Administrative Complaint | Filing an Administrative Lawsuit to Obtain a Judgment Revoking the Dismissal of a Military Academy Cadet

From the stage of filing the administrative complaint, the Daeryun administrative law attorney asserted the unlawfulness of the dismissal disposition in this case from multiple angles.

1. Serious Procedural Unlawfulness in the Examination of Witnesses

Where there is no separate regulation, the discipline of military academy cadets is governed by the Army Disciplinary Regulations applied mutatis mutandis.

According to the Army Disciplinary Regulations, the disciplinary clerk must prepare a statement record for the investigation of a disciplinary case, and when examining a witness, the date and time of the examination, the examiner, and the method of examination must be clearly recorded.

However, in this case, the witness statement prepared during the course of the original disposition was obtained by hearing the statement over the telephone without actually summoning the witness, and the date of hearing the statement, the person who heard it, and the circumstances of the investigation were not recorded at all.

The administrative law attorney pointed out in the administrative complaint that this procedure could not be regarded as a lawful examination of a witness, and that the statement based on it was likewise unlawful evidence without evidentiary capacity.

2. Defect in the Prior Notice of the Disposition

The administrative law attorney invoked, as a key precedent, the Supreme Court judgment in Case No. 2022Du33323.

That judgment makes clear, in connection with a disciplinary case involving sexual misconduct, that the date and time, place, counterpart, type of conduct, and specific circumstances of each act must be specified to a degree that can distinguish them from other acts, and that this is an essential requirement for guaranteeing the right of defense of the person subject to discipline.

However, in this case, neither the notice of the convening of the cadet corps committee nor the notice of the dismissal disposition specified at all the date, time, or circumstances of each statement or act of the client.

The administrative law attorney regarded this as a serious defect in the prior notice of the disposition and emphasized in the administrative complaint that, on this ground alone, the dismissal disposition should be revoked.

3. Infringement of the Right of Defense and the Unlawfulness of Mistake of Fact

A person suspected of a disciplinary offense and a person subject to review has the right to present evidence and witnesses favorable to himself during the course of the investigation.

From the early stage of the investigation, the client clearly stated that there existed a witness who could impeach the victim's statement, and continuously requested the examination of that witness.

However, the disciplinary authority did not conduct even a single examination of the witness requested by the client.

The administrative law attorney structured this as an independent procedural defect that essentially infringed the client's right of defense and reflected it in the administrative complaint.

4. Denial of the Credibility of the Statements

The administrative law attorney, on the basis of the Supreme Court judgment in Case No. 2015Do11428, entirely denied the credibility of the statements of the victim and of the witness favorable to the victim.

The Supreme Court has held that, in order to make a determination based on a statement alone, the rationality of the content of the statement, its objective reasonableness, its consistency before and after, the character and interests of the person making the statement, and the possibility of inducement or intimidation arising from the possibility of an investigation being commenced must be comprehensively examined.

In this case, the administrative law attorney pointed out in the administrative complaint that the statements of the victim and the witness lacked consistency in content, had clear interests at stake, and conflicted with the objective materials in many respects, and therefore did not possess credibility sufficient to exclude reasonable doubt.

An administrative litigation complaint must include the following elements.

• Identification of the disposition
• Systematic classification of the grounds of illegality (procedure, substance, and abuse of discretion)
• Accurate citation of the relevant statutes and precedents
• Logical connection between the evidence and the arguments

An administrative litigation complaint must be a document that goes beyond merely pleading a sense of injustice and that presents a ‘structure of illegality’ on which the court can render a judgment.

Through the following one-stop legal services, Daeryun Law Firm provides one-stop assistance with military-related administrative litigation.

• Drafting of the administrative litigation complaint and conduct of the lawsuit by an administrative law attorney
• Analysis of internal military regulations and the disciplinary system by a military law attorney
• Comprehensive response to cases of discipline, expulsion, and revocation of qualifications

A military disciplinary case is an administrative disposition that has a significant effect on the client's future career path and life as a whole.

This is precisely why professional legal response is necessary from the administrative litigation complaint stage.

If you need legal assistance with a related case, please proceed with a 🔗legal consultation reservation.