2. The Plaintiff shall bear the total costs of the lawsuit incurred after filing the appeal.

The reasoning of this Court concerning the Plaintiff’s argument in the instant case is as follows, except for adding the judgment as stipulated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act to the reasoning of the first instance judgment. Therefore, this Court shall accept the Plaintiff’s argument in the instant case

2. Additional Judgment 1 of this Court

A. As to the existence of the reasons for the measure

(1) Summary of the Plaintiff’s assertion

The Defendant removed the instant case from his position on the ground that the Plaintiff’s ability to perform his duties is considerably insufficient. However, the circumstances alleged by the Defendant and the evidence submitted by the Defendant alone are insufficient to recognize the removal from position. Therefore, the instant removal from position was unlawful since

(2) Determination

(A) Article 73-3 (1) 2 of the State Public Officials Act provides for the reason of dismissal from position, "Insluence of performing duties" means the case where the pertinent public official lacks sufficient ability to properly perform his duties with mental and physical means (see Supreme Court Decision 85Nu663 delivered on March 11, 1986, etc., concerning the meaning of reasons for dismissal from office under Article 70 (1) 2 of the former State Public Officials Act (amended by Act No. 4384, May 31, 191, etc.). It does not require that the degree of deficiency of ability to perform duties should be serious.

(B) However, in full view of the facts acknowledged by the first instance court and the evidence Nos. 56, 63-68 (including the number of branch numbers) and the circumstances cited by the first instance court, which can be known through the entire purport of pleadings, as well as the following circumstances, it is determined that the Plaintiff lacks the ability to perform his/her duties, and there exists a reason for the cancellation of his/her position. Accordingly, the Plaintiff’s assertion on this part

1) The fact that the Plaintiff was promoted to an official in charge on March 9, 2006 is recognized. However, as seen below, the evaluation related to the Plaintiff’s ability to perform duties prior to the instant dismissal from position was very negative.

A) The Plaintiff received the work performance rating of 'yang equivalent to the lowest class' in the first half of the year between the second half of the year of 2008 and the second half of the year of 2010, and the second half of the year of 2008 among the 7th and the second half of the year of 2009 among the 7 persons subject to the second half of the year of 2008, and the 6th and the 7th half of the 2010 first half of the 6 persons subject to the second half of the year of 209.

B) Around June 2010, the head of Seoul Regional Employment and Labor Administration conducted a multi-level evaluation of 37 public officials of Grade V, who were promoted to Grade V, from among public officials of Grade V belonging thereto, for at least four years, and the Plaintiff was at 35. In addition, the Seoul Regional Employment and Labor Administration conducted a multi-level evaluation by referring to the opinions of internal and external evaluators, after conducting education for six persons subject to the competence enhancement education from July 12, 2010 to October 8, 2010. The Plaintiff’s priority was 4.

C) The committee for evaluation of field support activities under the Ministry of Employment and Labor (including four internal evaluators and two external evaluators) divided the items into "the result of education on October 27, 2010," "the result of field support activities", "the result of on-site support activities", "the possibility of future improvement", and evaluated the subjects of capacity strengthening education into the grades of "Excellent" (not less than 12 points), "ordinary" (not less than 9 points to 12 points), and "unsatisfactory" (not more than 9 points) and then decided that those subject to evaluation should be given appropriate positions but subject to evaluation of "unsatisfactory" (where it is determined that it is difficult to perform duties), such as removal from position.

The evaluation committee members conducted an evaluation of 18 persons subject to the competence-building education according to the foregoing criteria. The plaintiff was assessed as follows by five persons exceeding a majority of six evaluation committee members, and the average score was also 8.17 points, which was 12 out of the evaluation committee members.

A person shall be appointed.

2) Taking into account the following circumstances, the objectivity and rationality of the negative assessment against the Plaintiff may be sufficiently recognized, even in light of the specific method of various evaluations related to the Plaintiff’s ability to perform his/her duties, whether the assessment subject changes, and whether there is inconsistency between the assessment subject.

3) Prior to the Defendant’s removal from his position, the personnel management authority must select the subject.

In addition, inasmuch as the objectivity and rationality of various evaluations related to the Plaintiff’s ability to perform duties conducted prior to the issuance of the instant removal from position are recognized, even if the instant removal from position was conducted without complying with the evaluation or procedure stipulated in the “Guidelines for Personnel Management Innovation by the Ministry of Employment and Labor,” such circumstance alone does not necessarily mean that there is a defect to the extent to revoke the instant removal from position.

4) The evidence submitted alone is insufficient to recognize that a multi-level evaluation or a capacity strengthening bridge was conducted in an intention to leave the same long-term person as the Plaintiff from the beginning. Although the instant capacity strengthening scheme excluded a public official of Grade 5 who was promoted to Grade 5 without implementing the subject of multi-level evaluation or for whom four years have yet to elapse from the beginning, it can be sufficiently recognized as reasonable, in mind of the possibility of distortion of evaluation results, and such measures are not determined contrary to the principle of equality. Furthermore, if the first instance court determined that the selection of a person subject to competence strengthening education was conducted in accordance with reasonable standards and methods. If the Plaintiff asserts, it is difficult to deem that the Defendant abused or abused discretion in selecting a person subject to competence strengthening education solely on the ground that all subordinate public officials were selected as a person subject to competence strengthening education.

B. As to the deviation and abuse of discretionary power

(1) Summary of the Plaintiff’s assertion

The removal from position of this case is not only loss of equity but also excessive disadvantage suffered by the plaintiff in comparison with the public interest that can be gained through the removal from position. Therefore, the removal from position of this case is illegal as it deviates from and abused discretion.

(2) Determination

(A) Considering the characteristics of the removal from position that belongs to the exercise of personnel authority, it cannot be deemed that the relevant removal from position deviates from or abused prepaid discretion unless there are special circumstances such as violation of relevant statutes or abuse of rights (see Supreme Court Decisions 2006Da30730, Jun. 26, 2008; 2006Du5151, Aug. 25, 2006; 2006Du5151, Aug. 25, 2006).

(B) However, as seen earlier, the instant removal from position is recognized as the grounds for the instant disposition. In addition to the circumstances cited by the first instance court as appropriate and the following circumstances, the instant removal from position cannot be deemed to constitute a case where the discretionary power is exceeded or abused. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

1) The Plaintiff asserts that equity has been lost between the public officials who were finally subject to removal from position among those subject to education for capacity building. However, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendant voluntarily selected only the Plaintiff as those subject to removal from position even though the Plaintiff had the ability to perform duties identical or similar to those of those who were not subject to removal

2) The removal from position is deemed to have a considerable disadvantage to the Plaintiff, who had worked as a long-term public official due to the removal from position of this case. However, in cases where the public official lacks the ability to perform his/her duties in the future, the removal from position is to prevent anticipated occupational interference if the public official continues to perform his/her duties in the future, and the necessity for public interest is sufficiently recognized. On the other hand, the assertion and evidence presented by the Plaintiff alone are insufficient to recognize that the disadvantage

3. Conclusion

The plaintiff's claim shall be dismissed on the ground that it is without merit. The judgment of the court of first instance is justifiable with this conclusion. Therefore, the plaintiff's appeal is dismissed on the ground that it is without merit

Judges Dok-woo

Judges Yoon Jong-dae

All previous arguments were withdrawn. Accordingly, this Court withdraws from this Court’s previous arguments on January 12, 2015, as well as the briefs submitted by the Plaintiff on January 12, 2015 in supplement thereto.

4.13 Only the arguments contained in the briefs shall be examined.