According to the former Disciplinary Rule (Rules 180) amended on February 1, 2016, [Attachment 5] of the former Disciplinary Rule 180 (Rules 180) provides that refusal of drinking alcohol measurement is more illegal than that of drinking alcohol, and refusal of drinking measurement is not separately enumerated in the aggravated type of act (in case of refusal of drinking alcohol measurement on at least two occasions, personal and material traffic accidents causing damage but refusal of drinking measurement, etc.), but it is not included in the aggravated type of act related to refusal of drinking alcohol measurement, the case holding that the above disposition of refusal of drinking alcohol measurement cannot be viewed as legitimate in light of the above legal principles, considering that the above disposition of refusal of drinking alcohol measurement was clearly included in the criteria for disposition of refusal of drinking alcohol disposal on the ground that the above disposition of refusal of drinking alcohol measurement was not a legitimate one, and that the above disposition of refusal of drinking alcohol measurement was not a legitimate one of the criteria for disposition of refusal of drinking alcohol disposal under the social norms.

2. The costs of lawsuit shall be borne by the Plaintiff.

A. After being appointed as a civilian military employee on July 1, 1983, the Plaintiff served as the ○○ Military Service Corps from April 2, 2014 to February 12, 2018.

B. On June 1, 2017, the Plaintiff was indicted for committing a violation of the Road Traffic Act (refluence of measurement) with the following contents and was sentenced to imprisonment with prison labor for 6 months and one year of suspended execution at the first instance court. Accordingly, the Plaintiff appealed and was sentenced to a fine of 10 million won at the appellate court on December 7, 2017, and the said judgment became final and conclusive.

On August 20, 2016, the Plaintiff, included in the main text, at around 00:34, around 200:0 on August 20, 2016, when he was driving a vehicle with alcohol in the front parking lot of the same apartment complex from the △△△△△dong, the front of the same apartment complex into the front parking lot of the same apartment complex, and the part is the back of the above vehicle driven by the Plaintiff, which is the front door of the car driven by the victim parked in the underground parking lot. The Plaintiff, at around 00:45 on the same day, has a large amount of smelling to the Plaintiff from the police officer belonging to the Gyeongbuk-do Police Station Mandong, who was dispatched after receiving the report at around 00:45, has a considerable reason to recognize that the Plaintiff was driving under the influence of alcohol, and thus, the Plaintiff did not comply with the request of a police officer for drinking alcohol measuring method through a drinking measuring instrument for approximately 20 minutes during a sobold distance without any justifiable reason.

C. On February 9, 2018, the Defendant dismissed the Plaintiff on the ground that the Plaintiff violated his/her duty to maintain dignity due to the instant misconduct on February 27, 2018 (hereinafter “instant disposition”).

라. 원고는 이 사건 처분에 불복하여 2018. 3. 22. 항고하였으나, 제◁작전사령관은 제◁작전사령부 군무원항고심사위원회의 의결에 따라 2018. 9. 12. 위 항고를 기각하였다.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, 4, and 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Violation of the obligation to comply with the processing criteria

The former Disciplinary Regulations (wholly amended on February 1, 2016, 180, 180, 2016, hereinafter referred to as the "Disciplinary Regulations") [Attachment 5] Criteria for the disposal of drunk driving (hereinafter referred to as the "processing Criteria of this case") clearly distinguish from the "driving of alcohol" and the "Refusal to measure the drinking alcohol," and the criteria for disposal are different depending on the degree of blood alcohol in the case of drunk driving. Thus, the same criteria for disposal cannot be applied to the case where the plaintiff refused to measure the drinking alcohol twice because the plaintiff refused to measure the drinking alcohol.

Therefore, the instant disposition is an illegal disposition made in violation of the instant processing standards, and must be revoked.

2) A deviation from or abuse of discretionary power

According to the disciplinary rules [Attachment 2] 1.b. (2) of [Attachment 2], in order to take a more aggravated disciplinary action than the processing standards according to the disciplinary regulations, special circumstances should be recorded in the review column or the action column for the person having authority to take an action, etc., and the defendant should have reviewed and reflected the special circumstances. The defendant made the disposition in this case more aggravated than the processing standards in this case without properly comparing and comparing the circumstances more favorable to the plaintiff even though they

Therefore, the instant disposition should be revoked because it is illegal as a disposition that deviates from or abused discretionary power.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the processing criteria have been observed or not

In addition, according to the instant processing criteria, where a blood alcohol level is below 0.1%, a blood alcohol level is below 0.1%, and where a blood alcohol level is above 0.1%, a refusal to take a alcohol level is defined as a type of behavior with a larger illegality. In addition, according to the instant processing criteria, a refusal to take a alcohol level than a blood alcohol level is defined as a “temporary suspension” and a refusal to take a alcohol level is defined as a type of behavior with a larger illegality. In addition, according to the instant processing criteria, a person who refuses to take a alcohol level twice or more (in case of refusal to take a alcohol level, it caused a traffic accident causing human and material damage, but refuses to take a alcohol level, etc.), other than the aggravated types of behavior (in case of refusal to take a alcohol level twice or more times, it is deemed that the refusal to take a alcohol level is not included in a alcohol level, as alleged by the Plaintiff, any unreasonable disciplinary measure may not be taken against the aggravated types of behavior related to the refusal to take a alcohol level.

Article 44(2) of the former Road Traffic Act (amended by Act No. 15530, Mar. 27, 2018) provides that “When there are reasonable grounds to recognize that a person has driven a motor vehicle, etc. under the influence of alcohol, police officers may measure the person in the influence of alcohol, and in such cases, the driver shall comply with a police officer’s measurement.” Article 148-2(1) of the same Act provides that “a person who has violated Article 44(1) two or more times and again drives a motor vehicle, etc. under the influence of alcohol in violation of Article 44(1) of the same Act (Article 44(2) of the same Act shall be punished by imprisonment with prison labor for not less than one year but not more than three years or by a fine not less than five million won but not more than one million won.” Article 148-2(1) of the same Act provides that a person who again drives a motor vehicle under the influence of alcohol (Article 44(2) of the same Act) shall be punished by the same statutory punishment as the act of refusing of drinking.

In full view of the contents of the relevant provisions, it is reasonable to view that the “driving” of the instant processing criteria as a matter of interpretation of the disciplinary provision includes “recover operation” as “recover operation,” and on a different premise, the Plaintiff’s assertion that the Defendant violated the above processing criteria is without merit, and the instant disposition is lawful.

2) Whether the discretion is deviates or abused or not

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure is placed at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure as an exercise of discretionary authority has considerably lost validity under the social norms, it may be deemed unlawful. If a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by taking into account various factors, such as the content and nature of the misconduct causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for the determination of disciplinary measures, etc. (see Supreme Court Decisions 2010Du16172, Nov. 11, 2010; 2010Du2027, Dec. 23, 2010, etc.).

(10) According to the above evidence and evidence, the plaintiff's disposition of disciplinary action No. 1 and No. 2 (including number 1) can be seen as falling under "divers or suspension from office" if drinking is carried out two or more times according to the above processing standards, and the "divers or refusal of drinking" of the above processing standards should be deemed as included. ② Under Article 8 (1) of the Discipline Regulation, the disciplinary action should be demanded if the alleged facts of disciplinary action are carried out or included. Under Article 46 (3), if the facts of disciplinary action are considered to fall under drinking, it shall not be considered as favorable to the plaintiff even if the facts of disciplinary action under the Awards and Decorations Act were received, and the plaintiff's disposition of disciplinary action No. 2 is deemed to be unlawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges in the future (Presiding Judge)