Gwangju Southern-gu

2. Stambed ○.

Gwangju Northern-gu

[Defendant-Appellant] Plaintiff 1 et al.

Attorney Lee Young-soo, Justice Lee Young-young

Gwangju Dong-gu

Representative ○○○

[Defendant-Appellee] Defendant 1 and 2 others

2. The plaintiff Kim ○-○'s claim is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff Kim ○ and the Defendant is borne by the Plaintiff Kim ○, while the part arising between the Plaintiff Park ○ and the Defendant is borne by the Defendant.

A. Status of the parties

1) The Defendant is a national university-affiliated institute established under the Act on the Establishment of National University-affiliated Institutes.

2) Nonparty 1 was the head of the Defendant’s office, and Plaintiff Kim-○ was the children of the deceased Kim-○, and Plaintiff Park Jong-○ was the female-child of Plaintiff Kim-○.

B. Application for and appointment of the plaintiffs

1) On April 25, 2018, the Plaintiffs applied for each of the recruitment examinations (the first and second examinations; hereinafter referred to as “instant appointment examinations”) conducted in accordance with the Defendant’s “plan to recruit employees (the probationary positions) and implementation plan for the open recruitment examination.”

2) The Plaintiffs passed the instant appointment examination on June 21, 2018 and were appointed as Grade VI health.

(c) Requests for special investigation and disposition of employment rates by the Minister of Education;

1) On December 30, 2019, the Minister of Education notified the Defendant of the disposition based on the result of the study on the transfer of the recruitment rate, and pointed out that the Defendant’s employment process pointed out that the following matters (hereinafter referred to as “instant intellectual matters”) were unreasonable, and requested the Plaintiffs to take measures to pass or revoke the appointment, and to reprimand the network Kim○-○.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

2) On January 6, 2020, the Defendant sent a group e-mail to the Plaintiffs, accompanied by a survey report and an application for review, stating that the Plaintiffs may raise an objection against the said disposition. The Defendant sent the group e-mail of the title “the notice of the special investigation of the employment cost of the Ministry of Education” to the Plaintiffs.

3) Unlike paragraph 1 of this case’s pointed out, the Plaintiffs did not know at all that, in the English issue book of this case, ○○○ purchased two English questions book (hereinafter “the English question book of this case”), or that the professor of this case did not know at all the fact that ○○ purchased two English questions book (hereinafter “the English question book of this case”) from the loyalty book of this case.

In addition, Plaintiff Kim ○ does not have received the delivery of what the book of English issues in this case from the deceased Kim ○○, and Plaintiff Park ○ also did not have received the book of English issues in this case from the deceased Kim ○○ or Plaintiff Kim ○○. The Plaintiffs passed the appointment examination of this case with their actual abilities, and even if there is no evidence that they passed the appointment examination of this case, the Minister of Education demanded the Defendant to pass the selection examination of the Plaintiffs and to revoke the appointment is an excessive demand exceeding the discretion of the Ministry of Education. On the other hand, in relation to the intellectual matters in this case, the investigation against the Plaintiffs is underway, and thus, the appropriate disposition based on the results of the investigation is required. On January 21, 2020, the Defendant filed an application for review with the Minister of Education along

4) As a result of deliberation on March 4, 2020, the Minister of Education recognized the same facts as the instant intellectual matters, and decided to dismiss the said request for reexamination on the grounds that the punishment and criminal punishment differ from the basis, purpose, content, and object of the power.

D. The defendant's pass and revocation of appointment for the plaintiffs

1) On March 25, 2020, the Defendant’s Special Personnel Committee held on March 25, 2020 passed a resolution as follows: “The Defendant’s Special Personnel Committee determined the pass and cancellation of appointment for the Class 6 Plaintiff Kim-○, and the 6th Plaintiff Park ○, who was in the special examination of the employment rate of the educational department, on the agenda of “the process of the illegal successful applicants based on the result of the special examination of the employment rate of the educational department,” and decided as “the pass and cancellation of appointment for the Plaintiff

2) On April 1, 2020, the Defendant: (a) as a result of the special investigation of the employment cost survey of the Ministry of Education for the Plaintiffs, found out the English question office of this case from the general secretary and the employees of the former Secretary General (Gim○) and disclosed it to the Plaintiff Kim○○; and (b) Plaintiff Kim○ also released the fact to the Plaintiff Kim○○○, thereby passing the written examination in compliance with both paragraph 20 and paragraph from the above problem office; (c) there is suspicion of non-qualified passing the written examination. For the Plaintiffs on the grounds that “a decision on passing the examination and cancelling the appointment shall be made in accordance with Article 24 of the Regulations on the Examinations for the Appointment of Employees” (hereinafter “instant appointment cancellation disposition”); and (d) notified the Plaintiffs thereof.

