Open Decision Ledger · Military criminal & justice law
Army reporting duty as the start of the disciplinary limitation period
Supreme Court, Feb. 17, 2022, 2021Du51256 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 징계처분취소
Official text on the National Law Information Center
Question
Where an Army warrant officer was finally sentenced by a civilian court, must he report that fact to the person holding disciplinary power within a reasonable period without delay under the reporting clause of Army Regulation 110, and when does the disciplinary limitation period begin if he does not report within that period?
Holding
Yes, he must report. The Supreme Court held that an Army warrant officer bound to observe Army Regulations must report a final criminal punishment imposed by a civilian court to the person holding disciplinary power within a reasonable period without delay, and that if he does not report within that period, the disciplinary reason arises the moment that period elapses and the limitation period runs from that moment. It reversed the judgment below, which had taken the start of the limitation period to be the date on which the plaintiff actually made the report.
Points at issue, verbatim
육군 준사관이 민간법원에서 형사처벌이 확정된 경우, 육군규정 110 ‘장교인사관리규정’ 중 보고조항에 따라 지체 없이 상당한 기간 내에 징계권자에게 그 사실을 보고해야 하는지 여부(적극) 및 위 기간 내 보고하지 않은 경우, 징계시효가 기산되는 시점
Unofficial English translation
Whether, where criminal punishment of an Army warrant officer has become final in a civilian court, he must report that fact to the disciplinary authority without delay within a reasonable period pursuant to the reporting provision of Army Regulation 110 'Officer Personnel Management Regulation' (affirmative) and, where no report is made within the said period, the point in time at which the statute of limitations for disciplinary action begins to run
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
위 기간 내에 보고하지 아니하면 그 기간이 경과함으로써 곧바로 징계사유가 발생하고, 그때부터 징계시효가 기산된다고 보아야 한다
Unofficial English translation
If no report is made within the said period, a ground for disciplinary action arises immediately upon the elapse of that period, and the statute of limitations for disciplinary action must be regarded as beginning to run from that time
Factors
- 징계시효의 기산점(=징계사유가 발생한 때)
- 지체 없이 상당한 기간 내에 징계권자에게 그 사실을 보고해야 하는지 여부(적극)
- 위 기간 내 보고하지 않은 경우, 징계시효가 기산되는 시점
Unofficial English translation
• The starting point of the statute of limitations for disciplinary action (= the time when the ground for disciplinary action arose)
• Whether he must report that fact to the disciplinary authority without delay within a reasonable period (affirmative)
• Where no report is made within the said period, the point in time at which the statute of limitations for disciplinary action begins to run
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2021. 12. 16. 선고 2021두48083 판결(공2022상, 219)
Unofficial English translation
Supreme Court Decision 2021Du48083 decided December 16, 2021 (Gong 2022 Sang, 219)
Decisions referred to
[1][2] 대법원 2021. 12. 16. 선고 2021두48083 판결(공2022상, 219), 대법원 2022. 1. 27. 선고 2021두51263 판결 / [1] 대법원 2007. 7. 12. 선고 2006도1390 판결(공2007하, 1309), 대법원 2014. 10. 30. 선고 2012두25552 판결, 대법원 2019. 10. 18. 선고 2019두40338 판결(공2019하, 2163)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How long is the reasonable period within which a warrant officer must report a final criminal punishment to the person holding disciplinary power?
The remand judgment's finding on the length of the reasonable reporting period will show how that period is measured in practice. A change to Article 56(i) or Article 60-3(1) of the Armed Forces Act, or to the rules for warrant officers under Army Regulation 111, would require this entry to be read again.
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A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 9 September 2021 (2020Nu59392), held that the plaintiff, as a warrant officer, was not a person bound by the self-reporting clause in the Army Chief of Staff's annual promotion directive, so that breach of that clause was not a disciplinary reason. Breach of the reporting clause in Army Regulation 110 was a disciplinary reason, it held, but since the limitation period did not begin until the plaintiff reported the final summary order to the person holding disciplinary power, the two-year period had not run, and the reprimand of 30 December 2019 was lawful.
Supreme Court standard: The Supreme Court held that the disciplinary limitation period in Article 60-3(1) of the former Armed Forces Act runs in principle from the time the disciplinary reason arises, and not from the time the person holding disciplinary power learns of it. An Army warrant officer has a duty to observe Army Regulations, so a warrant officer finally punished by a civilian court must report within a reasonable period without delay, and the disciplinary reason arises when that period elapses. It found that the court below had misapprehended the law on the starting point of the limitation period, with an effect on the outcome, and reversed and remanded the case on the unanimous opinion of the Justices.
Distinguishing conditions
- A disciplinary reason of taking money or entertainment or of misappropriating public funds, since Article 60-3(1) of the former Armed Forces Act sets the limitation period apart for those reasons.
- A warrant officer who reports the final punishment to the person holding disciplinary power within the reasonable period, since no breach of the reporting clause then arises.
- A person who is not under a duty to observe Army Regulations issued by the Chief of the Army Staff, since the duty to report rests on that obligation.
Record verification notes
Fix the date on which the criminal punishment became final, since the reasonable period for reporting runs from that date, and then work out how long that period lasted on this person's facts. Set the date of the disciplinary measure against the end of that period plus two years under Article 60-3(1) of the former Armed Forces Act. Check which version of the Army Regulations and which human resources rules for warrant officers were in force at that date, as the decision read Army Regulation 110 as applied by Army Regulation 111.
From the official text
Points at issue
[1] 징계시효에 관한 구 군인사법 제60조의3 제1항의 규정 취지 및 징계시효의 기산점(=징계사유가 발생한 때) [2] 육군 준사관이 민간법원에서 형사처벌이 확정된 경우, 육군규정 110 ‘장교인사관리규정’ 중 보고조항에 따라 지체 없이 상당한 기간 내에 징계권자에게 그 사실을 보고해야 하는지 여부(적극) 및 위 기간 내 보고하지 않은 경우, 징계시효가 기산되는 시점
Unofficial English translation
[1] The purport of Article 60-3(1) of the former Military Personnel Act concerning the statute of limitations for disciplinary action and the starting point of the statute of limitations for disciplinary action (= the time when the ground for disciplinary action arose) [2] Whether, where criminal punishment of an Army warrant officer has become final in a civilian court, he must report that fact to the disciplinary authority without delay within a reasonable period pursuant to the reporting provision of Army Regulation 110 'Officer Personnel Management Regulation' (affirmative) and, where no report is made within the said period, the point in time at which the statute of limitations for disciplinary action begins to run
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 구 군인사법(2011. 5. 24. 법률 제10703호로 개정되기 전의 것) 제56조 제1호, 제60조의3 제1항 [2] 구 군인사법(2011. 5. 24. 법률 제10703호로 개정되기 전의 것) 제19조 제2항, 제47조의2, 구 군인복무규율(2016. 6. 28. 대통령령 제27273호 부칙 제2조로 폐지) 제23조 제1항(현행 군인의 지위 및 복무에 관한 기본법 제25조 참조), 국군조직법 제10조 제2항
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