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

The Minister of National Defense

July 7, 2016

Seoul Administrative Court Decision 2015Guhap72535 decided March 11, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On March 30, 2015, the defendant confirmed on March 30, 2015 that the revocation of the selection of honorary discharge is invalid.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. cite the judgment of the first instance;

The reasoning for this Court’s explanation is as stated in the reasoning of the judgment of the first instance except for deletion or addition as stated in the following Paragraph (2). Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be deleted or added.

(a) Parts to be deleted;

The 19th, the 20th, the 3rd, the 17-18th, the 19th, the 20th, the by facsimile, respectively.

B. Additional parts

1) The following shall be added to the fifth second sentence of the first instance court:

In addition, the defendant asserts that "the defendant and the Army Chief of Staff notify the plaintiff of the official document (No. 2 of this case) in the form of electronic document in the form of the personnel records system, and the defendant and the Army Chief of Staff, pursuant to Article 6 of the Framework Act on Electronic Documents and Transactions, when the defendant and the Army Chief of Staff input the above official document into the information processing system, they shall be deemed to have received the above official document." However, according to Article 24 of the Administrative Procedure Act, the "parties consent" should be required to take an administrative disposition in electronic document, and there is no evidence to prove that the defendant consented to the administrative disposition in electronic document. Further, the official document under the name of the defendant and the Army Chief of Staff included in the evidence No. 2 of this case is not included in the plaintiff in the electronic document. Thus, the plaintiff cannot be deemed to have received the above official document (it can be deemed that the defendant and the Army Chief of Staff received the above official document from the △△△ commander, the receiver of the plaintiff). Therefore, the above defendant's assertion is correct.

Meanwhile, the Defendant asserts that “the proviso of Article 24 of the Administrative Procedures Act requires prompt processing” may make a disposition verbally or by other means. The Defendant issued the instant disposition to the Plaintiff, which requires deliberation and resolution by the committee for the revocation of the appointment of honorary discharge from active service, and that the instant disposition was forced to be promptly handled, and thus, the instant disposition is deemed to have been notified to the Plaintiff by means of electronic document, and thus, the instant disposition should be deemed lawful in accordance with the proviso of Article 24 of the Administrative Procedures Act. However, as seen earlier, it is difficult to deem that the instant disposition was sent to the Plaintiff in the form of electronic document, and even according to the testimony of the Non-Party witness of the first instance trial, it is not clear whether the instant disposition was notified to the Plaintiff. Therefore, the Defendant’s assertion that the instant disposition was not correct, on the premise that the Plaintiff was notified by verbal or other means.”

2) The following shall be added to the sixth eightth sentence of the first instance court:

[C] Article 3 subparag. 3 of the Regulations on the Restrictions on the Restrictions on the Dismissal of Non-Corruption Officials provides that "the appointing authority shall not allow the dismissal of a public official who has applied for the dismissal of a member of the Board of Audit and Inspection, the prosecutor's office, the police and other investigative agencies to be investigated or investigated in relation to misconduct, and the plaintiff at the time of the disposition in this case asserts that the validity of the dismissal from office does not take place by the plaintiff's intention in accordance with the above provision. However, the above provision on the restriction on the dismissal of a member of the Board of National Assembly provides that if a public official subject to the restriction on the dismissal of a member of the Office applied for the dismissal from office, the administrative agency shall not accept the written resignation and shall take the result of the criminal trial or disciplinary procedure, and it cannot be deemed that the requirements for the Restrictions on the Dismissal of a member of the Office

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-ju (Presiding Judge)

1) Although it is indicated to the upper part of A’s evidence No. 2 that it was transmitted by facsimile, it was sent to the Plaintiff’s agent’s office with Fax No. 1, “02586174,” and around August 13, 200. Therefore, it is deemed that the Plaintiff’s agent received A’s certificate No. 1 and No. 2 by facsimile from the Nonparty, who was the personnel management officer of the unit to which the Plaintiff belongs, and it is not clear whether the Nonparty received by facsimile the official document included in A’s evidence No. 2 by facsimile from Defendant or Army Chief of Staff.