E. Relevant provisions

At the time of the examination for appointment, the Defendant’s rules on the execution of the examinations for the appointment of employees (hereinafter referred to as the “Rules of Execution”) and the Code of Conduct for Officers and Employees of ○○ University Hospital (hereinafter referred to as the “Code of Conduct”) are as follows:

Article 11-2 (Exclusion and Abstention of Examination Members) (1) of the Enforcement Rule for the Examination for Appointment of Employees shall be excluded in any of the following cases:

Article 24 (Measures against Cheating, etc. and Remedy for Damage) (1) In an appointment examination, an examination shall be invalidated for a person who has submitted false facts or has committed other unlawful acts at the time of submitting an application for the examination, and no person who has submitted various examinations conducted at a hospital for the next five years shall apply for a decision on disciplinary action to the personnel committee in cases where the person who has committed such act is a hospital employee. (1) Where an executive officer or employee falls under any of the following subparagraphs, he/she shall report the relevant fact in writing (including electronic documents; hereinafter the same shall apply) to the president in accordance with attached Form 3: Provided, That this shall not apply to cases where a relative (referring to a relative under Article 767 of the Civil Act) within the third degree of his/her executive officer or employee is related to his/her duties is a relative (including an employee who may exercise de facto influence over personnel affairs).

[Ground of recognition] Facts without dispute, Gap evidence 1 (including branch numbers, hereinafter the same shall apply), Eul evidence 5 to 13, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiffs' assertion

1) Plaintiff Kim ○ does not have received from the deceased Kim 00 the delivery of what is the English issue book of this case, and Plaintiff Park ○ also did not have received the delivery of what is the English issue book of this case from the deceased Kim ○○ or Plaintiff Kim ○○. As such, the Plaintiffs did not commit any unlawful act in the appointment examination of this case, and thus, the revocation of the appointment of this case is null and void since there was no reason to do so.

2) The deceased Kim○○ violated the enforcement rules by performing the role of the examination management member upon knowing that the plaintiff Kim○○ was applying for the instant appointment examination, but there was no fact that the deceased Kim○○ did not exercise the influence over the result of the written examination by the plaintiff Kim○, so it is difficult to view it as an unlawful act.

3) Even if the deceased Kim-○ committed an unlawful act, the plaintiffs passed the appointment examination of this case with their actual capabilities, so it cannot be said that they were unfairly selected by receiving the benefit of the deceased Kim-○'s improper act.

B. Summary of the defendant's assertion

1) The deceased Kim-○, who leaked the English problem house of this case and informed the plaintiff Kim-○, and the plaintiff Kim-○, notified the plaintiff Kim-○ of this fact to the plaintiff Kim-○. The plaintiffs met both the 20 questions written in the written examination and passed the written examination at the English problem house of this case, and thus, the plaintiffs constitute a person who committed an unlawful act under Article 24 of the Enforcement Rule.

2) Even if it is not recognized that the Plaintiffs committed a direct unlawful act, the deceased Kim○○, which is closely related to the Plaintiffs, committed the instant intellectual property act for the Plaintiffs (such as unfair participation by the members in charge of the examination management of the employment examination examination examination), paragraphs 3 (3) and 4 (Voluntary Replacement and DNA) of the instant intellectual property. Even if the Plaintiffs were not specifically aware of such fact, the Plaintiffs constitute a person who committed an unlawful act under Article 24 of the Enforcement Rule, since the Plaintiffs could not be evaluated as a person selected fairly due to such unlawful act, it constitutes a person who committed an unlawful act.

3. Determination on the claim by the plaintiff Kim ○-○

A. Whether a disposition revoking appointment of this case is legitimate

1) Issues

As seen above, Article 24 (1) of the Enforcement Rule provides that "any person who has submitted false facts or has committed other unlawful acts at the time of submitting the application for the appointment examination shall be null and void, and all kinds of examinations conducted at the hospital for the next five years shall not be applied, and in the case where an illegal person is a hospital employee, a resolution on disciplinary action shall be requested to the personnel committee." The defendant decided to pass or revoke the appointment in accordance with Article 24 of the Enforcement Rule against the plaintiffs, and the decision is made to determine whether the plaintiff Kim○○ constitutes "any other unlawful act" in the appointment examination of this case.

2) Whether the English issue or the English test is disclosed in advance.

In full view of the purport of Gap evidence Nos. 3 and 4, the Minister of Education filed a complaint against the plaintiffs on February 14, 2020 with the grounds for filing a complaint under Paragraph (1) of this case; ② on April 29, 2020, the Gwangju District Police Agency sent the above case to the Gwangju District Prosecutors’ Office as non-prosecution opinion; ③ on December 2, 2020, the Gwangju District Public Prosecutor’s Office did not impose a non-prosecution disposition (Evidence of Evidence) against the plaintiffs (No. 2020 type 6892). ④ The reason for the above non-prosecution disposition is difficult to confirm that the defendant provided an English language entry issue to Kim○, etc.; ② The Gwangju District Police Agency stated that there was no other evidence to find that there was no other evidence to find that there was no other evidence to find that there was any leakage of English questions or any other evidence to find that there was no other evidence to find that there was an omission of the contents of this case from ○○○, etc.

