(영문) 대전고등법원 2016.4.25. 선고 2015누11552 판결

A. On March 28, 1979, the Plaintiff was so-called the Army B, and was promoted to the Army B B on January 1, 2006. From November 30, 2006 to November 6, 2009, the Plaintiff served as the Contract Management Headquarters B, and served as the Korea Army Headquarters C from November 9, 2009.

B. On November 4, 2010, the Minister of National Defense issued an implementation plan for the 11-year honorary discharge of military service (hereinafter referred to as “the implementation plan of the instant honorary discharge”) to each Gun in accordance with Article 53-2 of the former Military Personnel Management Act (amended by Act No. 10703, May 24, 2011; hereinafter referred to as the “former Military Personnel Management Act”) and Article 53-2 of the former Rules on the Payment of Honorary Discharge of Military Service Allowances (amended by Presidential Decree No. 25607, Sept. 18, 2014; hereinafter referred to as the “former Rules on Honorary Discharge of Military Service”). The main contents are as follows.

3. Policy: A person who has been under investigation or investigation by an auditor institution, such as the Board of Audit and Inspection, and a prosecutor, police, etc., and an investigative agency, such as the Board of Audit and Inspection, and a person who has been under investigation or investigation by an investigative agency, including the Board of Audit and Inspection (excluding a person whose summary order has been requested and whose sentence has become invalidated), for whom the remaining period of retirement age honoraryly discharged by application is not less than one year but not more than ten years; or a person who has been under investigation or investigation by an investigative agency, including the Board of Audit and Inspection, as of the date of examination of discharge from active service:

1) The Deliberation Committee on the Selection of each Armed Forces shall determine the status of the operation of human resources for each rank, higher ranks, long-term service, whether they are supported by transfer to reserve service, whether they are discharged from active service, etc. (applicable to detailed criteria for deliberation by each Armed Forces within the scope of applicable laws

C. On the other hand, on November 19, 2010, the Board of Audit and Inspection notified the Minister of National Defense of the fact that he/she conducted an investigation into the plaintiff's responsibilities at the time of service of the Defense Acquisition Program Administration when discovering military supplies.

D. On December 3, 2010, the Plaintiff filed an application with the Defendant for the payment of honorary discharge and subsequent allowances, and the Defendant, around January 201, determined the Plaintiff as the person eligible for honorary discharge allowances (hereinafter “the instant disposition”).

E. On January 31, 201, the Plaintiff was discharged from active service to the Army President, and was paid KRW 21,697,470 as an honorary discharge allowance (hereinafter “instant honorary discharge allowance”).

F. However, on July 22, 2013, the Defendant notified and notified the Plaintiff of the restitution disposition of the instant honorary discharge allowance (hereinafter “instant disposition”) on the ground that the Plaintiff was not eligible for the payment of the honorary discharge allowance even though it was not paid.

【Fact-finding without a dispute over the ground for recognition】 Each entry in Gap evidence Nos. 4, 6, 11, 12, Eul evidence Nos. 1, 2, and 5 (including branch numbers, if any; hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Even if there is a defect in the payment of the honorary discharge allowance of this case, the need for the public interest to be revoked and recovered is not strong to justify disadvantages such as the right to obtain benefits and infringement of trust due to the cancellation and restitution.

The instant disposition is deemed to have been abused by the discretionary authority on the revocation of the beneficial administrative disposition, and thus, should be revoked (the Plaintiff’s ground for illegality of the disposition of this case, asserted that there is no relevant statute, absence of grounds for disposition (the Plaintiff’s assertion that the Plaintiff is not excluded from the recipients of the honorary discharge allowance, or that the investigation of the Plaintiff does not constitute a wrongful investigation by the Board of Audit and Inspection), and that there was no external validity of the implementation plan of the honorary discharge disposition of this case, but all other arguments other than the abuse of discretionary authority on the revocation of the beneficial administrative disposition

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

(i)the progress of inspection by the Board of Audit and Inspection

A) From August 23, 2010 to September 29, 2010, the Board of Audit and Inspection conducted an audit on the implementation status of military welfare programs for six institutions, including the Ministry of National Defense, the headquarters of each military branch, and the Defense Acquisition Program Administration.

B) During the above audit process, the Board of Audit and Inspection of Korea reported to the Commissioner of the Korea Food and Drug Administration and taken measures to be subject to appropriate sanctions according to the findings of the investigation when foreign food was discovered in the military food in accordance with the implementation plan for safety management of military food (hereinafter referred to as the "implementation plan for safety management of military food") on May 26, 2008 by the Defense Acquisition Program Administration, but confirmed the fact that the foreign food was discovered in the military food from May 26, 2008 to not notify the food safety.

C) On November 9, 2010, the Board of Audit and Inspection, on the fourth floor of the Defense Acquisition Program Administration, conducted a direct investigation of the Plaintiff, who has overall control over military meal service contracts and management affairs, etc. (the service period: from November 30, 2006 to November 6, 2009) on the 4th floor of the new Administrator of the Defense Acquisition Program Administration. In this case, the Board of Audit and Inspection asked the Plaintiff about the developments leading up to the establishment of the implementation plan for military meal service safety management, whether the Plaintiff was aware of the failure to take measures for the notification of occurrence of foreign goods, the Plaintiff’s opinion on the safety management of military meal goods, and whether to receive money, valuables, entertainment, etc., and stated to the effect that “the money, valuables, entertainment, etc. was not received”.

