Supreme Court: "Rejection of Applicant with Theft Record Justified in Naval Academy Decision"

Supreme Court, Seocho-dong, Seoul.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that the Navy Academy's decision to disqualify an applicant with a theft record, discovered through a criminal investigation background check during the recruitment process of new cadets, was justified.

The Supreme Court's Third Division (Presiding Justice Noh Jeong-hee) announced on the 28th that it overturned the lower court's ruling in favor of A, who filed a lawsuit against the Superintendent of the Navy Academy to cancel the disqualification, and remanded the case to the Busan High Court.

The court stated, "The background check in this case included records such as deferred prosecution, and there is no legal basis or violation of higher laws to consider this unlawful. However, the lower court judged the background check to be illegal," adding, "This judgment involved a misinterpretation of Article 6, Paragraph 1 of the Act on the Expiration of Punishment and related legal principles concerning background checks, which affected the ruling."

Article 6, Paragraph 1 of the Act on the Expiration of Punishment (Restrictions on Criminal Record and Investigation Background Checks and Reporting) defines the scope of criminal and investigation background checks and their reporting.

The court also noted, "In the selection process of cadet applicants, decisions on pass/fail, admission qualifications, and selection methods are discretionary acts that the Superintendent of the Academy can freely determine within the scope of relevant laws and school regulations, considering necessary character, aptitude, academic background, and knowledge to achieve educational objectives," and added, "Unless such decisions are clearly an abuse or deviation of discretion, they cannot be deemed illegal."

It further explained, "The lower court's ruling that the disqualification notice was illegal involved a misinterpretation of the legal principles regarding the discretionary authority of the cadet selection authority, which influenced the judgment," as the reason for overturning and remanding the case.

In June 2019, A applied for the '2020 Academic Year 78th Navy Cadet Selection Exam,' passed the first written test, and took the second test consisting of a physical examination, fitness test, and interview, but was notified of disqualification in October of the same year.

The cause was the discovery of a past criminal record during the investigation background check on A.

A had received deferred prosecution twice in 2018 for stealing three items worth about 100,000 won, including a Bluetooth speaker, and in January 2019, had been given the lightest juvenile disposition (Type 1 disposition: custody entrusted to guardian) by the family court for unlicensed motorcycle driving.

Although deferred prosecution means the facts are acknowledged but the prosecutor decides not to indict, it does not leave a criminal record but does remain in the investigation background.

A filed a lawsuit requesting cancellation of the disqualification, citing that deferred prosecution was not a disqualification reason according to the school's recruitment announcement and that the school's website Q&A section stated, "Those who have received a sentence of imprisonment or higher are disqualified, so those with deferred prosecution have no problem applying."

A also claimed that the school's investigation background check was illegal and that the disqualification based on it exceeded the scope of discretion.

The first and second trials ruled in favor of A.

Article 6, Paragraph 1 of the Act on the Expiration of Punishment categorizes cases where criminal or investigation background checks can be conducted as: ▲ cases necessary for criminal investigation or trial (Item 1), ▲ cases where background checks are conducted based on presidential decrees related to security work under the National Intelligence Service Act (Item 5), and ▲ cases necessary for admission and appointment of cadets, officers, warrant officers, non-commissioned officers, and civilian employees of each military branch (Item 7). Paragraph 5 of the same article delegates the detailed scope of these checks to presidential decrees.

According to the enforcement decree, investigation background checks related to juvenile referrals or deferred prosecution are allowed when necessary for cadet admission, but not when conducting background investigations.

The court took issue with the school requesting a background investigation on A through the Military Security Support Unit based on security work regulations, which confirmed the investigation record.

Even if investigation background checks are permitted for cadet admission, obtaining such data through a background investigation under the National Intelligence Service Act, a completely separate system, is procedurally illegal.

The school argued that the action was taken according to the National Defense Security Work Directive's background investigation handling guidelines, enacted under delegation from the National Intelligence Service Act and other laws, but the court rejected this, stating, "The guideline exceeds the limits of delegation from higher laws and is therefore invalid."

However, the Supreme Court's judgment differed.

The court first interpreted that background investigations on cadet applicants conducted as part of national security work under the National Intelligence Service Act and security work regulations are unique duties legally assigned to the National Intelligence Service.

Quoting a Supreme Court ruling, the court noted, "Cadets are members of a special educational institution fully funded by the state to produce military officers, and upon admission, they are enrolled in the cadet military register and treated as warrant officers, establishing a special status relationship," and added, "Therefore, each military academy superintendent has the responsibility to select cadets with excellent qualities such as loyalty, sincerity, and reliability toward the nation."

The court further stated, "Although the background check in this case may have violated the handling guidelines or selection regulations as pointed out by the lower court, these guidelines and regulations are merely administrative instructions that are difficult to enforce against the public, so violating them does not make the background check illegal."

Since higher norms such as Article 6, Paragraph 1, Item 7 of the Act on the Expiration of Punishment and Article 7, Paragraph 2, Item 2 of the enforcement decree define the scope of criminal and investigation background checks, including juvenile referrals, deferred prosecution, and decisions of no prosecution, as necessary for admission and selection of cadets, the court concluded that the school's acquisition of A's investigation background data was not problematic.

This content was produced with the assistance of AI translation services.