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

The Minister of National Defense

February 5, 2016

1. On March 30, 2015, the Defendant confirmed that the revocation of the selection of an honorary discharge from active service against the Plaintiff is invalid.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff served as the Second Lieutenant on December 19, 1981 and promoted to the Colonel, and served as the Chief of the Defense Communications Headquarters from January 2, 2014.

B. On January 21, 2015, the Plaintiff filed an application for the discharge of honor with the Defendant based on the implementation plan for the discharge of honor or the promotion plan for military personnel in 2015. On March 6, 2015, the Defendant selected and announced the Plaintiff as a person to be discharged from honor. On March 31, 2015, the Plaintiff issued an order for the discharge of honor (2015 Ministry of National Defense’s Personnel Order) to the Plaintiff on March 31, 2015.

C. On March 23, 2015, the Prosecutorial Office of the Ministry of National Defense launched an investigation into the Plaintiff on the suspicion of divulgence of official secrets, etc., and on March 27, 2015, the Army Headquarters held a review committee on the revocation of the selection of honorary discharge from active service against the Plaintiff. The committee for the revocation of the selection of honorary discharge from active service decided to revoke the selection of honorary discharge from active service to the Defendant on the ground that the Plaintiff constitutes “a person who is under a misconduct investigation or investigation by an audit agency, such as the Board of Audit and Inspection, a prosecutor, and an investigation agency

D. On March 30, 2015, the Defendant issued an order for invalidation of discharge [the 2015 Ministry of National Defense’s Personnel Order ○○○○, hereinafter “instant disposition”) with the purport that the selection of the honorary discharge from active service against the Plaintiff was revoked on March 30, 2015, and the Army Chief of Staff served the order on March 31, 2015 to the △△△△△△ Commander, the deputy commander of the Plaintiff. On the other hand, on April 3, 2015, the Plaintiff received an official document under the name of the Army Chief of Staff, stating that the selection of the honorary discharge from active service was revoked.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 6 (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the Defendant did not entirely notify the Plaintiff of the instant disposition in writing, the instant disposition is null and void on the ground that there was a serious procedural defect in violation of Article 24 of the Administrative Procedures Act. Moreover, since the effect of the order on the person to be discharged from active service against the Plaintiff arose in Yong-si (0:00) on March 31, 2015, the instant disposition is also null and void since it was issued after the subject of revocation already extinguished.

B. Determination

1) Whether procedural defects exist

A) Article 24(1) of the Administrative Procedures Act provides that “When an administrative agency issues a disposition, it shall be done in writing, except as otherwise expressly provided for in other Acts and subordinate statutes, and in the case of electronic documents, consent of the parties, etc. shall be required: Provided, That in cases of urgency or minor matters, it may be done orally or by other means, if it is necessary to ensure fairness, transparency, and reliability in administration and protect the rights and interests of the people. Therefore, a disposition taken by an administrative agency in violation of the aforementioned provision is null and void in principle as the defect is significant and apparent (see, e.g., Supreme Court Decisions 2011Do1109, Nov. 10, 201; 2012Du26067, May 16, 2014).

B) According to the statements in the evidence Nos. 2 and 3 and the testimony of the non-party witness, the Ministry of National Defense sent the instant disposition by facsimile to the non-party who was the personnel management officer of the military unit to which the plaintiff belongs on March 31, 2015. On March 31, 2015, the Army Headquarters sent to the non-party by facsimile a letter (Evidence No. 2) stating that the non-party would be notified of the instant disposition on the same day. On the same day, the non-party sent a letter (Evidence No. 3) by facsimile to the non-party. The non-party sent the phone to the plaintiff on March 31, 2015, and the plaintiff also sent the phone to the non-party on the same day, but it is not clear whether the instant disposition was notified to the plaintiff.

