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

[2] The case holding that in a case where the Central Committee for Deliberation on Death by the Ministry of National Defense requested a review of the classification of death of a deceased deceased during military service, where the Minister of National Defense decided that the deceased did not meet the requirements for death on duty as specified in the order of treatment of the deceased, and notified the bereaved family member of the result of the resolution to the bereaved family member, the above notification is nothing more than confirming the facts about the death of the deceased, and it does not constitute an administrative disposition subject to appeal litigation on the ground that it does not constitute an act directly affecting the rights and obligations of Eul, a bereaved family member of the deceased

[1] Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 2 (1) 1 of the Administrative Litigation Act

[1] Supreme Court en banc Decision 2008Du167 Decided November 18, 2010 (Gong2010Ha, 2279), Supreme Court Decision 2009Du23617, 23624 Decided March 10, 201 (Gong2011Sang, 760), Supreme Court Decision 2010Du7321 Decided June 10, 201 (Gong201Ha, 1398)

Plaintiff (Law Firm Han-ho et al., Counsel for the plaintiff-appellant)

Army Chief of Staff

Daejeon High Court Decision 2016Nu10976 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. Whether a certain act of an administrative agency can be a subject of appeal cannot be determined abstractly and generally. An administrative disposition is a law enforcement with respect to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. In mind, the administrative disposition must be determined specifically and 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, 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 (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010).

2. (1) Review of the reasoning of the first instance judgment cited by the lower court reveals the following facts.

① On September 2, 1987, the deceased Non-Party (hereinafter referred to as “the deceased”) was found to have been dead on August 12, 1988 due to the string of 15 meters away from 155 meters away, while serving as the Army for the Army on September 2, 1987.

② 군의문사진상규명위원회는 2008. 1. 23. ‘망인은 소속대 전입 이후 보호·관심사병으로 지정되었으나 선임병들로부터 수시로 폭행을 당하거나 각종 얼차려와 갈굼, 무시를 당하여 적응장애 현상을 나타내다가 점차 우울 상태가 심화되었고, 적절한 치료관리를 받지 못한 결과 그 정신병적 증상이 발현되어 사망에 이르게 되었다고 인정한다’는 내용의 진상규명결정을 하면서 국방부장관에게 망인의 사망구분에 관하여 재심의할 것을 요청하였다.

③ On January 8, 2015, the Central Major Death Review Committee of the Ministry of National Defense decided that the deceased did not meet the requirements for death on duty in the table of standards for classification of major ideology in attached Table 1 attached hereto (the Ministry of National Defense Directive No. 1691, Aug. 28, 2014; hereinafter “instant Directive”). On January 30, 2015, the Defendant notified the Plaintiff of the result of the said Resolution (hereinafter “instant notification”).

(2) 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 pays 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 accept the judgment of the court below for the following reasons.

(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 classified into death in action, death on duty, and death in general (Article 3). Where the Minister of National Defense grants the classification of death pursuant to Article 3 following deliberation by the General Major Death Review Committee by the Chief of Staff of each service branch, and where the request for review of bereaved family members is made, the Minister of National Defense provides for the classification of death pursuant to Article 3 (Article 6) after deliberation by the Central Major Death Review Committee (Article 6). The Chief of Staff of each service branch provides for notification to the Ministry of Patriots and Veterans Affairs, bereaved family members, etc. (Article 8). And in the Military Personnel Management Act amended on June 22, 2015, the Military Personnel Management Act delegated matters necessary for the classification of soldiers killed in action or in action on duty, death on duty, and death in general (Article 54-2).

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 of National

(2) Examining the foregoing facts and the contents of the relevant statutes in light of the legal principles as seen earlier, there is no legal basis to deem that: (a) whether the deceased is a person who rendered distinguished services to the State, a person eligible for veteran’s compensation, a person eligible for compensation for death, or a person eligible for laying to rest in a national cemetery, etc. shall be determined by the competent administrative agency through its independent review and determination process in accordance with the relevant statutes; and (b) the examination committee, which is merely a reference material, must be bound by the classification of death. Therefore, the instant notification is merely merely a verifying fact about the deceased’s death; and (c) it cannot be deemed an act that directly affects the rights and obligations of the deceased’s bereaved family members, and thus, does not constitute an administrative disposition that is subject to an appeal litigation (see Supreme Court Decisions 95Nu7505, Oct. 12, 199; 20

(3) Therefore, the lower court erred by misapprehending the legal doctrine on administrative disposition subject to appeal, which affected the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining 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 just as this conclusion is consistent, the plaintiff's appeal is dismissed, and the litigation costs after the lawsuit of this case are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Cho Jae-chul (Presiding Justice)