[2] The case holding that a final measure of refusing to appoint a public official of the State administrative agency as a local public official of Grade II or III constitutes a disposition, etc. subject to appeal litigation, which is directly related to the rights of the person who applied for appointment or legal interest

[3] The case holding that in case where the Metropolitan City Mayor grants a position to a public official of the state administrative agencies expected to be promoted to a local public official of Grade II or III to a local public official, the above personnel appointment order does not constitute a mere interim measure, not a final measure rejecting appointment of Grade II or III, but a mere interim measure, and it does not constitute an calculation of the period of filing

[4] The requirements for an administrative agency to cancel and withdraw its undertaking

[5] The case holding that the disposition rejecting the promotion of a public official of Grade-II or higher-ranking local public officials by the Metropolitan City Mayor was unlawful as a deviation from and abuse of discretionary power after promising the promotion of a public official of Grade-II

[2] The case holding that, in case where a public official of the State administrative agency is in a position expected almost clearly to be promoted to the local public official of Grade II in accordance with the examination stage of the personnel committee, and the right to the cooking for the appointment of the local public official of Grade II or III is recognized, a final measure which the Metropolitan City Mayor refuses to appoint according to his/her application by submitting a written statement of transfer is directly related to the rights of the applicant for appointment or legal interests and thus constitutes an appeal suitable disposition, etc.

[3] The case holding that in case where the Metropolitan City Mayor grants a position to a public official of the state administrative agencies expected to be promoted to a local public official of Grade II or III to a local public official, the above personnel appointment order is not a final measure rejecting appointment of Grade II or III but a simple interim measure, and it is not an calculation of the filing period of a lawsuit seeking cancellation of the appointment of Grade II

[4] Even if the undertaking cannot be seen as an independent administrative act, the legal principles on administrative act such as cancellation and cancellation restriction of beneficial administrative act are applied mutatis mutandis. Thus, it shall be limited to the case where, after the undertaking was conducted to cancel or withdraw the undertaking, the fact or state of law is changed to the extent that the undertaking cannot be performed due to force majeure or other reasons, or where the public interest needs to reverse the undertaking is significant enough to justify disadvantage such as infringement of trust and legal stability.

[5] The case holding that it is illegal that the appointment authority's refusal to promote a local public official of Grade II, who is obligated to promote the appointment, is an abuse of discretion, since it is difficult to view that the appointment applicant's need for public interest to withdraw or cancel the appointment plan, is a strong case to justify disadvantages such as loss of the right to obtain benefits, infringement of trust and legal stability, etc. caused by the appointment applicant's transfer to a local government office, etc.

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

Preliminary claim: The defendant's withdrawal disposition against the plaintiff on March 30, 2006 against the plaintiff on March 30, 2006 shall be revoked.

A. On March 3, 2004, the Defendant requested the Personnel Committee of Gwangju Metropolitan City to deliberate on eight candidates for promotion of local Grade-II or III, including the Plaintiff, to appoint the Plaintiff as a national library of Grade-II or III in Gwangju Metropolitan City, who was working as the planning officer of Gwangju Metropolitan City. On March 31, 2004, the said Personnel Committee decided that the Plaintiff be eligible for appointment of Grade-II or III in general.

B. The result of the above resolution became known to the public officials belonging to the defendant and reporters through electronic documents posted in the premises broadcasting and internal communication network of Gwangju Metropolitan City on the same day, and was also reported to the public officials belonging to the defendant and reporters in the daily newspapers such as Gwangju Daily.

