[Plaintiff, Appellant] Plaintiff (Attorneys at law, Justice Law Firm, Attorney Do Hyun-taek and 5 others, in charge of the case)
[Defendant, Appellee] Republic of Korea
[Judgment Below] Seoul High Court Judgment 2019Nu63845, rendered October 22, 2020
[Order]
The Plaintiff's appeal with respect to the primary claim is dismissed. The part of the judgment below concerning the conjunctive claim is reversed, and this part of the case is remanded to the Seoul High Court.
[Reasoning] The grounds of appeal are examined.
1. As to the primary claim
With respect to the Plaintiff, who held the rank of major at the time of receiving the mandatory age-limit discharge order at issue in this case, and who sought, as a primary claim, confirmation that he holds the status of an active-duty lieutenant colonel, the court below did not accept the Plaintiff's primary claim for the reasons stated in its judgment.
Examining the reasoning of the judgment below in light of the relevant legal principles and the record, the court below found that the Plaintiff's request for confirmation that he holds the status of an active-duty lieutenant colonel, without having undergone the promotion review procedure under the Military Personnel Management Act (군인사법), is impermissible as it violates the principle of separation of powers, and that, moreover, the evidence submitted was insufficient to establish that the Plaintiff would necessarily have been promoted to lieutenant colonel had he been given a normal opportunity to perform his duties. There is no error in the court below's conclusion rejecting the Plaintiff's primary claim, such as a misapprehension of the legal principles concerning promotion procedures, that affected the judgment.
Meanwhile, in addition to the above reasoning, the court below also added, as a further ground for its determination, that the Plaintiff's conjunctive claim seeking confirmation of his active-duty status could not be accepted. However, since it cannot be established that the Plaintiff would necessarily have been promoted to lieutenant colonel, the propriety of the court below's determination on the primary claim would not change even if, as discussed below, the Plaintiff's conjunctive claim is accepted.
2. As to the conjunctive claim
A. In a case concerning the rank-based mandatory retirement age (계급정년) under Article 22(1)(2) of the former National Intelligence Service Employees Act (국가정보원직원법) (before its amendment by Act No. 7012 of December 30, 2003), the Supreme Court held as follows: "Where a public official of the National Intelligence Service subject to the rank-based mandatory retirement age was dismissed pursuant to a disciplinary discharge disposition, and thereafter returned to service after the discharge disposition was confirmed to be void or was revoked, the period of discharge shall, in principle, be included in the rank-based mandatory retirement age period even if the official was not, in practice, substantially guaranteed the opportunity to undergo a promotion review during the period in which he or she was, in fact, unable to perform official duties because of the discharge disposition. However, if the discharge disposition was based solely on a unilateral and material cause attributable to the appointing authority, without any statutory ground for disciplinary discharge, and there exist special circumstances such that the public official concerned was unable to be promoted to a higher rank because of the reduced period of duty performance caused by such discharge disposition, then including the discharge period in the rank-based mandatory retirement age period even in such a case would fundamentally undermine the purport of the constitutional guarantee of job security for public officials under Article 7(2) of the Constitution (헌법). Accordingly, it is reasonable to hold that, in such exceptional cases, the discharge period shall be excluded from the rank-based mandatory retirement age period." (Supreme Court Decision 2005Du7273, decided February 8, 2007).
Article 8(1) of the Military Personnel Management Act provides for three types of mandatory retirement systems: age-based mandatory retirement (연령정년), length-of-service-based mandatory retirement (근속정년), and rank-based mandatory retirement (계급정년). However, the "age-based mandatory retirement" not only sets different age limits depending on rank, but also sets those age limits significantly lower than those applicable to other public officials, such as police officers. Therefore, in addressing issues concerning "age-based mandatory retirement" under the Military Personnel Management Act, rank-related factors cannot but be taken into account. Accordingly, where a military service member has received an adverse status disposition from the appointing authority, such as a disciplinary dismissal or an order of discharge, but such disposition is confirmed to be unlawful by a final and conclusive judgment, and in the process of the member's reinstatement, the issue of whether the age-based mandatory retirement age has been reached arises; and where, even giving full consideration to the special circumstances of military life, which emphasizes strict discipline of superior-subordinate relationships and military order and involves collective communal living, it is recognized that the adverse status disposition was based solely on a unilateral and material cause attributable to the appointing authority without any legitimate statutory ground, and that, as a result of such adverse disposition, the member was substantially deprived of, or restricted in, the opportunity to perform the duties necessary for promotion from the relevant rank to a higher rank over a considerable period of time; and where permitting such a result would reach a degree that fundamentally undermines not only the legislative purpose of the rank-based age limits under the Military Personnel Management Act but also the purport of the constitutional guarantee of job security for public officials under Article 7(2) of the Constitution, such that the illegality thereof could by no means be cured merely through damages under the general principles of tort law—in such cases, the legal principle set forth in the above Supreme Court Decision 2005Du7273 may equally apply. In such a case, in light of the irreversible nature of the criterion of "age," it should be held that the age-based mandatory retirement age is extended by the period during which the member, in the manner described above, lost the substantial opportunity to perform duties necessary for a promotion review.
