[1] Whether Article 63 of the Enforcement Rule of the Military Personnel Management Act grants the right to discharge a person from active service at the time when the person so wishes, notwithstanding the resolution of the committee for examination of discharge from active service (negative)

[2] Whether a judgment on the suitability to active duty service under the Military Personnel Management Act is a discretionary act (affirmative), and the standard for determining whether such judgment is illegal

[3] The case holding that a disposition that judged a person who caused a sense of sexual shame of female officers as unfit for active duty service does not deviate from or abuse discretion

[1] Article 35 of the Military Personnel Management Act, Article 63 of the Enforcement Rule of the Military Personnel Management Act / [2] Article 37 (1) of the Military Personnel Management Act, Article 49 of the Enforcement Decree of the Military Personnel Management Act, Article 56 of the Enforcement Rule of the Military Personnel Management Act, Article 27 of the Administrative Litigation Act / [3] Article 37 (1) of the Military Personnel Management Act, Article 49 of the Enforcement Rule of the Military Personnel Management Act, Article

[1] Supreme Court Decision 96Nu1719 delivered on December 23, 1997 / [2] Supreme Court Decision 80Nu291 delivered on September 9, 1980 (Gong1980, 13237) Supreme Court Decision 97Nu2948 delivered on May 9, 197 (Gong1997Sang, 1757)

Plaintiff (Law Firm Lee Jink, Attorneys Han Sung-hee et al., Counsel for the plaintiff-appellant)

The Minister of National Defense

Seoul High Court Decision 2003Nu4159 delivered on December 5, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Ground of appeal No. 1

Article 37 (1) 1 through 3 of the Enforcement Decree of the Military Personnel Management Act (hereinafter referred to as the "Enforcement Decree") with regard to the date of discharge of a person who is not discharged from military service under Article 47 of the Enforcement Decree of the Military Personnel Management Act, a person who falls under Article 37 (1) 1 through 3 of the Act shall be discharged from military service within three months from the date on which the committee for examination on discharge from military service determines to discharge from military service, and a person who falls under Article 37 (1) 4 of the Act shall be discharged from military service within one year, respectively. In light of the provisions of Article 35 of the Act, "the person subject to investigation or examination may be discharged from military service pursuant to the provisions of Article 35 of the Act before the committee for examination on discharge from military service examines the committee for examination on discharge from military service (hereinafter referred to as the "Rules") shall give the person eligible for discharge from military service an opportunity to discharge from military service at the time desired by the committee for examination on discharge from military service, notwithstanding a resolution by the committee for examination on discharge from military service (see Supreme Court Decision 96Nu.

The court below held that the plaintiff submitted a written application for discharge on September 30, 2002 to the plaintiff on February 14, 2002, and that on March 16, 2002, the committee for the examination of discharge from active service, the plaintiff decided to discharge from active service on March 16, 2002, the defendant issued a disposition of this case ordering the plaintiff to discharge from active service on March 31, 2002, and that the disposition of this case does not violate the provisions of Article 63 of the Enforcement Rule. There is no error of law by misapprehending the legal principles as to the interpretation of Article 63 of the Rules, as alleged in the ground of appeal No. 1.

2. The second ground for appeal

The court below held that the disposition in this case does not go against the principle of trust, since the plaintiff was not selected as a person subject to vocational guidance education prior to discharge and the order of discharge by the plaintiff was not issued, and thus it cannot be viewed that the defendant would discharge the plaintiff to the plaintiff on the date of discharge desired to the plaintiff. In light of the records, the judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to the principle of trust, contrary to the allegations in

3. Ground of appeal No. 3

In determining whether the military personnel is unfit for active duty service under the Military Personnel Management Act, the judgment of the military authorities shall be respected, in principle, at the discretion of the Chief of Staff or relevant agencies such as the committee for examination on discharge from active service, unless there is a clear violation of laws and regulations in light of military characteristics (see, e.g., Supreme Court Decisions 80Nu291, Sept. 9, 1980; 97Nu2948, May 9, 197).

After finding the facts as stated in its holding, the court below determined that the act of the plaintiff, who is the commander of the distribution transport vehicle, caused a sense of sexual humiliation of female officers using his position by sexual harassment against the non-party, who is an administrative officer belonging to the same agency, and attempting to make sexual contact, etc., is justifiable to have decided upon the discharge examination committee to order the plaintiff to discharge from active service, on the ground that the act of causing a sense of sexual humiliation of female officers under the use of his position constitutes an active duty officer under Article 37 (1) 2 of the Military Personnel Management Act, Article 49 (1) 2 of the Enforcement Decree, Article 56 (2) 1 of the Enforcement Rule, and Article 56 (2) 1 of the Enforcement Rule of the Military Personnel Management Act. In light of the above legal principles and the records, the judgment of the court below is all acceptable, and there is no

4. Ground of appeal No. 4

The decision of the court below which rejected the plaintiff's assertion that it is customary to allow the person to be discharged from active service upon request is justified even if an investigation is conducted by the Committee on Investigation of the Joint Persons with Active Service, and there is no violation of the rules of evidence as alleged in the ground of appeal No. 4.

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)