D) On November 19, 2010, the Board of Audit and Inspection notified the Minister of National Defense of the commencement of an investigation on the Plaintiff’s violation of the Plaintiff’s laws and regulations, etc., and on November 23, 2010, the Minister of National Defense notified the Defendant and the Plaintiff’s father-general (Korean Union Commander) of the commencement of the investigation. On November 23, 2010, the Director of the Inspection Office of the Korea-U.S. military headquarters notified the Plaintiff of the commencement of the investigation. However, the Board of Audit and Inspection did not perform a separate question-finding investigation on the Plaintiff.

E) On March 3, 2011, the Board of Audit and Inspection, by resolution of the Audit and Inspection Committee, made the Director of the Defense Acquisition Program Administration conduct a thorough work to ensure that it does not inform the Commissioner of the Korea Food and Drug Administration of the fact that foreign food was discovered in military food, and demands him/her to pay attention to the Section E, II, II, F, and administrative administrative secretary G of the D Team of equipment and goods contract for the relevant persons, and notified the Commissioner of the Defense Acquisition Program Administration of the audit results on the actual condition of the promotion of military welfare projects. However, the above audit results did not include measures such as the request for disposition against the plaintiff.

(f) In general, the Board of Audit and Inspection does not separately take measures against retired public officials when a public official at the time of audit and inspection, but notifies the relevant agencies of criminal cases or significant facts as reference materials.

G) The Board of Audit and Inspection has not notified the Defendant of reference materials relating to the findings of the investigation of the Plaintiff.

2) The details of the Plaintiff’s application for discharge from active service and the review process for the Plaintiff

A) In the Army before and after around 2011, a general-grade soldier, promoted to the Army, applied for an honorary discharge from active service, and a customary practice to receive an honorary discharge from active service was formed, except in extenuating circumstances.

B) On December 3, 2010, the five years have passed since the Plaintiff promoted the Plaintiff as a quasi-principal with good custom as above, the Plaintiff applied for the discharge from active service to the Defendant on December 3, 2010.

C) The Plaintiff drafted a written application for discharge from active service (Evidence A No. 12) for the purpose of the application for discharge from active service, and indicated ‘V' in the column of ‘whether or not the Plaintiff is conducting investigation or investigation in relation to misconduct at the Board of Audit and Inspection, the Military Prosecutors' Office, the military police and other investigative agencies.

D) The aforementioned written application for discharge from active service was submitted to the Defendant via the Plaintiff’s military unit personnel operation and confirmation of the chief of the staff and the signature and seal of the personnel staff

E) On January 11, 2011, the Army personnel team leader held a review committee on the payment of honorary discharge allowances to the Plaintiff. On January 11, 201, the review committee, including the Vice Chief of Staff, presented the results of confirming the misconduct of the Ministry of National Defense (Investigation Headquarters), the Army Headquarters (Inspection Office, the Legal Office), and the Army Investigation Team to the Chairperson and its members, but did not present data related to the investigation of the Plaintiff by the Board of Audit and Inspection.

[Ground of recognition] Evidence, Gap evidence Nos. 5, 7, Eul evidence Nos. 3 through 8, each fact inquiry result to the Chairman of the Supreme Court of the Party concerned, the results of the questioning of the plaintiff to the Chairman of the Supreme Court, and the purport of the whole pleadings

D. Determination

1) Comprehensively taking into account the facts of Finn in the above paragraphs (c) and (1) above, the persons subject to illegal investigations by the Board of Audit and Inspection at the time of examination of honorary discharge pursuant to the relevant Acts and subordinate statutes, such as the former Military Personnel Management Act and the former Rules on Honorary Discharge Allowance, and the implementation plan of the instant honorary discharge allowance, should be excluded from the appointment of the persons subject to the payment of honorary discharge allowance. However, the Defendant merely conducted a wrongful investigation by the Board of Audit and Inspection against the Plaintiff, and decided that the Plaintiff is eligible for the payment of honorary discharge allowance. Accordingly, there is room to view that the Defendant needs to secure the fairness and fairness in the selection of the persons subject to honorary discharge allowance by recovering the instant honorary discharge allowance pursuant to Article 53-2(4)

2) Meanwhile, in a case where there is a defect in an administrative act, even if there is no separate legal basis, the term "disposition" in which an administrative act was committed may be revoked on its own even if there is no separate legal basis. However, when cancelling a beneficial administrative disposition, it may be revoked only if it is strong enough to justify the disadvantage of the parties in need of the public interest after comparing and comparing the necessity of the public interest and the disadvantages incurred by the cancellation, such as the protection of trust and the infringement of the stability of legal life, etc.: Provided, That if the defect in the beneficial administrative disposition is due to the party's fact-finding or other fraudulent act, the party could have known that the benefit from the disposition was illegally acquired, and thus, it shall not be deemed as abuse of discretionary power even without considering not only the trust interest in the disposition but also the administrative agency's consideration (see, e.g., Supreme Court Decisions 2011Du1639, Feb. 15, 2013; 2013Du16111, Nov. 27, 2014).