According to the above facts of recognition, the Defendant rendered the instant disposition that the selection of the honorary discharge from active service against the Plaintiff as of March 30, 2015 was revoked on or before March 30, 2015, but the Defendant cannot be deemed to have notified the Plaintiff of the instant disposition by document or oral or other means at the time of March 31, 2015 (the Plaintiff was served on April 3, 2015, and only the Plaintiff was revoked the selection of the honorary discharge from active service under the name of the Army Chief of Staff (Evidence 4, 6)).

C) As to this, the Defendant asserts that there is no procedural error in the procedure of the instant disposition to the △△△△△△ Headquarters, which is the unit to which the Plaintiff belongs, since Article 24(1) of the Administrative Procedures Act provides that the issuance of an order shall be made by document, oral or signal according to the chain of command, except as otherwise provided for in other Acts and subordinate statutes, etc.

In light of the fact that a soldier was discharged from active service and, in particular, a soldier was voluntarily discharged from active service before his retirement age for not less than 20 years (Article 53-2 of the Military Personnel Management Act), the instant disposition is against the Plaintiff’s will to restore his status and cancel the payment of the honorary discharge allowance to be made, and thus, the restriction on the Plaintiff’s right to receive the payment of the honorary discharge allowance has the characteristics of an infringing administrative disposition with significant effect on the Plaintiff. Although there was a defect in the appointment of the Plaintiff as the person to be discharged from active service, the disposition by document is required in accordance with the principle of Article 24(1) of the Administrative Procedures Act in the course of taking an infringing administrative disposition that significantly affects the Plaintiff’s status and property right. The ground for exception under the above provision is that the Defendant’s assertion in this part of the order is without merit in accordance with the general provisions of Article 47-2 of the Military Personnel Management Act, Article 19, Article 20(1) of the Military Service Rule, and Article 21(1).

D) In addition, the Defendant asserts that the instant disposition is not problematic in the procedure of the instant disposition, since it was served on the Plaintiff on March 31, 2015, under the name of the Army Chief of Staff, on the instant disposition, on April 3, 2015, and the defect was cured and the Plaintiff was notified that the revocation review committee for the selection of honorary discharge from active service should be held.

However, the recovery of defects is based on the premise of the existence of an administrative act and thus, it cannot be recognized that the recovery of invalid administrative act is not possible (see, e.g., Supreme Court en banc Decision 81Nu275, Feb. 28, 1984; Supreme Court Decision 96Nu5308, May 28, 197). As seen earlier, so long as the disposition in this case is null and void, the defect cannot be cured even if it is based on the above circumstances alleged by the defendant (No. 4 and No. 6) under the name of the Army Chief of Staff (No. 4, Mar. 31, 2015). Accordingly, the defendant's allegation in this part is invalid because it was notified by the Army Chief of Staff, who is not the subject of the disposition in this case, not the subject of the disposition in this case.)

E) Since the instant disposition was not notified to the Plaintiff by document or oral or other means in violation of Article 24(1) of the Administrative Procedures Act, it is unlawful and its defect is serious and obvious.

(ii) the time the order of discharge takes effect;

A) According to the main sentence of Article 6(1) of the Decree on the Appointment of Public Officials, a public official shall be deemed to be appointed on the date specified in the notice of appointment or appointment. This means that the effect of appointment takes place on the date specified in the notice of appointment or appointment. Thus, in the case of appointment during the term of appointment (see Article 2 subparag. 1 of the same Decree), the effect of dismissal takes place on the date specified in the notice of appointment or appointment, and he loses his status from the Si (0:00 on December 24, 1985) as a public official (see Supreme Court Decision 85Nu531, Dec. 24, 1985).

B) The fact that the date of discharge from active service was March 31, 2015 that the date of discharge from active service to the Plaintiff was seen earlier. Considering the fact that the voluntary retirement was retired from active service according to the her will, it is reasonable to view that the Plaintiff lost the status of a soldier from the time of military service on March 31, 2015 as stated in the above order of discharge from active service. Therefore, the instant disposition was unlawful as it was against the Plaintiff, and its defect is serious and obvious.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Kim Jong-Un (Presiding Judge)