[해임처분취소][공2012상,798]
[1] Where there is no disciplinary committee established at the immediately higher agency, whether the person entitled to request a disciplinary decision may request a review to the relevant disciplinary committee (negative)
[2] In a case where the Director of the National Intelligence Service demanded a disciplinary resolution against Gap, who belongs to the High Disciplinary Committee, and decided the disciplinary action against the High Disciplinary Committee as "the lecture", but the resolution requires a review to the High Disciplinary Committee on the ground that it is less than the grounds for disciplinary action, and the High Disciplinary Committee decided the disciplinary action against Gap as "retirement" as a result of a retrial, and thereby ordered Gap to dismiss for violating the duty to maintain dignity of the State Public Officials Act, the case affirming the judgment below that the dismissal disposition following the High Disciplinary Committee's resolution was unlawful
[1] In full view of the purport and contents of Article 82(1) and (2) of the State Public Officials Act, a person with authority to request a disciplinary decision may request a review of a resolution of a superior disciplinary committee established under the jurisdiction of the Prime Minister, the National Assembly, courts, the Constitutional Court, or the Central Personnel Management Agency of an Election Commission. However, with respect to a resolution of a disciplinary committee established in an agency for which a request for review is not recognized under the Act, even if there is no higher authority than the higher authority of the relevant agency, the person with authority to request a disciplinary decision, based on Article 82(2) of the State Public Officials Act, shall not request a review of the relevant disciplinary committee. However, the President, who is the immediate superior authority of the National Intelligence Service, does not establish the disciplinary committee, and the National Intelligence Service Staff Act and the Enforcement Decree of the same Act do not have any provision that the person with authority to request a disciplinary decision on the National Intelligence Service employees, except as otherwise provided in Article 30 of the National Public Officials Act.
[2] In a case where the director of the National Intelligence Service demanded a high-level disciplinary committee to make a disciplinary decision against Gap who belongs to the High-level Disciplinary Committee, and the High-level Disciplinary Committee requested a review to the High-level Disciplinary Committee on the ground that such decision is less than the grounds for disciplinary action, and the High-level Disciplinary Committee decided to dismiss Gap for violating the duty to maintain dignity of the State Public Officials Act, the case affirming the judgment below holding that Article 82(2) of the State Public Officials Act provides that a request for reexamination may be made to the High-level Disciplinary Committee established in the immediate higher agency except for the decision of the Disciplinary Committee established under the jurisdiction of the Prime Minister, and the President, who is the immediate higher agency of the National Intelligence Service, did not have a disciplinary committee established in the immediately higher agency, cannot make a request for reexamination on the resolution of the National Intelligence Service Disciplinary Committee established in the immediately higher agency, and on the ground that it cannot be interpreted that the first higher disciplinary committee established in the immediately higher agency, which made the first first disciplinary decision, requested the National Intelligence Service disciplinary Committee to review and dismiss the decision.
