2011Gu Joint 3939 Revocation of the disposition of refusal to hold a national cemetery

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The Director of the Daejeon National Cemetery;

March 21, 2012

March 28, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendant's rejection disposition against the plaintiff on May 2, 201 is revoked.

1. Details of the disposition;

A. On February 10, 1950, the Plaintiff’s father was killed in the Army, and on July 9, 1950, the Plaintiff entered the Army, and was on June 22, 1951, by suffering from the former (the latter Duna Trade) in the Korean War, and was on June 22, 1951.

B. On July 22, 1985, the deceased who was wounded under the foregoing circumstances was registered as a person of distinguished service to the third degree wounded and wounded in action, and died on April 9, 201.

C. Accordingly, on April 11, 201, the Plaintiff filed an application with the Defendant for laying the Deceased to rest in the Daejeon National Cemetery, a national cemetery.

D. The Defendant, at the district court on November 6, 1957, was sentenced to imprisonment for six months for a violation of the Customs Act, and subsequently requested the deliberation of the National Cemetery Deliberation Committee (hereinafter referred to as the “Deliberation Committee”) as to the deceased’s eligibility to rest in the National Cemetery in accordance with Article 5(3)5 of the Act on the Establishment and Operation of National Cemeteries and Article 13 of the Enforcement Decree of the National Cemetery Act (hereinafter referred to as the “National Cemetery Act”) to the Minister of Patriots and Veterans Affairs.

E. As a result of the review on April 29, 201, the Review Committee decided that the deceased’s laying to rest constitutes the grounds for exclusion from burial under Article 5(3)5 of the National Cemetery Act and Article 13 of the Enforcement Decree of the National Cemetery Act. On May 2, 2011, the Defendant notified the Plaintiff of the decision that the deceased would be ineligible for burial in the place where the Plaintiff would refuse his/her application according to the result of the review above (hereinafter “instant disposition”).

F. The Plaintiff appealed and filed an administrative appeal on May 9, 201, but the Central Administrative Appeals Commission rendered a decision to dismiss the request for adjudication by the original district on June 28, 2011.

[Ground of recognition] Facts without dispute, Gap 2, 4, 5, 6, 11, 14 evidence, Eul 1, 2 and 4 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 5(3)5 of the National Cemetery Act provides that “a person who damages the honor of a national cemetery” shall be construed as “a person who damages the honor of a national cemetery,” and thus, is unconstitutional.

2) Since the deliberation of the Deliberation Committee on the Deceased was conducted only by a written resolution, it is unlawful, and thereafter, in the column of the written reply submitted by the Defendant during the administrative appeals process, the Defendant made a false statement to the effect that the Defendant gave guidance on non-subject-matter decision on March 14, 201, and this part is also a serious illegal act.

3) On May 4, 201, the Plaintiff did not know that the deceased was punished for a violation of the Customs Act, and on May 4, 201, the Plaintiff considered that there was no pertinent material when he had conducted a criminal investigation and investigation conducted at the Sejong Cancer Police Station, and that the deceased was a decedent to be laid to rest.

4) Even if the deceased was subject to criminal punishment as asserted by the Defendant, the point of time is that time.

On November 6, 1957, before July 22, 1985, registered as a person of distinguished service to the State, the Deceased.

In light of the fact that the deceased was living as a person with disabilities before and after, it is illegal and unjust to determine the deceased as a person eligible for burial in the National Cemetery for this reason as a person without discretion.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Determination as to whether Article 5(3)5 of the National Cemetery Act is unconstitutional

Considering the legislative purpose of Article 1 of the National Cemetery Act and Article 5(3)1 through 4 of the National Cemetery Act, which provide for those who have made sacrifice and contribution for the State or society as well as those who may not be buried in a national cemetery, as well as the legislative purpose of Article 19(1), Article 20(1), and Article 22(2) of the National Cemetery Act, the term “equitable” is not only the fact that they made sacrifice and contribution for the State or society, but also the fact that such sacrifice and contribution should not be damaged due to crimes or misconduct against the State or society that were made before and after the burial. Thus, the Plaintiff’s assertion that “damage to the honor” should be sufficiently predicted if they committed an anti-state or social crime that might undermine the dignity and dignity of national cemeteries, and that they cannot be seen as being in violation of Article 25(1) of the National Cemetery Act with the consent of the Constitutional Court within the scope of 20% of the members who take charge of the deliberation of the National Cemetery Act.

2) Determination as to whether procedural errors exist in the disposition of this case

A) As to the assertion that the resolution of the Deliberative Committee was unlawful, there is no evidence to acknowledge that the Deliberative Committee made a written resolution against the deceased, and even if the decision was made in writing, Article 9 of the Enforcement Decree of the National Cemetery Act provides that “a meeting of the Deliberative Committee shall be held with the attendance of eight members and with the consent of at least 2/3 of the members present, and where the contents of the agenda are minor or there is no time to convene a meeting, a written resolution may be made in writing.” Thus, the instant disposition cannot be deemed unlawful solely on the basis of the fact that the written resolution was made by the Deliberative Committee on the Administrative Appeals of the National Cemetery No. 11 cited by the Plaintiff.