B. Considering the above legal principles together with the following circumstances found in the reasoning of the judgment below and the record, the Plaintiff, due to the adverse status disposition—the illegality of which was repeatedly and gravely confirmed as unconstitutional through the litigation concerning the dismissal disposition at issue in this case and other related dispositions—was placed in a state in which he was unable to normally perform his duties for a considerable period; as a result of this reduced period of duty performance, he substantially lost the opportunity to undergo a promotion review; and, as the inevitable consequence thereof, without having been provided the opportunity for normal duty performance contemplated for the relevant rank, he ultimately became unable to be promoted upon reaching the rank-based age limit. In light of the illegality of the appointing authority's repeated adverse dispositions as confirmed in the above litigation, as well as the circumstances and content thereof, there is substantial room to conclude that mechanically applying the rank-based age limit—which arrived under abnormal circumstances not attributable to the Plaintiff—to the Plaintiff would reach a degree that fundamentally undermines not only the legislative purpose of the rank-based age limits under the Military Personnel Management Act but also the purport of the constitutional guarantee of job security for public officials under Article 7(2) of the Constitution, such that the age-based mandatory retirement age for the rank of major should be regarded as extended by the corresponding period. Accordingly, notwithstanding the Plaintiff's formal processing for age-based mandatory discharge and retirement pursuant to Article 36(1) and the main text of Article 41(2) of the Military Personnel Management Act, it can be held that the Plaintiff remains in active-duty status for the period during which he lost the substantial opportunity to perform duties necessary for a promotion review.
1) On March 18, 2009, the Chief of Staff of the Army issued the dismissal disposition at issue in this case against the Plaintiff, on grounds including that the Plaintiff, intending not to comply with the directive to devise countermeasures against the circulation of subversive books within the military, gathered other participants and filed a constitutional complaint without going through the procedure of raising the matter through the chain of command, thereby disrupting military discipline. However, in the first administrative litigation concerning this case, a judgment became final and conclusive holding that the dismissal disposition should be revoked because some of the grounds for discipline were not established, and the disciplinary measure was excessive in light of the remaining grounds for discipline.
Thereafter, the Chief of Staff of the Army issued the suspension-from-duty disposition at issue in this case against the Plaintiff on the basis of the ground for discipline recognized as lawful in the first administrative litigation, and the Defendant issued the initial discharge order at issue in this case against the Plaintiff on the ground that the Plaintiff, having received the suspension-from-duty disposition, was unfit to continue serving on active duty. However, in the appellate (final) instance of the second administrative litigation concerning this case, the Supreme Court, sitting en banc, reversed the judgment of the court of second instance, which had reached a different conclusion, holding that none of the grounds underlying the above two dispositions was established; and in the retrial following remand, a judgment revoking both of the above dispositions was rendered and became final and conclusive on August 9, 2018.
Meanwhile, the reason the Supreme Court, in the final instance of the second administrative litigation concerning this case, found the suspension-from-duty disposition and the initial discharge order at issue in this case to be unlawful was that there was sufficient room to suspect that the directive to devise countermeasures against subversive books within the military excessively infringed upon academic freedom and freedom of thought, which lie at the core of intellectual freedom under the Constitution, and that disciplining the Plaintiff on the ground that he filed a constitutional complaint in order to obtain a judicial determination regarding a directive that was highly likely to be assessed as unlawful and unconstitutional constituted an infringement of the constitutional right to a trial.
Taking into account the above circumstances and content of the repeated adverse status dispositions, including the dismissal disposition at issue in this case, as revealed through the lengthy litigation, as well as the grounds on which they were found unlawful, there is substantial room to conclude that a significant portion of the period during which the Plaintiff lost his active-duty status, from March 18, 2009, the date of the dismissal disposition at issue in this case, to August 9, 2018, the date the judgment in the second administrative litigation concerning this case became final and conclusive, was attributable to a unilateral and material cause on the part of the Defendant, the appointing authority, and that, as a result, the Plaintiff substantially lost the opportunity to perform the duties necessary for a promotion review to lieutenant colonel.
2) Had it not been for the repeated adverse status dispositions, including the unlawful dismissal disposition at issue in this case, the Plaintiff, who became a major in 2006, could have undergone a promotion review starting in 2011, when the minimum five-year period of service required for promotion to lieutenant colonel had elapsed. However, the period during which the Plaintiff actually served as a major fell short of the minimum period of service, and as a result, the Plaintiff was not provided even a single opportunity to undergo a promotion review until 2015, when he reached the age limit for the rank of major.
3) As set forth above, the Plaintiff was unable to properly serve due to the unlawful adverse status dispositions, and, as an inevitable consequence, also failed to receive performance evaluations. As discussed in the reasoning rejecting the Plaintiff's primary claim, it cannot be said that there is proof of the probability that the Plaintiff would have been promoted to a higher rank had he been provided a normal opportunity to perform his duties. Nevertheless, there is substantial room to conclude that the Plaintiff substantially lost the opportunity to perform the duties necessary for a promotion review to lieutenant colonel due to the adverse dispositions, and thus mechanically applying to the Plaintiff the age limit that arrived under such abnormal circumstances would reach a degree that fundamentally undermines not only the legislative purpose of the rank-based age limits under the Military Personnel Management Act but also the purport of the constitutional guarantee of job security for public officials under Article 7(2) of the Constitution.
C. Nevertheless, the court below, for the reasons stated in its judgment, held that it was difficult to find that the initial discharge order at issue in this case was based solely on a unilateral and material cause attributable to the appointing authority without any statutory ground, and accordingly dismissed the Plaintiff's conjunctive claim seeking confirmation that he holds active-duty status. This determination by the court below is erroneous in that it misapprehended the legal principles concerning the possibility of extending the rank-based age limit under the Military Personnel Management Act and thereby failed to conduct the necessary examination, which affected the judgment.
3. Conclusion
Accordingly, the Plaintiff's appeal with respect to the primary claim is dismissed, and the part of the judgment below concerning the conjunctive claim is reversed and this part of the case is remanded to the court below for further hearing and determination. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Justice Min Yu-sook (Presiding Justice), Cho Jae-yeon, Lee Dong-won, Cheon Dae-yeop (Justice in Charge)