2012Guhap2434 Revocation of disciplinary action

A person shall be appointed.

Air Force 8 Head of the 8 Aeronautical Flight Authority

June 28, 2013

August 16, 2013

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition on August 17, 2012 against the plaintiff was revoked on 15th day of Young Chang-gu.

1. Details of the disposition;

A. On January 10, 2012, the Plaintiff was a person who served as a maintenance soldier of the first cycle test team among the inspections of the parts parts maintenance unit of the 8th combat forces, and on January 10, 2012, at the general military court of the 8th combat forces of the Air Force.

01: Around 40, in order to drink alcohol at C head office in Seongbuk-gu, Sungnam-si, Sungnam-si, and to photograph D where Kameras was reported by using a mobile phone device installed in the Kamerasa in his/her own crehosis, D was placed in the following crehion against D's will, and D was sentenced to a fine of KRW 3 million due to criminal facts. On May 1, 2012, the dismissed judgment was rendered by the High Military Judicial Board, and the dismissed judgment was rendered by the Supreme Court on July 12, 2012.

B. On August 17, 2012, the Defendant issued a 15-day disposition on the ground that the Plaintiff violated the duty to maintain dignity due to the above criminal facts (hereinafter “instant disposition”).

C. On January 24, 2013, after the enforcement of the above disposition, the Plaintiff replaced the Plaintiff.

[Grounds for Recognition] Unsatisfy, entry in Gap evidence 1 to 3 (including the relevant branch numbers), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

We examine ex officio.

In order to recognize a legal interest in a lawsuit seeking cancellation of an administrative disposition which is an appeal litigation, there must be a legal interest as referred to in Article 12 of the Administrative Litigation Act. The legal interest refers to a case where there is a direct and specific interest protected by the law based on the relevant disposition, and where there is a direct or factual interest or an economic interest, it does not fall under this, and where the validity period of an administrative disposition is fixed and the validity or execution of the disposition is not suspended, the effect of the administrative disposition is invalidated upon the lapse of the period. Thus, there is no legal interest to seek confirmation of the invalidity of the disposition, unless there is any special circumstance to deem that any legal interest is infringed due to the remaining form and form of the disposition after the expiration of the period (see Supreme Court Decision 200Du7254 delivered on July 26,

As seen earlier, the fact that the execution of the instant disposition was terminated as to the instant case. However, even if the date of discharge scheduled by the Plaintiff was extended to 15 days from the date of discharge, the validity of the instant disposition was lost, and all obligations or limited rights imposed on the Plaintiff due to the instant disposition were extinguished, and there is no legal interest to seek revocation of the instant disposition against the Plaintiff, unless there is a special circumstance that the Plaintiff might be subject to a more aggravated punishment or unfavorable disposition than the instant disposition due to the power that the Plaintiff received the instant disposition.

In addition, the plaintiff asserts that there is a benefit of action to file a request for a retrial against a criminal conviction and a claim for damages against D for mental suffering due to a criminal judgment and a disciplinary action. However, the recovery of mental pain and reputation cannot be deemed a legal interest in the same administrative litigation as the lawsuit in this case. As the court in charge of civil damage claim can recognize illegality of the above disposition as a preliminary question, it is difficult to view that there is a benefit of action to seek a cancellation of the disposition in this case. Furthermore, for the purpose of falling under the grounds for retrial under Article 420 subparagraph 2 of the Criminal Procedure Act, the testimony based on the original judgment should be proved to be false by a final judgment (see Supreme Court Order 95Mo38, Jan. 16, 1997, etc.). Even if the disposition in this case was unlawful as alleged by the plaintiff, it cannot be deemed that the testimony of the witness in the above criminal judgment constitutes a case where it is sufficiently proved by a final judgment (the plaintiff already received the opportunity of self-defense from the third court in a criminal case and submitted evidence in both the criminal procedure).

Therefore, it cannot be said that there are circumstances to deem that the disposition of this case is in violation of the direct and specific interests protected by the law based on the relevant disposition due to the remaining external appearance of the Plaintiff. Therefore, there is no legal interest to seek cancellation of the disposition of this case

3. Conclusion

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

Judges of the presiding judge;

Judges, Superintendent of the National Assembly

Judges Kim Gin-ju