3) In full view of the circumstances in paragraphs (a) through (d) below recognized in light of such legal principles and the facts related to pin as seen earlier, it is difficult to view in the foregoing paragraph (1) that the need for public interest in the instant disposition of pin to the extent sufficient to justify disadvantage, such as the Plaintiff’s right to purchase and infringement of trust, etc., arising from

A) The Plaintiff, upon filing an application for discharge from active service as of December 3, 2010, clarified the fact of the investigation by the Board of Audit and Inspection, and did not conceal the progress of the investigation by the Board of Audit and Inspection. On the other hand, the Defendant was notified by the Minister of National Defense of the investigation by the Board of Audit and Inspection, and the instant disposition was taken under the condition that he can recognize

B) The Board of Audit and Inspection did not include measures such as a request for disposition against the Plaintiff in the audit results. Even if a public official subject to the investigation of irregularities retires, it is general that the Board of Audit and Inspection notifies the relevant agencies of criminal cases or material facts as reference materials, but in light of the fact that there was no separate notification against the Plaintiff, it may be presumed that the act of misconduct regarding the Plaintiff’s military meal service contract and management affairs was extremely minor even if there was no or exists no separate notification against the Plaintiff

C) The purpose of the Military Personnel’s Honorary Discharge Allowance System is to promote the believers of the organization by paying honorary discharge allowances to the discharged soldiers prior to the retirement age, namely, loss of revenues that can be continuously received or payment of expenses incurred in obtaining a new occupation. The Plaintiff’s fact is difficult to deem that the recovery of honorary discharge allowances accords with the purport of the aforementioned honorary discharge allowance system, even though there was no criminal or serious illegality committed during his/her service after paying honorary discharge allowances between the Defendant and the Defendant without filing an application by means of abolition or fraud.

D) Furthermore, a disposition to recover an honorary discharge allowance after the retirement of a person to be discharged from active service is more unfavorable than revoking a disposition to select the person to be discharged from active service prior to the retirement age as it maintains the validity of the disposition to be discharged from active service before the retirement age and is deprived of the payment of an honorary discharge allowance by separating the monetary compensation of the person to be discharged from active service before the retirement age, and it is more unfavorable for the soldier to receive the honorary discharge allowance prior to the actual retirement age (According to the statement Eul evidence No. 8, according to Article 8(4) of the former Military Personnel Management Act, the rank retirement age of the captain of the Army pursuant to Article 8(4) of the former Military Personnel Management Act was reduced from 6 years to 5 years as stipulated by the above Act after 209, but the defendant, despite the above reduction, shall be deemed to have been discharged from active service in a situation where the person to be discharged from active service can serve more than one year on the basis of 6 years prior to the application to be discharged from active service, and there is no significant disadvantage for the Plaintiff’s rights to obtain and trust).

4) Meanwhile, the Defendant asserts to the effect that the decision of the recipient of the instant case is null and void as a result, and that there is no room for applying the principle of trust protection to the instant disposition that constitutes the revocation of the decision of the recipient of the instant case.

However, in order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of an important part of the relevant law and objectively apparent. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the relevant law should be examined from a teleological perspective, and at the same time, reasonable consideration should be given to the specificity of the specific case itself. In a case where an administrative agency has taken an administrative disposition by applying a certain provision to a certain legal relation or factual relationship, notwithstanding the absence of room for dispute over the interpretation of the law, the legal principles clearly stating that the relevant provision cannot be applied to a certain legal relation or factual relationship, and thus, if an administrative agency took the disposition by applying the above provision, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation of the law because the legal principles that the provisions of the law are not applicable to such legal relation or factual relations are not clearly revealed, the interpretation of the administrative disposition by mistake and thus, it cannot be said that the defect is evident (see, e.g., Supreme Court Decision 2011Du

In light of the above legal principles, this case is examined. 3.b. 4) as of the date of the examination of honorary discharge, the term "persons who are under investigation or investigation by an audit agency, such as the Board of Audit and Inspection, the prosecution, and the police, etc. as of the date of the examination of honorary discharge." However, according to the above, the plaintiff is only notified of the commencement of investigation by the Board of Audit and Inspection, and there is no separate investigation, etc. after the Board of Audit and Inspection, and the final audit results notice does not include measures such as the request for disposition against the plaintiff. Accordingly, there is a little room for interpretation as to whether the plaintiff can be seen as a "person under investigation or investigation at the Board of Audit and Inspection as of the date of the examination of honorary discharge," i.e., the "person under investigation or investigation at the Board of Audit and Inspection as of the date of the examination of honorary discharge," and the purport that the plaintiff does not fall under the above provisions has been argued in the first instance trial before the remand trial.

The defendant's argument is without merit.

5) The instant disposition should be revoked on the ground that it is unlawful as an abuse of discretionary power with regard to revocation of a beneficial administrative disposition.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit.