(영문) 서울행정법원 2010.9.16. 선고 2010구합23149 판결

A. On September 14, 1981, the Plaintiff was appointed as a local administrative assistant, and served in the office B of Cheong-gun, Chungcheongnam-nam Office, and served in the public viewing from November 17, 1988. The Plaintiff began to serve in the Ministry of the Interior and Safety (the name was changed to the current name through the Ministry of the Interior and Safety) from November 18, 1994, and from May 16, 2008, the Ministry of the Interior and Safety served in the division of the local administrative bureau C from the Ministry of the Interior and Safety.

B. On December 23, 2009, the Defendant: (a) against the Plaintiff, on the ground that the Plaintiff committed a misconduct falling under the grounds for disciplinary action under the following, and (b) violated the duty of good faith under Article 56 of the State Public Officials Act; (c) the duty not to leave the workplace under Article 58; and (d) the duty not to maintain dignity under Article 63 of the State Public Officials Act, subject to Article 7

1. Violation of the Act on Special Measures for the Registration, etc. of Ownership Transfer (hereinafter referred to as the "Act on Special Measures for Real Estate");

A. On December 2, 2007, in the process of seeking to complete the registration of ownership transfer in the name of the plaintiff himself or the E clan clan clan member of the plaintiff as a clan member (hereinafter referred to as the "family of this case") in accordance with the Act on Special Measures for the Development of Land D in Yeongnam-gun, the plaintiff violated the Act on Special Measures for the Development of Real Estate by obtaining a written confirmation by false means, such as filing an application for the issuance of a written confirmation, and completing the registration of ownership transfer on the land.

B. On December 2, 2007, the Minister of Land, Infrastructure and Transport prepared and issued a false certificate with respect to the three parcels of land F, G, and H from the guarantor and applied for the issuance of a confirmation accompanied by the false certificate, and tried to complete the registration of ownership transfer on each of the above parcels of land, but failed to complete the registration of ownership transfer due to an objection by the inheritance right holder, etc. of each of the above parcels

2. Civil petition equipments;

The plaintiff's relative transferred the land donated to the clan of this case under the joint name of the plaintiff et al., and the sale and purchase of the forest donated under the condition that the plaintiff et al. make a follow-up removal from the court of large Abanda J as the grounds for registration, and then caused a civil petition, such as receiving a petition in relation to the fact that the J did not bring a follow-up removal.

3. Abuse of authority;

The status of filing an objection against the application for the issuance of a written confirmation to complete the registration of transfer of ownership under the Act on Special Measures to K, Chungcheongnam, which abused its authority by requesting K to inform the Plaintiff of the situation of filing an objection.

4. Unauthorized removal from the workplace without permission on December 18, 2007, and on December 12, 2007, 2007, and 26.

5. From around 2007, in the course of performing private business affairs of the instant clan from around 1,097, the private business affairs were handled during a considerable period of time, such as preparing, copying, etc. documents on a quantity of page A4 (the amount required for the preparation of the documents on an average of 8 hours a day and 22 days a month, based on the average of 22 days a day, for the preparation of the documents for the purpose of preparation of the documents in light of the working speed of the Plaintiff) directly,

C. The Plaintiff filed an appeal against this. Although the appeals review committee belonging to the Defendant did not recognize the grounds for disciplinary action 2 and 3, it recognized that the grounds for disciplinary action 1, 4, and 5 were the grounds for disciplinary action, and only the grounds for disciplinary action 1, 4, and 5 were the grounds for disciplinary action against the Plaintiff (hereinafter referred to as "the grounds for disciplinary action 1, 4, and 5", and the Plaintiff's appeal was dismissed.

[Ground of recognition] Facts without dispute, Gap 1, 12, 15 evidence, Eul 8 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Defect in the disciplinary procedure

On September 5, 2008, the defendant requested the Central Disciplinary Committee to take a heavy disciplinary action against the plaintiff on September 2, 2008, and submitted a written request for disciplinary action (the document attached to the document attached to the document No. 12; hereinafter referred to as "written request for a simplified disciplinary action") which is specified in a comprehensive and formal disciplinary action (the document No. 12 is attached to the document No. 2; hereinafter referred to as "written request for a detailed disciplinary resolution"), but did not send a copy of the written request for a detailed disciplinary decision to the plaintiff, thereby violating Article 7 (7) of the former Decree on Punishment of Public Officials (amended by Presidential Decree No. 22199, Jun. 15, 2010; hereinafter referred to as "former Decree on Punishment of Public Officials"). The plaintiff was unable to receive a copy of written request for a detailed disciplinary action from the defendant and thus was unable to properly defend the plaintiff for any reason.

(2) Non-existence of the instant disciplinary cause

(A) Disciplinary Reason 1: Related to violation of the Special Measures Act.

Even if the Plaintiff committed an act in violation of the Act on Special Measures, such an act is related to privacy irrelevant to the performance of official duties, so it cannot be said that the Plaintiff violated its duty to maintain dignity as a public official.

(B) Disciplinary Reason 4: Related to the removal from the workplace without permission

The Plaintiff, with his superior’s approval, posted a private work related to the management of the instant clan. Therefore, even if the Plaintiff did not go through a normal procedure, such as obtaining prior permission from the head of the relevant institution by using the work status ledger or work status card, the Plaintiff cannot be deemed to have violated the duty of prohibition of leaving the place of work by leaving the place of work without his superior’s permission.

(C) Disciplinary Reason 5: Even if the Plaintiff, while on duty, engaged in the act of preparing documents related to the management of the clan of this case during the working hours, such act shall not be deemed to have violated the duty of good faith, since the Plaintiff neglected the duty as a public official or neglected to do so.

(3) In light of the following circumstances, such as deviation from or abuse of the discretionary authority, the instant disposition was unlawful as it deviates from or abused the scope of the discretionary authority.

(A) The instant disposition violates the principle of proportionality and the principle of equality in comparison with the Defendant’s other audit case.

(B) The defendant had taken into account the fact that the plaintiff had served in good faith for the period of 30 years and received the order of green support, the presidential commendation, and the exemplary public official commendation, the plaintiff violated his mistake, and the plaintiff had suffered significant disadvantage in relation to his status and remuneration for nine months from November 2008 to August 2009, etc., but did not take into account the fact that the plaintiff had been put at a disadvantage due to the defendant's request for a heavy disciplinary decision and removal from position.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the assertion of defect in disciplinary procedure

In full view of the following circumstances, the Defendant violated Article 7(7) of the former Decree on Disciplinary Action against Public Officials by comprehensively taking into account each of the evidence Nos. 2, 12, 15, 27, and 10 of the evidence Nos. 2, and 10 of the evidence Nos. 2, 12, 15, and 27, and the overall purport of the pleadings. Moreover, it is difficult to deem that the Plaintiff was infringed

(A) On September 5, 2008, the Defendant submitted to the 2nd Central Disciplinary Committee a written request for a simple disciplinary resolution, and sent a copy of the written request for a disciplinary resolution to the Plaintiff pursuant to Article 7(7) of the former Public Officials Disciplinary Decree. Thereafter, the Defendant, upon receiving a request from the 2nd Central Disciplinary Committee to adjust the details of the case regarding the request for disciplinary resolution against the Plaintiff in detail and send it as reference materials, was not a document that has been completed, but a written request for a detailed disciplinary resolution, which simply arranged the contents of the case, and submitted it to the 2nd Central Disciplinary Committee.

(B) The request for a simple disciplinary resolution does not specify the date, time, place, method, etc. of the act of misconduct, but contains important contents. The plaintiff, other than the matters stated in the request for a detailed disciplinary resolution from the investigator on July 10, 2008 to July 17, 2008, was asked about the whole of the matters in the request for a detailed disciplinary resolution from the investigator, and responded to him. The investigator separately recorded the question and the summary of his answer, and thus, even if he did not receive a written request for a detailed disciplinary resolution, he could sufficiently be seen as having been able to confirm which request for a disciplinary resolution on the act of misconduct.

(C) The grounds of disciplinary action No. 2, which the second Central Disciplinary Committee made on the grounds of a disciplinary decision against the Plaintiff, include all the matters listed in the request for a simple disciplinary decision. Moreover, the Plaintiff was determined by the second Central Disciplinary Committee to the effect that other misconduct than the grounds of disciplinary action No. 1 through No. 5 among the misconduct described in the written request for a detailed disciplinary decision cannot be subject to the grounds of disciplinary action, which appears to be the result of the Plaintiff

(2) As to the non-existence of the instant disciplinary cause

(A) Disciplinary Reason 1: Related to violation of the Special Measures Act.

① Comprehensively taking account of the purport of evidence No. 2, No. 3, 6, 7, 10, 11, and 12 at the request of the 3rd Gun, the Plaintiff: (a) obtained a false letter of confirmation from the 1st Gun government office around March 7, 197, and obtained a false letter of confirmation from the 1st Gun government office around 7th 1, 207; (b) obtained a new letter of confirmation from the 3rd Gun government office around 7th 1, 207, which was issued by the 1st Gun government office; and (c) obtained a false letter of confirmation from the 3rd Gun government office around February 15, 2008; and (d) obtained a false letter of confirmation from the 1st Gun government office about the 1,000,000 won, which was issued to the 1st 5th Gun government office; and (d) received a fine not exceeding 1,000 won.

② In addition, ‘the dignity of a public official' refers to a person who has no hands-free loss because he takes charge of a position as a trustee of a citizen who is a sovereign, and if a public official's act is judged to be desirable from the perspective of a citizen who is a sovereign, such act constitutes an act that damages a public official's dignity (see Supreme Court Decision 87Nu657, 87Nu658 delivered on December 8, 1987).

As above, the Plaintiff’s act of preparing and delivering a certificate of guarantee containing false contents upon the request of the guarantor does not merely relate to the Plaintiff’s privacy. The Plaintiff’s above act is not desirable from the standpoint of the public, but not from the standpoint of the public, thereby impairing the honor of the public officials and the Ministry of the Interior and Safety to which the Plaintiff belongs. As such, it constitutes grounds for disciplinary action by violating the duty of maintaining dignity under Article 63 of the State Public Officials Act

(B) Disciplinary Reason 4: Related to the removal from the workplace without permission

In full view of the purport of the arguments in Gap evidence 22, Eul evidence 10, 12 and the purport of the whole arguments, the plaintiff left the morning on December 12, 2007 and carried out the duties of the clan of this case, including the application for the issuance of a certified copy of the register, at the registration office of the Daejeon District Court Measures Office, along with the chairperson S of the clan of this case. On December 26, 2007, the plaintiff left the morning and confirmed the status of the clan of this case with S and participated in the clan of this case.

Although the Plaintiff asserted that he/she was his/her superior, there is no evidence to support this. The Plaintiff’s above act constitutes a legitimate ground for disciplinary action, which violates the duty not to leave his/her workplace under Article 58 of the State Public Officials Act.

(C) Disciplinary Reason 5: In full view of the purport of the entire arguments in each statement of evidence Nos. 10 and 14 during working hours, the Plaintiff may recognize the fact that the Plaintiff directly prepared, copied, and kept a total of No. 1,097 pages of document No. 1,097 relating to the instant clan by using a public official’s computer for business purpose from December 2, 2007 to June 2008.

According to the above facts, it is reasonable to view that the plaintiff used a considerable time during the working hours as a public official for the management of the clan of this case. Accordingly, the plaintiff has not neglected to perform a specific duty as a public official, nor neglected to do so.

Even if the above act is deemed to have violated the duty of good faith under Article 56 of the State Public Officials Act, and constitutes justifiable grounds for disciplinary action.

(3) As to the assertion of deviation, abuse, etc. of disciplinary power

In full view of the following circumstances, the instant disposition cannot be deemed unlawful as it goes against the principle of proportionality and the principle of equality, even if the Plaintiff asserts, and it cannot be deemed unlawful as it goes beyond the scope of the disciplinary discretion or violates it.

(A) The Plaintiff’s act subject to criminal punishment in violation of the Act on Special Measures is a senior public official working in the central ministry, who is in the position of enforcing the Act, constitutes a severe disciplinary ground.

(B) It is difficult to recognize that the instant disposition is excessively heavy in comparison with the Defendant’s other audit case’s disposition.

(C) Comprehensively taking account of the overall purport of arguments as to Gap evidence Nos. 1 and 15, it is recognized that the second Central Disciplinary Committee passed a resolution of disciplinary action for suspension for three months, taking into account the following: (a) the plaintiff faithfully performed his/her duties while performing his/her duties for up to 28 years; (b) he/she was at considerable disadvantage in relation to his/her status and remuneration due to the request for a heavy disciplinary decision during nine months from Nov. 1, 2008 to Aug. 209; (c) the violation of the Act on Special Measures was not intended to acquire land by acquiring land personally; and (c) the violation was committed in the course of performing the duties of the clan of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.