[1] Whether a disposition to cancel the selection of an honorary discharge shall be made in writing pursuant to Article 24(1) of the Administrative Procedures Act (affirmative)

[2] Whether the revocation of the appointment of a person to be discharged from active service on the ground that the audit and inspection agency and the investigation agency are conducting misconduct inspections or investigations shall be subject to the disposition of the person to be discharged from active service (affirmative in principle)

[1] According to the provisions of Articles 15(1) and 24(1) of the Administrative Procedures Act, Article 6(3) of the Decree on the Appointment of Public Officials, Article 26(1) of the Regulations on the Handling of Personnel Records, Statistics, and Personnel Affairs, a disposition revoking the selection of an honorary discharge from active service can be deemed a disposition equivalent to appointment because the cancellation of a decision on the payment of an honorary discharge from active service allowance and the cancellation of a decision on the payment of an honorary discharge from active service allowance may also be deemed a disposition equivalent to appointment. Thus, it shall be in writing

[2] In light of the language, structure, and purport, etc. of Article 53-2(1), (4), and (6) of the Military Personnel Management Act, Articles 6 and 12 of the Regulations on the Payment of Honorary Discharge Allowances for Military Personnel, and Articles 96(2)3 and 96(1)1 and (2) of the Military Personnel Management Directive, it is reasonable to deem that the audit and inspection agency and investigation agency’s revocation of the appointment of the Honorary Discharge from Military Service on the ground that the person subject to Honorary Discharge from Military Service is a person subject to such disposition, barring special circumstances.

[1] Articles 15(1) and 24(1) of the Administrative Procedures Act, Article 6(3) of the Decree on the Appointment of Public Officials, Article 26(1) of the Regulations on the Handling of Public Officials’ Personnel Records, Statistics, and Personnel Affairs / [2] Articles 53-2(1), (4), and (6) of the Military Personnel Management Act, Articles 6 and 12 of the Regulations on the Payment of Honorary Retirement Allowances for Military Personnel

Plaintiff (Law Firm currently, Attorney Kim Jin-hwan, Counsel for plaintiff-appellant)

The Minister of National Defense

Seoul High Court Decision 2016Nu40179 decided August 18, 2016

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

The grounds of appeal are examined.

1. Whether Article 24 of the Administrative Procedures Act applies to a disposition to revoke the selection of a soldier from active service (ground of appeal No. 1)

A. When an administrative agency takes a disposition, it shall take effect in writing, except as otherwise expressly provided for in other Acts and subordinate statutes, and it shall take effect upon arrival of the relevant document to the person to receive the document: Provided, That where it is necessary to process the document promptly or the case is insignificant, it may take effect by oral or other means (Articles 15(1) and 24(1) of the Administrative Procedures Act). When appointing a public official, it shall issue an order so that the appointment chief or the notice of appointment can reach the person to be appointed by the date of appointment (Article 6(3) of the Decree on the Appointment of Public Officials). In addition, the head of the agency to which he/she belongs shall issue a written notice of a personnel order to a public official appointed or appointed as a probation officer (Article 26(1) of the Regulations on the Personnel Records, Statistics and Personnel Affairs of Public Officials).

According to the above relevant laws and regulations, the revocation of the selection of the honorary discharge shall be revoked and the decision on the payment of the honorary discharge allowance, which was scheduled against the party’s will, can also be deemed a disposition equivalent to appointment, and thus, it is reasonable to deem that the written decision should be made in accordance with Article 24(1) of the Administrative Procedures Act.

B. The lower court determined that the instant disposition cannot be made in the manner of issuing an order under Article 24(1) of the Administrative Procedures Act, based on the principle of Article 24(1) of the same Act, and Article 47-2 of the former Military Personnel Management Act (Amended by Act No. 13631, Dec. 29, 2015); and Articles 19, 20, and 21(1) of the former Military Service Rule (Amended by Presidential Decree No. 27263, Jun. 28, 2016). The lower court determined that the instant disposition was a disposition that significantly affects the Plaintiff’s status and property rights by recovering the status of a soldier against the Plaintiff’s will and cancelling the payment of the honorary discharge allowance scheduled to be paid.

C. Although the reasoning of the lower judgment is somewhat inappropriate, the lower judgment that the instant disposition ought to be in writing is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on whether Article 24(1) of the Administrative Procedures Act is applied, thereby adversely affecting the conclusion of the judgment.

2. Whether the revocation of the selection of honorary discharge can be made even after the expiration of the period of discharge (ground of appeal No. 2)

(a) Where a soldier who has served for at least 20 years is discharged from active service on his/her own before his/her retirement age, he/she may be paid an honorary discharge allowance within budgetary limits, and necessary matters concerning the scope of persons eligible for the payment of an honorary discharge allowance, the amount of payment, and the payment procedures therefor shall be prescribed by Presidential Decree (Article 53-2

Article 6 of the Regulations on the Payment of Honorary Discharge Allowances for Military Personnel upon delegation by the Minister of National Defense, upon receipt of an application from the Chief of Staff of each service branch, shall examine and select persons eligible for allowances for each rank, taking into account the status of the management of human resources for each rank, higher rank, long-term service, support for transfer to reserve service, and whether they are discharged from active service, and recommend them to the Minister of National Defense. The Minister of National Defense shall finally examine and determine the persons eligible for allowances by taking into account the balance between the budget and the respective service groups upon the recommendation. Furthermore, Article 12 of the above Regulations provides that the Minister of National Defense shall determine the criteria

Article 12 of the above Regulations provides that the Minister of National Defense shall decide the revocation of the appointment of the person eligible for the payment of the honorary discharge allowance in accordance with the delegation of Article 12 of the above Regulations. In particular, Article 96(2) provides that the person subject to the payment of the honorary discharge allowance shall be excluded from the appointment of the person eligible for the payment of the honorary discharge allowance if he/she falls under a wrongful investigation or investigation by an audit agency, such as the Board of Audit and Inspection, the prosecution, the police, etc., as of the date of the examination of the honorary discharge. Article 99(1)1 provides that the person eligible for the payment of the honorary discharge allowance shall be excluded from the appointment of the person eligible for the payment of the honorary discharge allowance if the person eligible for the payment of the honorary discharge allowance becomes a person eligible for the appointment of the honorary discharge allowance under Article 96(2)2. Article 96(2) provides that the Minister of National Defense shall determine the revocation of the appointment of the person eligible for the payment of the honorary discharge allowance in accordance with the Presidential Decree.

Meanwhile, Article 53-2(4) of the Military Personnel Management Act provides for “Recovery of an honorary discharge allowance.” The grounds for restitution that occurred after the discharge from active service include cases where a person was sentenced to imprisonment without prison labor or heavier punishment for reasons of the cancellation of the appointment of an honorary discharge from active service (Article 129 through 132), cases where a person was sentenced to a suspended sentence of imprisonment without prison labor or heavier punishment for committing a crime prescribed in Articles 129 through 132 of the Criminal Act during active service (Article 1-2) or cases where a person was sentenced to a fine of not less than three million won for committing a crime prescribed in Article 355 or 356 of the Criminal Act in connection with his/her duties during active service and the sentence of imprisonment without prison labor or heavier punishment is finalized (Article 1-3)

B. In full view of the language, structure, and purport of the aforementioned relevant statutes and directives, it is reasonable to deem that the auditor and investigation agency’s revocation of the appointment of the honorary discharge from active service on the ground that the person subject to the voluntary discharge from active service is still subject to the disposition, barring any special circumstance. The reasons are as follows.

(1) Article 3 of the Directive limits the application of the Directive to active service soldiers. Articles 99(1)1 and 96(2)3 provide that, even if a person who was determined as a person to be discharged from active service is simply subject to a wrongful investigation by the Board of Audit and Inspection or an investigation by the investigative agency from the date on which the person was determined to be discharged from active service to the date on which the person was determined to be “before they were discharged from active service,” such person may be deemed as having a possibility of hindering the honorary discharge from active service even if he/she was investigated into misconduct by the Board of Audit and Inspection or investigation by the investigative agency, and thus, once the decision on the payment of the honorary discharge allowance is revoked, the decision on the payment of the honorary discharge allowance may be cancelled with the discharge. In addition, where a person who was a person to be discharged from active service was subject to a temporary disposition after the cancellation of the decision on the payment of the honorary discharge allowance, he/she may be

In light of the language and structure of these provisions, the decision to revoke the selection of honorary discharge is intended for a person who maintains his status as a soldier on active duty.

