[2] In a case where a public official Gap posted a letter that criticizes the Commissioner of the National Tax Service prior to the internal communication network of the National Tax Service, and the court subsequently rendered a dismissal order against Gap, and each judgment became final and conclusive by not guilty of the facts charged in violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Communications Network Utilization and Communications Network Utilization and Information Protection (Defamation) against Gap, the case holding that the court below erred by misapprehending the legal principles in holding that the above disciplinary action constitutes a tort in relation to Gap, even though it is objectively evident that the facts caused by the disciplinary action against Gap cannot be deemed as a ground for disciplinary action, or if the person having authority to take an action pays a little attention, it

1. Where a disciplinary measure is taken against a State public official as prescribed by the State Public Officials Act and relevant Acts and subordinate statutes, when the person having authority over disciplinary measures against a State public official demands a disciplinary measure to the disciplinary committee, and the disciplinary committee, after which the person having authority over disciplinary measures against a State public official has made a disciplinary measure according to the contents of the disciplinary measure, if the disciplinary measure was taken autonomously by the disciplinary committee members or by the person having authority over disciplinary measures, and it is not unreasonable to take the disciplinary measure in light of the actually recognized disciplinary measure, it shall be deemed that the disciplinary measure would result in a mistake in interpreting the Acts and subordinate statutes concerning the seriousness of the disciplinary measure, barring special circumstances. In such a case, it shall not be deemed that the disciplinary measure was taken against a public official who is not a legal expert or by the person having authority over disciplinary measures for the reason that the determination of disciplinary measures was erroneous (see Supreme Court Decision 95Da6823, Apr. 23, 196, etc.). However, if the person having authority over disciplinary measures were to have been notified, it cannot be objectively and objectively deemed that it constitutes a disciplinary measure of disciplinary action under the same reason.

2. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

A. On May 28, 2009, the Plaintiff indicated the Nonparty’s misconduct by the former Commissioner of the National Tax Service, which was reported by the media under the title “I know that it had been done by the National Tax Service in the past.” On May 28, 2009, the Plaintiff posted this case’s bulletin board, including the Nonparty’s lecture and various social contribution activities to the employees conducted under the purpose of restoring the trust of the National Tax Service as the Commissioner of the National Tax Service. The Nonparty conducted a golf to preserve one’s own job, conducted an investigation into the Nonparty’s own job, conducted a search and seizure to the prosecutor, and eventually, posted the Nonparty’s organizational credibility to the prosecutor, which is a law with the value of human garbage, and which is not less than the level of human waste, which is not less than the level of human beings that has not been recycled. The Nonparty posted this case’s bulletin board to this case’s non-disclosure.

B. On June 4, 2009, the director of the Gwangju Regional Tax Office requested disciplinary action among the Busan Regional Tax Office (hereinafter “Disciplinary Committee”) pursuant to Article 7 of the Decree on Disciplinary Action against Public Officials on the ground that the Plaintiff posted false information based on the Plaintiff’s comments, comments, and the Plaintiff’s findings of investigation by the Inspector Office of the Gwangju Regional Tax Office, etc., and damaged the reputation of the National Tax Service and its employees (hereinafter “instant disciplinary action”).

C. On June 12, 2009, the Disciplinary Committee established pursuant to the State Public Officials Act recognized both the grounds for disciplinary action of this case, and decided to dismiss the Plaintiff. On June 15, 2009, the Director of the Gwangju Regional Tax Office imposed a disciplinary action against the Plaintiff on the dismissal of the Plaintiff according to the disciplinary action of the Disciplinary Committee, and on the same day, filed a complaint against the Plaintiff with the prosecutor on the grounds that the Plaintiff damaged the honor of the former Commissioner

D. On July 8, 2009, the Plaintiff filed an appeal against the above disciplinary action with the Ministry of Public Administration and Security. On January 14, 2010, the appeals review committee fully recognized the instant disciplinary action, but decided to change the removal from office as the original disciplinary action, and the director of Gwangju Regional Tax Office rendered a disposition to change the removal from office to the removal from office (hereinafter “instant dismissal disposition”) on January 26, 2010, according to the resolution of the appeals review committee.

E. On January 15, 2010, the Plaintiff, who is dissatisfied with the above disposition of the appeals review committee, filed a lawsuit seeking revocation of the dismissal disposition of this case against the director of the Gwangju Regional Tax Office, and made efforts to withdraw or spread the notice of this case from the court on October 21, 2010, and apart from whether it constitutes a violation of the duty to obey, the Plaintiff cannot be deemed as a ground for the disciplinary action against the violation of the duty to maintain dignity, which is 5 of the grounds for the instant disciplinary action. Thus, the instant dismissal disposition was revoked on the ground that it was illegal disposition that the grounds for the dismissal disposition of this case did not exist, and the above judgment was dismissed and finalized, respectively.

F. On the other hand, on December 30, 2009, the prosecutor indicted the Plaintiff for violation of the Act on Promotion of Use of Information and Communications Network and Information Protection, etc. (Defamation) that the Plaintiff revealed openly false information through the information and communications network to defame the Nonparty, thereby impairing the Nonparty. On May 12, 2010, the first instance court of a criminal case found the Plaintiff guilty of only the facts constituting a violation of the Act on Promotion of Use of Information and Communications Network and Information Protection, etc. (Defamation) by factual presentation on the grounds that there is no proof as to whether the notice in this case was false or the Plaintiff was aware of such fact, and sentenced to a fine of KRW 70,00,000,000, and the Plaintiff appealed. On August 10, 2010, it is difficult to view that the appellate court had a purpose of slandering the Nonparty to the Plaintiff. Rather, it was judged that it was for the public interest and sentenced not guilty of the facts constituting defamation at factual time, and the

(3) According to the former State Public Officials Act (amended by Act No. 11530, Dec. 11, 2012; hereinafter “Act”) and the former Decree on Disciplinary Action against Public Officials (amended by Presidential Decree No. 22199, Jun. 15, 2010; hereinafter “Disciplinary Decree”), the person having authority over disciplinary action shall request the disciplinary committee to determine whether a public official under his/her jurisdiction has grounds for disciplinary action, and execute disciplinary action according to such resolution (Article 78(1) of the Act, Article 18, Article 19 of the Decree), even if the person having authority over disciplinary action was found to be aware of the facts above and the facts charged by the person having authority over disciplinary action, and thus, it is hard to view that the court below’s determination of disciplinary action was consistent with the first instance court’s determination of disciplinary action against the Plaintiff at the time of filing an appeal against the disciplinary action, and thus, it is difficult to view the Plaintiff’s request for disciplinary action to have authority over the same part of the disciplinary committee’s disciplinary action or disciplinary action.

4. Nevertheless, the lower court determined that the instant disciplinary action constitutes a tort in relation to the Plaintiff, solely based on the circumstances indicated in its reasoning, by objectively apparent that the facts constituting the grounds for disciplinary action in the instant case cannot be deemed to constitute grounds for dismissal on the ground of a violation of the duty to maintain dignity, and that if the Director of the Gwangju Regional Tax Office paid little attention, he could have easily known such circumstances. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for establishing tort caused by disciplinary action, thereby adversely affecting the conclusion of the judgment.

5. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)