Therefore, the evidence submitted by the Defendant alone is insufficient to recognize the fact that the deceased Kim○ discloseds the English issue or the English language language issue of this case in the appointment examination of this case, or that the plaintiff Kim○ was provided with the English issue or the English language examination from the deceased Kim○○, and there is no other evidence to acknowledge it.

3) Whether the participation of the deceased Kim○-○ in the examination management committee constitutes an unlawful act

A) the purport of the exclusion provision of the enforcement rule

As seen earlier, Article 5(1) of the Code of Conduct provides that ① a relative within the fourth degree of an executive officer and/or employee shall report to the president in writing the relevant fact if he/she is a person related to his/her duties: Provided, That this shall not apply to a simple civil petition prescribed by the president; ② an employee in charge of personnel affairs (including an employee who is able to exercise a de facto influence on personnel affairs) shall not exercise undue influence, such as ordering the appointment of his/her family member to an institution to which he/she belongs; ③ Article 11-2(1) of the Code of Conduct provides that the examination commissioner shall not be excluded in any of the following cases; ② Article 11-2(1) of the Code of Conduct provides that "a person who is or was a relative of the examination commissioner him/her;" and subparagraph 1 provides that "a person who is or was a relative of the examination commissioner with him/her shall be excluded in any of the following cases."

In full view of the purport of the above provisions, Article 11-2 (1) of the Enforcement Rule of the Decree to exclude relatives or interested persons from the examination committee members is a mandatory provision to exclude from the examination committee members all of the relatives of applicants or other persons having special circumstances that make it difficult to expect the fairness of employment in order to ensure fair and reasonable appointment procedures. The examination committee members having such grounds for exclusion are naturally excluded from the relevant execution of duties, regardless of whether the examination results affected the examination results, and the examination procedure for appointment in violation thereof is against the justice of the procedure (see, e.g., Supreme Court Decision 94Da59882, Apr. 28, 1995).

B) The meaning of “other unlawful act”

"Other unlawful acts" referred to in Article 24 of the Enforcement Rule refers to all acts that undermine or threaten to undermine the fairness of the recruitment process. In addition, if the applicant committed an unlawful act on behalf of another person who is closely related to the applicant, even though the applicant was unaware of such unlawful act, if the applicant was unable to be selected fairly due to such unlawful act, it is reasonable to deem that the employment of the applicant is also caused by such unlawful act (see, e.g., Supreme Court Decision 2006Da23817, Jul. 13, 2006).

C) Specific determination

Facts without dispute, Gap evidence 2, Eul evidence 6 to 8, and the whole pleadings

In light of the purport of the provision on the exclusion of the Administrative Rule as seen earlier, the reason behind the above facts and circumstances revealed that, despite being aware that Plaintiff Kim○, an son, was applying for the appointment examination of this case, he participated in the appointment examination of this case, and this constitutes an unlawful act in violation of the exclusion provision of Article 11-2(1) of the Enforcement Rule, regardless of whether the deceased Kim○○ was affected by the appointment result of Plaintiff Kim○○, which in itself constitutes an unlawful act in violation of the exclusion provision of Article 11-2(1) of the Enforcement Rule. Furthermore, even if the above act of the deceased Kim○○ was committed by another person closely related to Plaintiff Kim○○, which would have caused the benefit of such unlawful act, even if Plaintiff Kim○○ was not aware of such an unlawful act, it constitutes a case where the applicant could not be evaluated as a person selected fairly due to such unlawful act, and eventually, Plaintiff Kim○○ should have passed the appointment examination of this case by an unlawful act.

① The deceased Kim-○ was commissioned as an examination management member of the appointment examination of this case, and he/she was8.

5. In light of the general secretary general and the person in charge of employment, the Plaintiff Kim○-○ received the appointment examination in the instant case from the regular secretary general and the person in charge of employment, and the Plaintiff Kim○-○ received a report on the subject of exclusion from the appointment examination, but instructed the Defendant Kim○-○ to the effect that “I will not be responsible for it. I will not be able to do so if I would not know other person.”

② On May 20, 2018, the date of the first written examination for the appointment of the instant case, the deceased Kim○-○.

In accordance with Article 11-2 (Exclusion and Abstention of Examination Members), the person signed a written oath to the effect that he/she has no interest in this open recruitment examination as a written examination for the appointment of this case, and that he/she shall sign a written pledge to the effect that he/she shall faithfully perform his/her duties and, if any security problem occurs in the course of the written examination, he/she shall take all responsibility therefor.

