1. Revocation of a judgment of the first instance;

2. On January 18, 2012, the Minister of National Defense assigned the Plaintiff to discharge from military service.

Details of the disposition

This court's reasoning is identical to the corresponding part of the judgment of the court of first instance (No. 3 through No. 5). Thus, this court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

The reasoning for the judgment on the Defendant’s defense prior to the merits is as stated in the corresponding part of the judgment of the first instance court (Articles 8(2) and 420 of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

The key point of each of the instant disciplinary actions is that the Plaintiff’s filing of a constitutional complaint against the instant disciplinary action is a violation of a soldier’s duty to obey the instant disciplinary action, which was conducted after the instant constitutional complaint was filed, with respect to the violation of the duty to obey the instant disciplinary action.

In addition, the grounds for disciplinary action ① did not comply with the duty of advance recommendation in terms of procedural aspects, ② The grounds for disciplinary action emphasizes that the filing of constitutional complaints by many military advocates constitutes collective action outside the military service sector.

Therefore, first, after examining whether the soldier's exercise of the right to trial, such as constitutional complaint against instructions and orders of his superior violates the soldier's duty to obey, the soldier's right to trial is legitimate by the above disciplinary cause.

Article 27 (1) of the Constitution guarantees the right to request a trial including the right to request a constitutional adjudication as a fundamental right of the people, and Article 37 (2) of the Constitution provides that the freedom and rights of the people may be restricted by law only when it is necessary for national security, maintenance of order, or public welfare, but the restriction may not infringe on the essential contents

On the other hand, there is a direct existence of military personnel to guarantee the existence and security of the nation.