[2] The case holding that the disposition of removal from office against the above local public officials constitutes a case where the scope of discretion is exceeded and abused without considering the circumstances such as whether the above local public officials are likely to be subject to disciplinary action or whether their continuous performance of official duties would cause danger to fair performance of official duties

[2] The case holding that the disposition of removal from office against the above local public officials constitutes a case where the scope of discretion is exceeded and abused without considering the circumstances such as whether the above local public officials are likely to be subject to disciplinary action or whether their continuous performance of official duties would cause danger to fair performance of official duties

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

A. On November 16, 2004, the defendant, who is a public official working in the office of Jinju-si at the Standing Committee of the Gyeongnam-do on the ground that the plaintiffs were absent without permission on November 15, 2004, and then participated in the general strike conducted on the same day at the so-called Korean Public Officials' Union and demanded the so-called Korean Public Officials' Union to make a resolution of "serious disciplinary action" on the ground that he violated the duty of prohibition of collective action, duty of good faith, and duty of care under the Local Public Officials Act. On November 18, 2004, the defendant made a disposition of removal from position (hereinafter referred to as "disposition of this case") against the plaintiffs pursuant to Article 65-3 (1) 2 (a) of the Local Public Officials' Act (Article 65-2 of the same Act is written as evidence 2 of the same Act,

B. (1) The Defendant requested a resolution on a disciplinary action against the Plaintiffs, and the director of the Jinju Construction Division prepared on November 15, 2004, did not undergo a direct investigation against the Plaintiffs on the basis of the submission of the present situation of persons participating in the strike and the confirmation following the absence of absence from the Jinju-si self-collection team.

(2) The Defendant’s written opinion submitted to the Gyeongnam-do Personnel Committee at the time of the request for a disciplinary decision against the Plaintiffs contains the following: (a) the Plaintiffs’ mistake is divided, and the Defendant’s written confirmation submitted by the Plaintiffs clearly shows that the grounds for the request for a disciplinary decision against the Plaintiffs are not related to the acceptance of money and valuables, entertainment, embezzlement or misappropriation of public funds, and expenses for the intensive purification.

(3) On November 15, 2004, at the Jinju Police Station, the plaintiffs heard the statement that "the executives of the Korean Public Officials' Union are blocking from attending the work on the day of the strike, and was gathered to work together with the club fee at the Ginnam Culture and Arts Center located at a distance of three minutes from the Jinju, and at around 08:50 on the same day, the plaintiffs did not attend the work on the part of the police officer misleading the plaintiffs as the participants in the strike while attending the work together with the construction director, who is the head of the department, at around 08:50 on the same day." (hereinafter referred to as "the statements in this case"). On November 17, 2004, the plaintiffs prepared and submitted to the defendant the statement with the same contents.

(4) On December 9, 2004, the defendant requested the Jinju Police Station to submit and cooperate evidence related to a request for disciplinary decision by a public official, and received the plaintiffs' statement from the same police station on December 13, 2004 on November 15, 2004.

C. (1) On December 14, 2004, the Plaintiffs filed an appeal seeking the revocation of the instant disposition with the Plaintiff’s assertion as to the same content as the instant statement with the Standing Do Review Committee.

(2) On the other hand, the Gyeongnam Provincial Personnel Committee decided that the plaintiffs' arguments such as the statements in this case are true considering the defendant's written request for disciplinary decision, written confirmation of absence from office (participation in work), investigation report, written statements of the plaintiffs and the director of the construction division at Jin-si, and written statements prepared by Jinju Police Station, etc., and issued reinstatement to the plaintiffs on the same day.

(3) On February 7, 2005, the above appeals review committee rendered a decision to dismiss the plaintiffs' appeal on the grounds that the disposition of this case became invalid, and that the plaintiffs cannot be deemed to have legal interests recovered by cancelling the disposition of this case which has already ceased to have effect.

[Based on Recognition: Statement of Evidence 1-1, Evidence 2, Evidence 2, evidence 3-1 through 3, evidence 4, evidence 1-5-1, 2, evidence 1-1 through 7, evidence 2-1 through 3, evidence 3-1, evidence 3-2, evidence 4, evidence 5-1 through 8, evidence 6-1 through 7, evidence 7-1, evidence 8- 8, evidence 1, 2, 9, evidence 10-1 through 8 of evidence 10]

2. Whether the lawsuit of this case is lawful

A. The parties' assertion

Although the plaintiffs have lost their validity in accordance with the "Unwritten decision of the Gyeongnam-do Personnel Committee", they claim that there is a benefit to seek cancellation of the disposition of this case since they not only would have been disadvantaged by 1/2 of the period of dismissal in the calculation of the service period for retirement allowances under the Public Officials Pension Act, but also they suffered from the suffering treated as a public official who committed corruption. Accordingly, the defendant asserts that there is no benefit to seek cancellation of the disposition of this case since the status of the plaintiffs suffered from the disposition of this case as a result of the Gyeongnam-do Personnel Committee's decision on the request for a disciplinary decision against the plaintiffs, and all the disadvantages of remuneration were recovered before the disposition of this case. Thus, the defendant asserts that there is no benefit to seek cancellation of the new disposition of this case against the plaintiffs.