③ On June 19, 2018, the date of the second interview on the appointment examination of this case, the deceased Kim○-○.

In accordance with Article 11-2 (Exclusion and Abstention of Examination Members), the person signed a written oath to the effect that he/she has no interest in this open recruitment examination as a member of the interview examination of this case, and that he/she shall sign a written pledge to the effect that he/she shall carry out an interview for appointment of Blods fairly and faithfully as well as an interview for appointment of Blods, and if all security problems occur during the course of the interview, he/she shall

④ 망 김○○은 2018. 7. 11. 피고 노사공동위원회에서 ‘채용결과를 나는 알아, 우리 아들은 몇 등인지 몰라 필기에. 나는 알지. 그래서 부탁 안 해도 면접에 되겠더라고, 나는 냅둬부렀어. 왜냐면..…” 이라고 말하였다. 이와 같이 망 김○○은 인사업무를 담당하거나 인사업무에 사실상 영향력을 미칠 수 있는 시험위원이었음에도 원고 김○○의 필기시험 성적을 사적인 목적에서 확인하였고, 만약 원고 김○○의 필기시험 성적이 높지 않은 경우에는 다른 시험위원들에게 원고 김○○의 합격을 부탁하고자 했던 것으로 보인다.

B. Sub-committee

Therefore, the Defendant’s revocation of appointment against Plaintiff Kim○-○ is recognized as lawful on the ground that there exists a justifiable reason. Therefore, Plaintiff Kim○-○’s claim is without merit.

4. Determination on the Plaintiff’s claim by Park ○-○

A. Relevant legal principles

The employer should assert and prove that dismissal of workers is null and void unless there are justifiable grounds (see, e.g., Supreme Court Decision 91Da29811, Aug. 14, 1992).

B. Whether the instant revocation disposition against the Plaintiff Park ○-○ was lawful

1) Whether the English questions are divulged in advance of the entry into or out of the English examination.

In full view of the overall purport of the statements and arguments in Gap evidence Nos. 3 and 4, it is insufficient to recognize the same facts as seen in the above paragraph 3. A. 2. Ultimately, the evidence submitted by the defendant alone is insufficient to recognize the fact that the plaintiff Park ○○ was provided with the English issue or the English test issuing issue at the appointment examination of the case, and there is no other evidence to acknowledge it.

2) Whether the participation of the deceased Kim○-○ in the examination management committee constitutes an unlawful act

As seen earlier, Article 11-2(1) of the Enforcement Rule provides that "a test commissioner shall be excluded in any of the following cases," and subparagraph 1 provides that "a person who is or was a relative of the test commissioner himself/herself shall apply for the examination commissioner," and subparagraph 2 provides that "any other special circumstances where it is difficult to expect the fairness of employment."

In light of the above provisions, it is difficult to view that the Plaintiff ○ does not constitute a person who is or was a blood relative with the deceased Kim○○, but also constitutes “other special circumstances where it is difficult to expect the fairness of employment solely on the ground that the Plaintiff ○ was a female-child relationship with the deceased Kim○, who was a child of the deceased Kim○○.”

In addition, unless the defendant's assertion or proof exists that there is a special circumstance that it is difficult to expect the fairness of employment to the plaintiff Park ○○, it cannot be viewed that the deceased Kim○ does not automatically be excluded from the appointment procedure for the plaintiff Park ○. Therefore, with respect to the plaintiff Park ○, it is difficult to view that the act of the deceased Kim○ as a test management member constituted "other unlawful act", and therefore, the plaintiff Park ○ cannot be deemed to have committed an unlawful act.

3) Whether the act of the deceased Kim○-○ constitutes an unlawful act, such as voluntary replacement of the hard disc drive and DNA on the business-use computer

However, even if it is recognized that the act of voluntary replacement and dysing of the deceased Kim-○’s computer for business purpose was true, the above act was committed on October 18, 2019, after the appointment examination of this case, and it is difficult to view that the deceased Kim-○ was “other unlawful act in the appointment examination.” Therefore, it is difficult to deem that the above act constituted a case where another person closely related with the plaintiff Park Jong-○, who committed an unlawful act for the supporter.

C. Sub-committee

Therefore, it is difficult to see that the plaintiff Park ○ is a person who commits an unlawful act under Article 24 of the Enforcement Rule. Therefore, it is reasonable to deem the cancellation of the appointment of the plaintiff Park ○○ as being null and void as it was done without any justifiable ground.

5. Conclusion

Therefore, the plaintiff Park Jong-○'s claim is justified, and the plaintiff Kim-○'s claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Chak-in Ghana

Judges Laos