獨立有功者 敍勳取消의 法的 爭點

Abstract

This study is a commentary of the Supreme Court’s decision on the issue whether the revocation of decoration for the persons of distinguished service to independence corresponds to the President’s ruling act. In trials of lower courts, the views on this issue were not uniform but controversial. The Supreme Court decided that the revocation of decoration for the persons of distinguished service to independence does not correspond to the President’s ruling act. This study analyzed theories and precedents concerning the President’s ruling act, and further reviewed conferment and revocation of decorations for the persons of distinguished service to independence separately in terms of whether they correspond to the President’s ruling act. The Supreme Court’s decision did not definitely state whether the President’s revocation of decoration for the persons of distinguished service to independence corresponded to withdrawal or ex officio revocation, but judged that the revocation was made after overall review of their contribution to independence and the facts revealed later. It judged that the revocation of decoration for the persons of distinguished service to independence had both meanings of withdrawal and ex officio revocation. Meanwhile, it considered that, although the revocation of decoration had been notified by the Minister of National Veterinary Department, the President had finally decided such revocation and accordingly the President should be the defendant to the revocation litigation. Article 13 of the Administrative Litigation Act prescribes that the disposition agency shall be the defendant to a revocation litigation, but the Act does not stipulate notice of defendant. To require a party to an administrative litigation to put the correct defendant for an appeal may put a burden on the public and increase the inconvenience of the public. Accordingly, the Administrative Litigation Act is required to be amended to change the standing to be sue from the disposition agency to the state or local government. Finally, the Awards and Decorations Act shall also be amended, so that the issue such as revocation of decoration and recovery of orders, etc. may be disputed in administrative litigations, but the Minister of the Interior or the Minister of the National Veterinary Department, not the President, may be the defendant to the litigation. In this case, not only the confusion about standing to be sue may be resolved, but also the legal ground may be established for the question that the revocation of decoration for the persons of distinguished service to independence is not the President’s ruling act.