(2) If the selection of the discharge from active service is revoked solely on the ground that a person who was determined as a person to be discharged from active service was simply investigated or investigated, the damage that a person would incur if he/she did not commit any misconduct or crime may be much greater than that of the public interest, i.e., efficient operation of the system for the selection of the discharge from active service. Here, if it is possible to decide to revoke the selection of the discharge from active service with respect to a soldier who was already discharged from active service, the right to receive the discharge from active service and the trust of a soldier who was discharged from active service prior to retirement age may be substantially infringed

Therefore, the principle of strict interpretation should apply to the interpretation of the relevant provision on the cancellation of the appointment of a person to be discharged from active service on the grounds of provisional reasons, such as “in the course of investigation or investigation.” Since the application for the re-payment of the allowance to be discharged from active service is limited to a person who has received a disposition of non-suspect after the date

(3) In order to operate limited honorary discharge allowance resources in an efficient and equitable manner, and to ensure the discharge of honorary discharge, the provision on the direction is not reasonable to stipulate the grounds for the cancellation of the selection of honorary discharge, even before the provisional grounds of the investigation or investigation during the investigation or investigation. However, the purport of the provision is premised on the fact that the discharge from active service is deferred at the stage prior to the occurrence of the effectiveness of the systematic discharge from active service and it is clearly clear that there is no misconduct or criminal facts ultimately. Therefore, Articles 99(1)1 and 96(2)3 of the above instruction cannot be applied to the time after the discharge from active service became effective. As long as the above express provisions are stipulated in Article 12 of the Regulations on the Payment of Honorary Discharge Allowance for Military Personnel, it is reasonable to view that the Minister of National Defense may not revoke the selection of honorary discharge from active service ex officio on the same grounds subsequent to the discharge from active service.

(4) In sum, comprehensively taking account of the language, structure, and purport of the foregoing Directive provisions, the revocation of the selection of the honorary discharge on the ground that there is a provisional reason that the auditor or investigation agency was merely investigated or investigated by the investigation agency, etc. shall be deemed to be limited to the case where the person subject to the voluntary discharge is discharged

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

(1) On March 6, 2015, the Defendant issued to the Plaintiff an order on March 31, 2015 to manage a person to be discharged from active service.

(2) On March 27, 2015, the Review Committee decided to revoke the selection of honorary discharge from active service and recommended it to the Defendant on the ground that the Plaintiff constitutes “a person who is under investigation or investigation by an audit agency, such as the Board of Audit and Inspection, a prosecutor, a police, etc., and an investigation agency, such as the Board of Audit and Inspection,” which is the reason for

(3) On March 30, 2015, the Defendant issued the instant disposition (2015 Ministry of National Defense Personnel Order ○○○○) that the selection of the honorary discharge from active service against the Plaintiff was revoked as of March 30, 2015. On March 31, 2015, the Army Chief of Staff issued a notice of disposition that the selection of the honorary discharge from active service was revoked on March 30, 2015. On March 30, 2015, the Army Chief of Staff issued a notice of disposition to the △△△△△△△△△△△△, the commander affiliated with the Plaintiff, and the Plaintiff received the notice of disposition that the selection of the honorary discharge was revoked

D. Based on such factual basis, the lower court determined that the instant disposition was unlawful on the ground that it became effective on April 3, 2015, after the Plaintiff’s order of discharge from active service became effective, since it reached the Plaintiff only on April 3, 2015, and became effective.

In light of the relevant provisions and legal principles as seen earlier, such determination by the lower court is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine regarding the requirements for revocation of the selection of honorary discharge.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, 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 Lee Dong-won (Presiding Justice)