2. The Defendant’s removal from his position against the Plaintiff on January 6, 2011 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The reasoning of this court’s judgment is as follows: (a) whether the instant disposition is legitimate; (b) the Plaintiff’s assertion, relevant statutes; and (c) the relevant part of the reasoning of the judgment of the first instance except for the following facts: (i) whether the instant disposition is legitimate; and (ii) whether the relevant part of the reasoning of the judgment of the first instance is identical to that of the relevant part (7). Therefore, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act; and Article 420 of the Civil Procedure Act.

< The part to be used in case of :

○ 3rd part of the 10th page “I did not give the Plaintiff an opportunity to vindicate or state his opinion before the instant disposition,” and “I did not follow the procedures prescribed in the Administrative Procedures Act, such as notifying the Plaintiff of the reason for the disposition before the instant disposition and giving the Plaintiff an opportunity to vindicate or state his opinion.”

○ In the attached Form “Related Acts and subordinate statutes,” this judgment shall be added to the “Related Acts and subordinate statutes.”

2. Determination

A. According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, in cases where an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, the administrative agency shall notify the parties concerned of the fact that the grounds for the disposition and the contents of the disposition, the legal grounds therefor, the submission of their opinions, and the processing methods when failing to submit their opinions, etc., and, in cases where other Acts and subordinate statutes do not stipulate that a hearing shall be held or a public hearing shall be held, the parties concerned shall be given an opportunity to present their opinions. However, the administrative agency shall not give prior notice or hear their opinions regarding the disposition.

If an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests and does not give prior notice or give the parties an opportunity to present their opinions under the Administrative Procedures Act, the disposition is unlawful unless it falls under an exception that does not give prior notice or give the opportunity to present their opinions.

B. Meanwhile, Article 3(2) of the Administrative Procedures Act provides that “this Act shall not apply to matters falling under any of the following subparagraphs,” and Article 3(2)9 provides that “The matters deemed difficult or unnecessary due to the nature of the relevant administrative action, such as conscription and call-up under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action under the Acts and subordinate statutes related to public officials, and other dispositions under the Acts and subordinate statutes related to personnel affairs, and matters prescribed by the Presidential Decree, which have undergone procedures equivalent to administrative procedures.” Accordingly, Article 2 of the Enforcement Decree of the Administrative Procedures Act provides that “The matters falling under any of the following subparagraphs” refers to matters falling under Article 3(2)9 of the Act and subparagraph 3 of the same Article provides that “the matters concerning disciplinary action and other dispositions by the Acts and subordinate statutes related to personnel affairs of public officials.”

In light of the legislative purpose of the Administrative Procedures Act with the aim of securing the citizen’s participation in the administrative process and ensuring the fairness, transparency, and reliability of the administration and protecting the rights and interests of the people, and the contents of Article 3(2)9 of the Administrative Procedures Act, the Administrative Procedures Act shall be excluded only in cases of a disposition that is deemed difficult or unnecessary due to its nature or that is subject to procedures equivalent to administrative procedures, not to exclude the application of the Administrative Procedures Act to the whole matters pertaining to dispositions under the Acts and subordinate statutes related to the personnel affairs of public officials (see Supreme Court Decision 2006Du20631, Sept. 21, 2007).

C. A public official subject to the disposition of removal from his position, as well as his/her duties, shall not be able to engage in the same disposition of this case, and his/her salary and fixed attendance allowances, family allowances, children education allowances, etc. shall be reduced and shall not be paid for reimbursement of actual expenses, such as a fixed amount of meal allowance, long leave allowance, compensation for annual leave, job grade allowance, etc. (Article 29 of the Public Officials Remuneration Regulations, Articles 7, 10, 11, 18, 18-3, 18-5, 18-6, 19(5) of the Regulations on Public Officials’ Allowances, etc.), public officials released from his/her position shall not be subject to removal from his/her position, and public officials subject to removal from his/her position shall not be subject to removal from his/her position for the period of promotion from position and minimum training required for promotion (see Articles 14(1)1 and 15 of the Regulations on Allowances, etc., Articles 31 and 32(1)1).

D. In this case, the Defendant issued the instant disposition against the Plaintiff pursuant to Article 73-3(1)2 of the State Public Officials Act. Article 73-3(1)2 of the State Public Officials Act provides that “A person who lacks ability to perform his/her duties or whose performance is extremely poor” means a person who lacks ability to perform his/her duties or whose performance is extremely poor, or whose performance is extremely poor, in light of the provisions of each subparagraph of Article 78(1) of the State Public Officials Act as to grounds for disciplinary action against a public official, the Defendant does not constitute a person who violates orders falling under grounds for disciplinary action, violates duties in the line of duty, or violates duties, or damages his/her body or dignity as a public official (see Supreme Court Decisions 83Nu218, Feb. 26, 1985; 85Nu63, Mar. 11, 1986; 2000, etc.). Thus, the criteria for disciplinary action should be determined in the form of a general and abstract dismissal order.

According to the facts acknowledged earlier, the Plaintiff promoted from the Grade VII to the Grade V official while working in the Ministry of Employment and Labor for more than 30 years from July 2, 1979 to the time of the instant disposition. If there was no ground for disciplinary action at the time of the instant disposition, from around June 23, 2010 to around six months from the Ministry of Employment and Labor, the instant disposition was taken on January 6, 201 following procedures such as the selection of a person subject to the capacity strengthening, the implementation and evaluation of a program for the capacity strengthening, etc. In light of the circumstances and contents of the instant disposition, it is difficult to deem that the instant disposition constitutes a disposition deemed difficult or unnecessary due to its nature, such as prior notice of the disposition or hearing of opinions, or rather, it can be deemed that the instant administrative procedure constitutes a disposition highly necessary in light of the general, abstract, and large nature of the grounds and judgment criteria as seen earlier.

In addition, there is no provision that the disposition of removal such as the disposition of this case requires procedures equivalent to administrative procedures under the State Public Officials Act.

E. As above, the instant disposition is deemed to be a disposition imposing the Plaintiff’s obligation or restricting the Plaintiff’s rights and interests, and it does not constitute a disposition that is deemed difficult or unnecessary to undergo administrative procedures due to its nature, or a disposition that is not subject to procedures corresponding to administrative procedures, and thus, it cannot be deemed a disposition that is excluded from the application of the Administrative Procedures Act. Therefore, the instant disposition ought to undergo prior notification and hearing of opinions in accordance with the Administrative Procedures Act. However, there is no evidence that the Defendant, prior to the instant disposition, provided that it is difficult for the Plaintiff to assign the Plaintiff according to the process of the capacity strengthening program and the result of the instant disposition (the Defendant asserted that prior to the instant disposition, prior to the instant disposition, there is no evidence to acknowledge it, and it is difficult to view that the instant disposition had undergone prior notification and hearing of opinions as prescribed in the Administrative Procedures Act). The instant disposition is unlawful without examining the remainder

3. Conclusion

If so, the plaintiff's claim shall be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the disposition of this case shall be revoked

[Attachment Form 5]

Judges Lee Tae-tae (Presiding Judge)