(b) Markets:

(1) The meaning of Article 65-3 (1) 2 of the Local Public Officials Act provides that "no position may be assigned to a person who requires a disciplinary decision" shall be interpreted to the effect that no position may be assigned only while a disciplinary decision is required. Thus, if a disciplinary decision is made or a disciplinary decision is revoked after the removal, the above removal from position shall be invalidated (see Supreme Court Decision 78Nu372 delivered on February 13, 1979). Thus, in this case, the effect of the disposition in this case shall be deemed to be invalidated by the Gyeongnamdo Personnel Committee's resolution against the plaintiffs.

As long as the validity of the instant disposition is invalidated, no legal interest infringed upon the Plaintiffs’ remaining appearance shall be deemed to exist. However, Article 12 of the Administrative Litigation Act provides that a lawsuit may be brought in cases where there is a legal interest that is restored due to the cancellation of the instant disposition, etc. even after the effect of the disposition, etc. is extinguished due to the lapse of the period, the execution of the disposition, etc., and other causes. Thus, in this case, if specific and direct interest that is restored by the cancellation of the instant disposition is recognized, the instant lawsuit shall be deemed to have

(2) Therefore, we examine whether there is a legal interest that is recovered by cancelling the instant disposition against the Plaintiffs.

The Plaintiffs cannot be deemed to have a legal interest that is recovered from the cancellation of the instant disposition, solely on the ground that the Plaintiffs suffered from the pain treated as a corruption official due to the existence of the records on their personnel record cards.

However, Article 23(5) of the Public Officials Pension Act provides that the period of dismissal from office in calculating the period of service for retirement allowances shall be reduced by 1/2 of that period. However, in cases where a request for a disciplinary decision is not accepted by the personnel committee, there is no provision regarding the treatment of part which is not included in the period of service in calculating retirement allowances during the period of dismissal from office on the ground of such request for a disciplinary decision. Accordingly, the plaintiffs are at risk of suffering from disadvantage in calculating the period of service under the Public Officials Pension Act due to the disposition in this case, and there is a legal interest to seek the cancellation of the disposition in this case.

3. Whether the instant disposition is lawful

On the other hand, the removal from position under Article 65-3 (1) 2 of the Local Public Officials Act has a specific risk of undermining the fairness of performing public duties and the trust of the public in case a public official who continues to hold a position and perform his duties until he is subject to a disciplinary action. Thus, the purpose of preventing it in advance is to prevent it. Thus, even if the defendant made a request for a disciplinary action against the plaintiffs, the disposition in this case cannot be justified merely because it does not mean that the disposition in this case is justified. Whether the plaintiffs are highly likely to be subject to a disciplinary action under Article 65-3 (1) 2 of the Local Public Officials Act, and whether the plaintiffs' continuous performance of duties causes danger to fair performance of public duties (see Supreme Court Decision 98Du15412 delivered on September 17, 199).

As above, the defendant requested a resolution on disciplinary action only on November 15, 2004 on the basis that he was absent from office without going through the investigation of the plaintiffs, and the plaintiffs have asserted the same as the statement in this case since he was arrested to the police officer on November 15, 2004, and the defendant prepared and submitted a written statement with such contents to the defendant, but the defendant did not consider the plaintiffs' claim up to the disposition in this case, and the defendant received the statement from the Jinjin Police Station after the disposition in this case, and the defendant also recognized that the reasons for the request for resolution against the plaintiffs are not related to the receipt of money and valuables, embezzlement of public funds, and expenses subject to intensive purification. In light of the above, the defendant's disposition in this case was conducted without considering whether it is probable that the plaintiffs would be subject to disciplinary action under Article 65-3 (1) 2 of the Local Public Officials Act, and whether it would cause danger in the fair performance of official duties when he continued to perform his duties, and it does not deviate from or abuse its discretionary power.

4. Conclusion

Therefore, the plaintiffs' claims of this case are accepted on the grounds of the reasons.

Judges Yellow Mung-Gyeong (Presiding Judge)