[1] Article 82(1) and (2) of the State Public Officials Act, Article 25(1) and (2) of the Staff of the National Intelligence Service Act, Article 30(1) and (2) of the Enforcement Decree of the Staff of the National Intelligence Service Act / [2] Articles 63, 82(1) and (2) of the State Public Officials Act, Articles 17, 24 subparag. 1 and 3, 25(1) and (2) of the Staff of the National Intelligence Service Act, Article 30(1) and (2) of the Enforcement Decree of the Staff of the National Intelligence Service Act
Plaintiff (Attorney Cho Jong-soo, Counsel for the plaintiff-appellant)
Director of the National Intelligence Service (Law Firm, Attorneys Kim Jong-hwan et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2010Nu40795 decided July 29, 2011
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. Article 82(2) of the State Public Officials Act provides that where the head of an agency that requested a resolution of disciplinary action (hereinafter referred to as “person entitled to request a resolution of disciplinary action”) recognizes that the resolution of disciplinary committee is less than possible, he/she may request a deliberation or reexamination to the disciplinary committee established in the immediately higher agency (with respect to a resolution of the disciplinary committee established under the Prime Minister’s jurisdiction, the disciplinary committee shall be the same as that of the disciplinary committee established under the jurisdiction of the Prime Minister), and Article 82(1) of the State Public Officials Act provides that a resolution of the superior disciplinary committee established in
In light of the purpose and contents of these regulations, a person with authority to request a disciplinary decision, which is established under the jurisdiction of the Prime Minister, and a superior disciplinary committee established under the central personnel management agency of the National Assembly, courts, the Constitutional Court, and the election commission, may request a review to the relevant disciplinary committee. However, with respect to a decision of the disciplinary committee established under an agency which is not recognized as a request for review under the law, if the disciplinary committee is not established under the superior agency of that agency, the person with authority to request a disciplinary decision, based on Article 82 (2) of the State Public Officials Act, cannot
Meanwhile, Article 25(1) and (2) of the Staff of National Intelligence Service Act provides that a disciplinary committee shall be established under the National Intelligence Service to review and decide on disciplinary cases of employees; the composition, type, authority, procedures for review, and other necessary matters; Article 30(1) and (2) of the Enforcement Decree of the National Intelligence Service Act provides that a senior disciplinary committee and a general disciplinary committee shall be established under the National Intelligence Service; and the senior disciplinary committee shall review and decide on disciplinary cases of employees of Grades 1 through 5. However, even if there is no senior disciplinary committee in the National Intelligence Service, the National Intelligence Service Staff Act and the Enforcement Decree of the same Act, which provide for disciplinary proceedings on employees of the National Intelligence Service, do not have a provision that a person entitled to request a disciplinary decision, except as otherwise provided in Article 30 of the Staff of National Intelligence Service Act, shall apply mutatis mutandis to employees of the National Intelligence Service, but with respect to disciplinary action, a person entitled to request a disciplinary decision based on Article 82(2) of the State Public Officials Act, shall not be deemed a person entitled to request a disciplinary decision.
2. The court below found that the plaintiff was appointed to the National Intelligence Service around January 29, 200 and served as the five team members (class V) of the National Security Investigation Bureau from September 23, 2008, and the defendant requested the High Disciplinary Committee on May 8, 2009 to make a disciplinary decision on the ground that the plaintiff committed an act falling under Article 24 subparag. 1 (violation of Acts and subordinate statutes) and subparag. 3 (defence and injury to dignity) of the National Intelligence Service Staff Act. Accordingly, the High Disciplinary Committee held the Disciplinary Committee against the plaintiff on May 29, 2009 and decided that the disciplinary action against the plaintiff was "grad," and the defendant requested a High Disciplinary Committee to review the plaintiff's duty to maintain dignity, and that the High Disciplinary Committee held a disciplinary committee on June 9, 2009 to dismiss the plaintiff and the defendant violated Article 61 (3) of the State Public Officials Act (Article 61).
In addition, the court below determined that Article 82(2) of the State Public Officials Act provides that a request for reexamination may be made to the disciplinary committee established in the immediate higher agency except for the decision of the disciplinary committee established under the jurisdiction of the Prime Minister, and that the President, who is the immediate higher agency of the National Intelligence Service, does not exist. Thus, unless there are special provisions as a result of the disciplinary committee established under the jurisdiction of the Prime Minister, a request for reexamination cannot be made with respect to a decision of the National Intelligence Service disciplinary committee established in the immediately higher agency, unless there is a special provision as to the result of the disciplinary committee established under the jurisdiction of the Prime Minister. Since it is reasonable to interpret the National Intelligence Service's senior disciplinary committee established in the immediately higher agency of the National Intelligence Service, which made the initial decision cannot be construed as the disciplinary committee established in the immediately higher agency, the defendant's request for reexamination on the ground that the first disciplinary committee of the National Intelligence Service, which was only the disciplinary committee established in the first higher
In light of the above legal principles, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the "examination or reexamination" provision under Article 82 (2) of the State Public Officials Act.
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Poe-dae (Presiding Justice)