(영문) 서울행정법원 2012.3.30. 선고 2012구합294 판결

A. On November 7, 2006, the Plaintiff, who works as the representative certified public labor attorney of the branch office of the labor law firm C in Seo-gu, Seoan-gu, Seoan-gu, Seoan-gu, and was employed in the Plaintiff’s office and was paid KRW 720,00,00 of the new employment promotion subsidy under the Employment Insurance Act from February 2, 2007 to January 2008.

B. The Defendant: (a) employed the Plaintiff as an employee on July 2006 and received the new employment promotion subsidy by pretending to be newly employed on November 7, 2006, when the prescribed period of time elapsed; (b) on the ground that such act was in violation of the duty to maintain the dignity under Article 12(1) of the Certified Labor Affairs Consultant Act (hereinafter “the instant disciplinary cause”); and (c) upon the resolution of the Disciplinary Committee on December 15, 2010, the Defendant was subject to one year suspension of qualification for the Plaintiff (hereinafter “previous disposition”).

C. On June 10, 2011, the Plaintiff filed a lawsuit seeking revocation of the previous disposition. The Seoul Administrative Court rendered a judgment revoking the previous disposition on June 10, 201 (2010Guhap46388), and the said judgment became final and conclusive on June 30, 2011, on the ground that the instant disciplinary cause against the Plaintiff is recognized, but the details of the disciplinary action are excessive (2010Guhap46388).

D. On December 28, 2011, the Defendant’s Disciplinary Committee decided to change the contents of the previous disposition against the Plaintiff to “six months of suspension of duties (including the period of suspension of qualification already received)” and accordingly, the Defendant notified the Plaintiff of the said contents (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Gap evidence Nos. 4 through 6, the purport of the whole pleadings

A. The plaintiff's assertion

(1) The intent of the statute of limitations, etc.

(A) Article 20(5) of the Certified Public Labor Attorney Act provides that no disciplinary decision may be requested if three years elapse from the date on which the cause of the disciplinary action occurred. The instant disposition was made three years after the date on which the cause of the instant disciplinary action occurred, and thus illegal.

(B) In order to take the same disciplinary action after the first disciplinary action was revoked, there should be special provisions in the law, such as Article 78-3 of the State Public Officials Act, and there is no provision regarding the second disciplinary action under the Certified Labor Affairs Consultant Act. Thus, insofar as the previous disciplinary action was revoked, the Defendant cannot take another disciplinary action against the Plaintiff on the ground of the instant

(2) In light of all the circumstances, including the fact that the Plaintiff’s abuse of the authority to impose disciplinary discretion has already returned new employment promotion incentives in full and has paid the amount of money for additional collection, and that the amount of money for additional collection has already been faithfully paid by 11 certified labor affairs consultants in Yanananananan District Office, including the Plaintiff, filed a civil petition with the Board of Audit and Inspection, compared with the disciplinary action taken by the pertinent certified labor affairs consultant E with respect to the milk corruption between the labor affairs consultant belonging to the Daejeon Regional Employment and the pertinent newly established labor affairs consultant E, the instant disposition against the Plaintiff was too excessive, and thus, it deviates from or abused the scope

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

(1) Article 20(5) of the Certified Public Labor Attorney Act provides that a disciplinary decision may not be requested after three years have elapsed from the date on which the grounds for the disciplinary action occurred. We examine whether the instant disposition was unlawful after three years have elapsed from the date on which the grounds for the disciplinary action in this case occurred.

(A) If a disposition of removal within the lawful period of time was revoked for the reason of excessive disciplinary action in the administrative litigation, and the disciplinary action again was requested to reduce the kind of disciplinary action, this is not a new request for disciplinary action, but a partial revision of the disciplinary action lawfully demanded (see, e.g., Supreme Court Decision 80Du189, Aug. 19, 1980). (B) It is clear that the previous disciplinary action was lawfully exercised before the period of prescription under the Certified Public Labor Attorney Act expires, and it is reasonable to view that the defendant's demand for a disciplinary action to reduce the types of disciplinary action against the plaintiff's act is partial revision of the previous disciplinary action lawfully demanded. Thus, the plaintiff's assertion that the statute of limitations under Article 20 (5) of the Certified Public Labor Attorney Act applies or the new procedure for disciplinary action is not a defect for the reason that the disciplinary action was revoked (in this case, it is not a defect of the disciplinary action on the ground that the disciplinary action was revoked).

(2) As to the assertion that disciplinary action is impossible

(A) Article 78-3(1) of the State Public Officials Act provides that a person having the authority to take action shall re-request a disciplinary decision or a decision to impose disciplinary surcharge if the appeal review committee or court has made a decision to nullify or revoke disciplinary action, etc. on any of the grounds set forth in the subparagraphs, and Article 78-3(2) of the State Public Officials Act provides that a disciplinary decision, etc. shall be requested to the disciplinary committee within three months after the decision of the appeals review committee or the court has become final and conclusive. The legislative intent of the State Public Officials Act

In a case where a disciplinary action is confirmed or cancelled, it is reasonable to view that the provision for thoroughly exercising the right to discipline is a provision to supplement the defect and to impose the obligation to request a disciplinary decision again on an administrative agency. However, it is reasonable to view that a disciplinary action was limited to not more than 3 months when a request for a disciplinary decision was made so that a discipline accused person may escape from the state of unsound personal instability. (B) In light of the purport of the State Public Officials Act as seen earlier and the legal principles on the discretion of disciplinary actions, in principle, the person having authority over disciplinary action can exercise the right to discipline as a matter of course where a disciplinary action is cancelled on the ground of the defect in disciplinary proceedings or disciplinary decision, and it is reasonable to view that the person having authority over disciplinary action can not exercise the right to discipline after the expiration of the period where there is a special provision on a period for exercising the right to discipline under the Certified Public Labor Attorney Act. Therefore, it is reasonable to view that the defendant cannot exercise the right to discipline again, unless there is any special provision regulating the period for exercising the period of disciplinary action under the Certified Public Labor Attorney Act.

(2) Further, the following circumstances acknowledged from the abuse and elimination of discretionary authority and the legislative intent of the Employment Insurance Act, i.e., new employment promotion subsidy, under the ordinary conditions of the labor market, is paid to an employer who takes measures necessary for the employment insurance premium in order to prevent the structural deterioration of unemployment by facilitating the employment of workers who are difficult to find a job and to facilitate their entry into the labor market. As such, there is a great need for public interest to prevent unfair supply and demand and maintain the soundness of the Fund. The Plaintiff abused the above system by means of pretending that the job seeker is employed by the employment security office for the sole purpose of receiving the subsidy. The Plaintiff is forgotten with the main portion of the labor attorney’s labor affairs consultant who must endeavor to improve the welfare of the worker, and prevented the above delinquency. However, the Plaintiff was subject to suspension for more than two months on the ground that the Plaintiff was erroneous disciplinary action, but the grounds for the disciplinary action are clearly different from that of the instant case, and thus, it is difficult to view the Plaintiff’s regular review and supervision of the labor inspector’s discretionary authority.

Conclusion

The plaintiff's claim is dismissed as without merit, and the costs of lawsuit shall be borne by the plaintiff who has lost.