(영문) 서울고등법원 2014.7.1. 선고 2013누30911 판결

2. On October 17, 2012, the disposition of revocation of certified labor affairs consultant registration rendered by the Defendant to the Plaintiff is revoked.

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

Purport of claim and appeal

Judgment like the Disposition

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, the reasoning for this Court’s explanation is as follows: (a) and (d) of the judgment of the court of the first instance, except for the modification as set forth below.

2. The remaining parts (whether the disposition of this case is legitimate or not); and

A. The plaintiff's assertion

(2) The illegality of disciplinary proceedings

A) According to Article 20-5(1) of the Enforcement Decree of the Certified Labor Affairs Consultant Act, the Certified Labor Affairs Consultant Disciplinary Committee shall be composed of seven members, including one president. However, the Disciplinary Committee of this case was composed of six members, excluding "one person designated by the chairperson of the National Labor Relations Commission from among Grade III public officials of the National Labor Relations Commission or public officials in general service belonging to the Senior Civil Service."

B) According to Article 21(1)3 of the Administrative Procedures Act with respect to the prior notice of the disposition, where an administrative agency imposes an obligation on the parties or imposes a disposition restricting their rights and interests, the administrative agency shall notify the Plaintiff of the details of the disposition in advance. However, the Defendant did not notify the Plaintiff of the fact that “the disciplinary action under Article 20 of the Certified Public Labor Attorney Act” was taken

C) According to Article 20(1) of the Administrative Procedures Act in violation of the duty to establish and publicly announce the disposition standards, administrative agencies shall determine and publicly announce the necessary disposition standards to the extent possible in light of the nature of the dispositions concerned. The defendant has publicly announced the disposition standards for the disciplinary action of certified public labor attorneys in advance and accordingly did not determine the type of disciplinary action against the plaintiff.

D) As to the presentation of the reason for the disposition

The Defendant violated the duty to present the reason for the disposition stipulated in Article 23(1) of the Administrative Procedures Act, since the Defendant did not present the reason for recognition and determination of the disciplinary charge while rendering the instant disposition to the Plaintiff.

E) The instant disciplinary committee did not examine the Plaintiff as to the facts charged with the core disciplinary action, and did not give the Plaintiff the opportunity to give substantial explanation due to the failure to examine the documents submitted by the Plaintiff.

D. Determination

We examine the legitimacy of the formation of the disciplinary committee of this case.

(1) According to Article 20-2(1) and (2) of the Certified Public Labor Attorney Act, the Certified Public Labor Attorney Disciplinary Committee shall be established in the Ministry of Employment and Labor in order to deliberate and resolve on disciplinary action against certified public labor attorneys. The organization and operation of the Certified Public Labor Attorney Disciplinary Committee and other necessary matters shall be prescribed

According to Article 20-5 (1) and (2) of the Enforcement Decree of the Certified Public Labor Attorney Act (hereinafter referred to as the "Disciplinary Committee") enacted upon the above delegation, the Committee shall be comprised of seven members, including a chairperson. The chairperson of the Disciplinary Committee shall be appointed by the Minister of Employment and Labor from among public officials in general service belonging to the Senior Civil Service in the Ministry of Government Legislation, and the members shall be comprised of ① one person designated by the Minister of Government Legislation from among public officials of Grade III in Grade III in the Ministry of Government Legislation or public officials in general service belonging to the Senior Civil Service; ② one person designated by the chairperson of the National Labor Relations Commission from among public officials of Grade III in the Ministry of Government Legislation or public officials in general service belonging to the Senior Civil Service; ③ two persons designated by the Minister of Employment and Labor from among public officials of Grade III in the Ministry

However, according to the evidence No. 3, the disciplinary committee of this case does not include six members, including the chairperson, and one person designated by the chairperson of the National Labor Relations Commission from among Grade III public officials of the National Labor Relations Commission or public officials in general service belonging to the Senior Civil Service. Thus, the disciplinary committee of this case is defective in its composition.

(2) Judgment on the defendant's assertion

After the closure of the argument of this case, the defendant asserts the following as reference documents, and also examines them.

A) At that time, the defendant asserts that the National Labor Relations Commission did not have "public officials of Grade III or public officials in general service belonging to the Senior Civil Service," and that there was no person who can be designated as members of the Disciplinary Committee, so this case's disposition cannot be deemed unlawful due to such defects.

The defendant's assertion is merely an internal situation of the National Labor Relations Commission or the Ministry of Employment and Labor, and thus, it cannot be deemed legitimate to form a disciplinary committee of not more than seven members and not more than six members in violation of Article 20-5 (1) of the Enforcement Decree of the Certified Labor Affairs Consultant Act. In this case, the defendant should have been appointed by the chairperson of the National Labor Relations Commission as a member of the National Labor Relations Commission by designating one of the following grades within the National Labor Relations Commission or a senior public official in general service belonging to the Senior Civil Service.

Therefore, the disciplinary committee of this case is unlawful in its composition, and ① the disciplinary committee is composed of seven members in total under Article 20-5 (1) and (2) of the Enforcement Decree of the Certified Public Labor Attorney Act, considering the importance of disciplinary action against certified public labor attorneys, it appears that the legislative intent of the disciplinary committee is to be to take fair and reasonable disciplinary action by organizing the disciplinary committee with members representing each department and the direct office related to certified public labor attorneys. ② Under Article 2 (1) of the Certified Public Labor Attorney Act, the scope of duties of certified public labor attorneys is to act on behalf of or on behalf of the relevant agency such as report, application, report, statement, statement, request (including filing of objection, request for examination and request for judgment) and remedy of rights. Accordingly, it is one of the main duties of the Labor Relations Commission to act on behalf of the workers in the Labor Relations Commission for unfair dismissal or unfair labor practices. Accordingly, it is deemed that the participation of the public officials belonging to the National Labor Relations Commission in disciplinary action against certified public labor attorneys is an independent reason for the disposition of this case. The defendant's allegation in this part is without merit.

(3) Sub-determination

Since the disciplinary committee of this case is unlawful in its composition, the disposition of this case conducted according to the resolution of the disciplinary committee of this case is also unlawful. Accordingly, the disposition of this case must be revoked without further review on the remaining issues.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by the court of first instance.