The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case principal details

A. On July 15, 2008, the Minister of National Defense was reported by the Armed Forces Commander on the information that the Korea Federation of the Korean University Students Association of the Armed Forces promoted 23 categories of “the campaign sending cultural books” in order to strengthen the anti-government consciousness of soldiers in the military.

On July 22, 2008, the Minister of National Defense issued to the Chief of Staff of each service branch and the commander of each service unit to take measures to prevent the entry of 23 books into the military unit (hereinafter “instant order”). The Chief of Staff of the Army issued a direction on July 24, 2008 to the subordinate commander of the military unit.

B. On October 22, 2008, six military advocates including the Plaintiff (hereinafter “Plaintiff”) filed a constitutional complaint (hereinafter “instant constitutional complaint”) seeking confirmation of unconstitutionality under the instant order and the former Military Personnel Management Act (amended by Act No. 10703, May 24, 2011; hereinafter “former Military Personnel Management Act”), Article 47-2 of the Military Service Rule (amended by Presidential Decree No. 21750, Sept. 29, 2009; hereinafter “Military Service Rule”) and Article 16-2 of the former Military Service Rule (amended by Presidential Decree No. 21750, Sept. 29, 2009; hereinafter “Military Service Rule”). This fact was widely reported to the press.

C. On March 18, 2009, the Plaintiff et al. was subject to disciplinary action on the grounds of disturbance of military discipline by filing a constitutional complaint on the instant order without going through the recommendation procedure through the chain of direction.

Of these, the plaintiff, who led to the filing of the constitutional complaint, was dismissed and enlisted in the recruit service.

Plaintiff

In a lawsuit to revoke a disciplinary action filed on April 15, 2009, the dismissal disposition against the plaintiff was revoked for the reason that it was an abuse of discretion (Seoul Administrative Court 2009Guhap14781), and it is also in the appellate court.