54-2); and the provision on the basis of the Special Purpose Review Committee (Article 54-3) was newly established.

(2) On the other hand, there is no provision that the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, the Act on Support for Persons Eligible for Veteran's Compensation, the Military Personnel Management Act, the Military Pension Act, and the Act on the Establishment and Management

B. Examining the foregoing facts and the content of the relevant statutes in light of the aforementioned legal principles, there is no legal basis to deem that the competent administrative agency determines whether the deceased falls under the requirements for persons who have rendered distinguished services to the State or persons eligible for veteran’s compensation, whether the deceased is eligible for compensation for death, or whether the deceased is eligible for laying to rest in a national cemetery, through its independent review and determination process in accordance with the relevant statutes, and that the judgment of the Review Committee, which is merely a reference material, ought to be bound by the classification of death. Therefore, the instant notification is merely merely merely confirming the facts regarding the deceased’s death, and it cannot be deemed as an act directly affecting the rights and obligations of the deceased’s bereaved family members, and thus, it does not constitute an administrative disposition subject to appeal litigation (see, e.g., Supreme Court Decisions 95Nu7505, Oct. 12, 1995; 2015Du2

The court below erred by misapprehending the legal principles on administrative disposition subject to appeal litigation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below is reversed, and this case is sufficient for the Supreme Court to directly render a judgment. The plaintiff's lawsuit of this case shall be dismissed. Since the judgment of the court of first instance is justifiable, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and the costs of the lawsuit after the lawsuit of this case are to be borne by

Justices Kim Yong-deok (Presiding Justice)