(B) .

B) Next, as to the assertion that there was an error of law in writing in the column of the written reply submitted by the Defendant to the Central Administrative Appeals Commission, this cannot be a ground for illegality of the instant disposition since the date of the instant disposition, and in light of the contents of the written reply, it seems that it was merely a net clerical error (the corresponding part of the written reply to other cases seems to be an error that occurred because it did not correct the corresponding part of the written reply to other cases).

3) Determination as to whether the deceased was subject to criminal punishment

According to the evidence Nos. 7-1, 2, 3, and 5 evidence Nos. 7-1, 2, 3, and 5, it can be sufficiently recognized that the deceased was sentenced to six months of imprisonment for a violation of the Customs Duties Act at the method of November 6, 1957 at the 00th cost. [According to the statement Nos. 1, 7-3, as alleged by the plaintiff, the crime and investigation experience inquiry by the MaMaMaMaMaMaMan Police Station are considered to be "no corresponding matter as a result of the inquiry about the deceased," but the above statement is limited to "the scope of inquiry" and "the criminal and investigation experience of the deceased," while considering that the above statement did not include "the scope of inquiry about the crime and investigation experience of the MaMan Police Station and the Man Police Station and the scope of inquiry about the response report on the investigation experience of the police station and the police station mentioned only the above evidence Nos. 7-1, 7, and 7).

4) Determination as to whether the instant disposition was illegal as it deviates or abused from discretion

Article 4 of the Operational Rules of the National Cemetery Draft Deliberation Committee, which is the directives of the Ministry of Patriots and Veterans Affairs, shall deliberate and decide on whether to impair the honor of national cemeteries with respect to persons who were sentenced to imprisonment without prison labor or a heavier punishment and for whom such punishment has become final and conclusive, and shall consider the grounds to consider in deliberation and resolution. In addition, in light of the legislative purpose of the National Cemetery Act as seen earlier, determination of persons who have criminal records is ineligible for laying to rest in national cemeteries cannot be said to be illegal by abusing their discretion, unless there are special circumstances to deem that there is a lack of justification and objectivity.

On the premise of this legal doctrine, Eul's statement 5: The deceased's 20,000 pieces of 10,000 and 1000 pieces of 7: The deceased's 10,000 pieces of 5,00,000 pieces of 7: 0,000,000 per annum 10,000,000, and the deceased's 10,000 pieces of 7,000,000,000,000,000: 5,000,0000,000,000,000,000: 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000.

In full view of the contents, means, and methods of the crime committed by the deceased, and the size of sealed imported goods, etc., the crime is not likely to be unlawful and social criticism because of the planned crime committed intentionally. Article 4(4)1 of the Regulations on the Deliberation Committee on the Persons Eligible for Burial in the National Cemetery stipulate the violation of the Customs Act as the examples of the crime that seriously undermines the public order and order which requires the deceased to be laid out from the eligibility for laying to rest in the National Cemetery. In addition, the legislative purpose of the National Cemetery Act as seen earlier, the burial of the National Cemetery focuses on not only the honorable treatment of persons who have rendered distinguished services to the State and their bereaved family members, but also the encouragement of patriotism of the people. Even if the deceased participated in the Korean War and had difficulty in living before and after his/her death, the above crime was committed 54 years prior to his/her registration, taking into account that the decedent’s laying to rest in the National Cemetery was detrimental to the honor of the deceased, and thus, the decedent’s burial in the National Cemetery was determined by the defendant.

It cannot be deemed that a disposition has deviates from or abused discretion due to a lack of legitimacy and objectivity. 3. Decision

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.

Judges in charge of fishing

Judges Jeon Jae-il

Judges Lee Jae-sung

Site of separate sheet

Related Acts and subordinate statutes

/ The Act on the Establishment and Operation of National Cemeteries

Article 1 (Purpose)

The purpose of this Act is to bury persons who have made sacrifice to the State or society after their death, and commemorate and honor their loyalty and meritorious deeds, by providing for matters regarding the establishment and operation of national cemeteries.

Article 5 (Persons Eligible for Burial in National Cemetery)

(1) The remains or body of any of the following persons shall be buried in a national cemetery: Provided, That in cases of a national cemetery, his/her bereaved family members shall rest:

In case where a decedent does not want to be buried, this provision shall not apply.

1. The Seoul National Cemetery or the Daejeon National Cemetery;

(g) Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, during combat or while performing public duties as a soldier, civilian military employee, or police officer;

A person discharged from active service, retired, exempted from military service, or retired from military service by suffering from wounds under Article 4(1)4, 6, or 12 ( wounded);

Sick and wounded in action or on duty pursuant to Article 74 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State.