C. According to the above resolution, the Plaintiff submitted to the Minister of Government Administration and Home Affairs a written consent to the transfer of local public officials to Gwangju Metropolitan City through the Defendant on the same day. Accordingly, on April 1, 2004, the following day, the Defendant requested that the Minister of Government Administration and Home Affairs issue an order to transfer local public officials of Gwangju Metropolitan City on the grounds that the Plaintiff was decided to the local government of Grade II or III, and at the same time, issued a personnel order to dispatch the Plaintiff, a local public official of Grade II or III, who is expected to be promoted, to the Director General of Gwangju Metropolitan City, to the relevant Secretariat

D. After April 14, 2004, the Prime Minister, acting as the President, ordered the Plaintiff to transfer a local public official of Gwangju Metropolitan City, and the Defendant demanded the replacement of the Secretary General on the grounds that the Plaintiff worked as the Secretary General of Gwangju Vienna on July 2004, when he worked as the Secretary General of Gwangju Vienna on two occasions, the Plaintiff, the Secretary General of Gwangju Vienna on two occasions, was unable to serve as the Secretary General, and rather served as a guide to the promotion of business. On July 20, 2004, the Defendant ordered the Plaintiff to dispatch and return to the Secretary General of Gwangju Vienna on the part of the Plaintiff.

E. After that, the defendant requested the above personnel committee to review the plaintiff's promotion of Grade II II or III, and the above personnel committee decided to withdraw the plan of promotion of the plaintiff on July 31, 2004, and the defendant issued a promotion order to the plaintiff on August 1, 2004 to the head of the Si-Gu folklore Museum who appointed the plaintiff as a local officer on August 9, 2004, while issuing a promotion order to the remaining persons of Grade II or III, other than the plaintiff on August 1, 2004.

F. After August 1, 2004, the Plaintiff was unable to receive a promotional order even after a personnel announcement, and on September 30, 2005, the Plaintiff filed a petition for review to promote himself as a local public official of Grade II or III on the ground of an unfavorable omission against the Plaintiff’s will with the Gwangju Metropolitan City Appeal Committee, but was dismissed on February 20, 2006.

H. Accordingly, on March 8, 2006, the Plaintiff filed a lawsuit against the Defendant to the effect that the Defendant’s failure to promote the Plaintiff to the local class-II or higher-ranking grade in Gwangju Metropolitan City was illegal. Accordingly, on March 30, 2006, the Defendant submitted a written response to the purport that the failure to promote the Plaintiff was justifiable since there were grounds to exclude the Plaintiff from the person subject to promotion, and that the Defendant did not promote the Plaintiff, and the written response for these contents reached the Plaintiff on the same day.

[Grounds for Recognition: Each entry of Gap's Evidence Nos. 1, 2, 3, 6, and Gap's Evidence Nos. 9 through 17 (including each number), the purport of the whole pleadings]

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

The Defendant asserts to the effect that the instant lawsuit is unlawful, since there is no provision that a local public official may apply for promotion, etc. to the person who has authority to appoint local public officials under the Local Public Officials Act which provides for promotion, etc. of local public officials, and it cannot be deemed that there is the right to apply for such promotion, etc. as well as that of cooking.

B. Whether the plaintiff is entitled to apply for promotion

In light of the above, since the Local Public Officials Act does not directly provide for the right to apply for promotion to the Plaintiff, the right to apply for promotion is not recognized under the Act. However, if the Plaintiff passed through most important stages of examination for appointment of public officials and became in a position that can be expected to be appointed as public officials through the last examination stage due to the appointment of many applicants, etc., it shall be deemed that the Plaintiff has the right to apply for the appointment as public officials when conducting such examination fairly and passing through the examination (see Supreme Court Decision 201Du7053, Jun. 11, 2004). The Plaintiff’s right to apply for the appointment of public officials of Grade II or III to the Defendant for the appointment of the Plaintiff as public officials of Grade II or III, who is the public official of Grade II or III, should be considered to be the right to request the appointment of the Plaintiff as public officials of Grade II or III to the extent that the Defendant would not have the right to request the appointment of the Plaintiff as public officials of Grade II or III to the public official of Grade II or III to the appointment.