A deceased person (including a person who is deemed a soldier or policeman wounded on duty and thus entitled to compensation)

(3) Notwithstanding paragraph (1), none of the following persons shall be laid to rest in a national cemetery:

1. A person who loses the nationality of the Republic of Korea;

2. A person under paragraph (1) 1 (c) (Article 4 (1) 3 (b) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State;

A person falling under subparagraph 5 (b) of the same paragraph shall be excluded from persons who died due to reasons other than death in action or on duty while in service.

one person

3. Persons who fall under Article 79 (1) 1 or 3 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State;

Article 2 subparagraph 2 of the Act on the Restoration of Honor to and Compensation to Persons Related to Democratization Movement in itself.

A decedent may be buried in a national cemetery, if he/she has rendered distinguished services.

4. A person who has been removed or discharged from office by impeachment or disciplinary action;

5. A person deemed by the Deliberative Committee on Persons Eligible for Burial under Article 10 to impair the honor of national cemeteries.

Article 10 (Establishment, etc. of Deliberative Committee on Burial Eligibilitys)

(1) The Deliberative Committee on Burial Eligibility (hereinafter referred to as the "Deliberative Committee") shall deliberate on the following matters in the Ministry of Patriots and Veterans Affairs:

each office shall have each office.

3. Whether the honor of national cemeteries under Article 5 (3) 5 would be undermined;

- Enforcement Decree of the Act on the Establishment and Operation of National Cemeteries

Article 9 (Meetings of Deliberative Committee and Executive Secretary)

(1) A meeting of the Deliberative Committee shall be held with the attendance of at least eight members, and with the concurrent vote of at least 2/3 of those present.

the meeting. However, if the contents of the agenda referred to the meeting are insignificant or there is no time to convene the meeting

may make a resolution in writing.

Article 13 (Deliberation by Deliberative Committee)

(1) Burial, etc. in a national cemetery pursuant to Article 12 (1) (excluding cases where such burial is moved from a national cemetery to any place other than a national cemetery).

Upon receipt of an application, the Minister of Patriots and Veterans Affairs or the Minister of National Defense shall make any of the following requests:

In any of the following cases, a deliberation by the Deliberation Committee shall be requested and an application for laying to rest, etc. shall be filed:

Notice shall be given to bereaved families or the heads of relevant agencies.

3. Sentence of imprisonment without prison labor or heavier punishment for one year or more and the Minister of National Defense shall consult with the Minister of Patriots and Veterans Affairs.

Where it is deemed necessary to judge whether a case falls under Article 5 (3) 5 of the Act.

/Operational Rules of the National Cemetery Draft Deliberation Committee (No. 956)

Article 4 (Matters for Deliberation and Resolution)

(1) Matters to be deliberated and resolved by the Deliberative Committee shall be as follows:

1. A deceased or wounded noble person under Article 5 (1) 1 (j) of the Act on the Establishment and Management of National Cemeteries (hereinafter referred to as the "Act");

Whether a person who died on duty, died on duty, or contributed to a national society as referred to in paragraph (1) is eligible for laying to rest.

2. A person who has been appointed as the Speaker of the National Assembly, the Chief Justice of the Supreme Court, the President of the Constitutional Court, the Director General, or the President of the National Assembly pursuant to Article 12 (2);

Matters pertaining to the determination of the area of seedlings of persons who have contributed to the State or a society (excluding funeral services);

3. Whether a person is eligible to rest in a de facto marital relationship under Article 5 (2) 2 of the Act;

4. Whether honorable damage under Article 5 (3) 5 of the Act is made in any of the following cases:

(a) A person sentenced to imprisonment without prison labor or heavier punishment and the punishment becomes final and conclusive;

(c) The Minister of Patriots and Veterans Affairs or the Minister of National Defense deems it necessary to deliberate by the Deliberative Committee.

In the case

5. Whether to maintain a grave permanently or to spatary tablet after the lapse of 60 years for laying to rest pursuant to Article 15 of the Act;

6. Other matters referred to the Committee by the Minister of Patriots and Veterans Affairs as deemed necessary.

(3) Whether honorable honor is damaged under Article 4 (1) 4 shall be comprehensively considered for the following normal reference reasons:

Deliberation and resolution shall be made.

1. Severity of negligence or whether any contingent act is performed;

2. The severity of damage suffered by the other party or whether the crime is committed;

3. Whether active efforts have been made to remedy damage, such as agreement and repayment with victims;

4. Whether the person has committed the crime before entering the hospital or before obtaining the eligibility for laying to rest;

(4) Notwithstanding the provisions of paragraph (3), a decedent shall be buried in any of the following cases, except in extenuating circumstances:

shall be excluded from the award.

1. Anti-social crimes, such as special assault, special robbery, special larceny, and fabrication of public and private documents, perjury, false accusation, and violation of the Attorney-at-Law Act; and

Where a crime significantly undermines public order, such as violation of the Customs Act, causes a serious damage;

2. A person who has an error in military register matters, such as cancellation of military register, unhonorary expulsion, missing, or persons whose reason for discharge from active service is not verified;

3. A repeated offender, and a habitual offender;