C. Whether the period for filing a lawsuit is observed

Unless otherwise expressly provided, an administrative disposition against the other party shall be notified in writing to the other party that such disposition was taken. It shall take effect against the other party (see Supreme Court Decision 96Nu9799, Dec. 20, 1996). If the Gwangju Metropolitan City Personnel Committee decided to withdraw the promotion plan of the plaintiff on July 31, 2004 at the request of the defendant's reexamination, and the defendant issued the City Folk Museum head who appointed the plaintiff as a local library on Aug. 9, 2004, the above personnel committee's decision to dismiss the appointment of the plaintiff on Aug. 9, 2004 merely provides that the defendant shall be assigned to the head of the Si Folk Museum, which is a waiting situation, with the assignment of the position of the head of the Si Folk Museum, and it shall be reasonable to consider that the defendant's appointment of the head of the Gu Folk Museum, which is a legitimate one of the parties to the above administrative proceedings, with the explanation that it would be possible to appoint the plaintiff as a local public official of Grade II or duty under the Administrative Procedure Act.

3. Judgment on the merits

A. The parties' assertion

The plaintiff asserts that, despite the decision of the personnel committee of Gwangju Metropolitan City to appoint the plaintiff as a local class-II or higher-ranking official, the defendant made a public announcement of the decision to appoint the plaintiff as a local class-II or higher-ranking official and the defendant made a public announcement of the decision to dispatch the plaintiff to the local class-II or higher-ranking official with the consent to transfer from the plaintiff as a national administrative officer to the local class-II or higher-ranking official, the defendant's disposition is justifiable since the defendant did not promote the plaintiff as a public official of Grade-II or higher-ranking official because the president of Gwangju Vienna Foundation requested replacement on the ground that there is a difference between the plaintiff and the opinion in the process of performing his duties, the plaintiff's cancellation of dispatch of the plaintiff as a local class-II or higher-ranking official under the written reply of this case was illegal.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

Even if the undertaking cannot be regarded as an independent administrative act, the legal principles on administrative act such as cancellation and cancellation restriction of beneficial administrative act shall also be applied mutatis mutandis. In order for the administrative agency to cancel or withdraw the undertaking, it shall be limited to the case where the state of fact or legal condition, which served as the basis of the undertaking, is changed to the extent that it is impossible to perform the undertaking due to force majeure or other reasons, or where the public interest needs to reverse the undertaking, and where it is significant to justify disadvantage such as infringement of trust and stability of legal life, etc.

As seen earlier, the Defendant’s undertaking to promote the Plaintiff as a local public official of Grade II or III. As such, the following circumstances acknowledged by adding the entire purport of pleadings to the statement in public health account, Gap evidence 3-2, Eul evidence 5, and evidence Nos. 7 as to whether the Defendant’s undertaking to promote the Plaintiff as a local public official of Grade II or III, or to the extent that it could not perform the said undertaking after having performed the above undertaking to the Plaintiff, and the need for important public interest to withdraw such undertaking was added to the statement in public health account, i.e., the President of Gwangju Vienna, who requested the Defendant to replace the Plaintiff’s jobs on July 2004, stated that the Plaintiff did not have any unlawful or unreasonable business handling, bad morals, or detrimental to the public official’s dignity. In light of the fact that the Plaintiff’s demand to replace the Plaintiff as a public official of Grade III or the public official of Grade III in public interest to replace the Plaintiff’s official of Grade III or the public official of Grade III, it is difficult to view the Plaintiff’s demand to replace the Plaintiff’s performance hall as an unlawful act.

Thus, the defendant who is liable to appoint the plaintiff as a local class-II or III is illegal as a deviation from or abuse of discretionary authority, since the defendant's disposition of this case which refused to promote the plaintiff as a local class-II or III (it is reasonable to deem that the defendant was ordered to refuse to promote the plaintiff in writing by presenting the reason for refusal to promote the plaintiff. Thus, it is reasonable to consider that the defendant's refusal to promote the plaintiff was made on the delivery date of the above reply).

4. Conclusion

Therefore, the plaintiff's primary claim is reasonable, and it is decided as per Disposition by admitting it.

Judges Cho Jae-sung (Presiding Judge)