[1] The meaning of "national delegated affairs," which can be performed by the Minister of Education against the Superintendent of the Office of Education

[2] Whether a request for a disciplinary decision by the superintendent of the Office of Education on a teacher who is a state public official belonging to the Office of Education is state delegated affairs (affirmative)

[3] Whether the request for disciplinary action against a private elementary, middle, and high school teacher under Article 54 (3) of the former Private School Act is a state delegated affairs (affirmative)

[4] The subject of and the standard for determining whether the head of a local government is obligated to manage and execute specific state delegated affairs pursuant to the provisions of the relevant statute, among the purpose of the order to perform duties, the objection litigation system, and the requirements for the order to perform duties

[5] In a case where a teacher’s expression of opinion collectively constitutes a “collective act for any day other than public service” prohibited under Article 66(1) of the State Public Officials Act, and where a teacher of a private school participates in the “collective act for any day other than public service” prohibited under Article 66(1) of the State Public Officials Act, whether it constitutes grounds for disciplinary action (affirmative)

[6] Whether failure of the head of a local government to perform state delegated affairs under his/her duty constitutes “any clearly neglecting the management and enforcement of state delegated affairs” under Article 170(1) of the Local Autonomy Act (affirmative in principle) and the exception thereof

[1] According to Article 3 of the Local Education Autonomy Act and Article 170(1) of the Local Autonomy Act, affairs subject to an order of performance of duties that the Minister of Education may issue to the Superintendent of the Office of Education are “management and execution of national delegated affairs.” In addition to the language and text of the provision, considering that the purpose of the duty performance order system, namely, the purpose of enforcing the unification of state affairs delegated to an institution such as the Superintendent of an Office of Education or the head of a local government, it is reasonable to deem that state delegated affairs refer to state affairs delegated

[2] In light of the nature of disciplinary affairs of public educational officials, and the form and content of the regulations of public educational officials’ laws and regulations concerning the delegation of authority, disciplinary action against teachers who are public officials is the State’s affairs, and it is reasonable to deem that a request for disciplinary action, which is a part of the request, also constitutes State affairs. Therefore, a request for disciplinary action against teachers who are public officials belonging to the Office

[3] The service or disciplinary action of a private school teacher should be uniformly and uniformly regulated as well as a national or public school teacher. Considering this, the authority to request disciplinary action against a private school teacher under Article 54(3) of the former Private School Act (amended by Act No. 11216, Jan. 26, 2012) as to the disciplinary action against a private school teacher is to maintain the quality and service attitude of the above private school teacher at a certain level as that of a national or public school teacher, and shall be deemed to be delegated to the superintendent of the competent office of education.

[4] The purport of an order to perform duties and an objection to such order is to ensure the legitimacy and effectiveness of performing duties by rationally resolving disputes between the two agencies related to the management and execution of national delegated duties through a trial of the Supreme Court in order to ensure the effectiveness of performing duties, in a case where the head of a local government does not differently have the opinion of the competent Minister in view of the recognition of facts pertaining to the pertinent state delegated duties, or the interpretation and application of statutes, taking into account the status, authority, mutual relations, etc. between the heads of the pertinent local government in the management and performance of duties. In order to ensure the effectiveness of performing duties, the competent Minister grants the head of the relevant local government the authority to issue an order to perform duties and take follow-up measures following the failure to perform duties in order to ensure the effectiveness of performing duties, while allowing the head of the relevant local government to file a lawsuit of objection against the order to perform duties. Accordingly, the subject of determination of whether “the head of a local government has the obligation to manage and execute specific state delegated duties” among the requirements for performing duties is not reasonable in terms of language and text.

[5] In a case where a public official’s expression of opinion collectively constitutes a specific political activity prohibited against a public official under the State Public Officials Act or other individual laws, such as the Public Official Election Act, or where it is deemed that such act constitutes a direct danger that may infringe on the political impartiality of public official employees, such as an act that directly expresses his support or opposition to a specific political party or political force, etc., such act constitutes a group of teachers with respect to the duties of a public official, which goes beyond the principal portion as a teacher who is a public official, and is detrimental to the public interest or detrimental to the essence of public duties, and thus, it is reasonable to deem that such act constitutes a group of teachers with respect to the duties of a public official, which is prohibited under Article 6(1) of the State Public Officials Act, and Article 55 of the former Private School Act (amended by Act No. 11216, Jan. 26, 2012; hereinafter the same) and Article 66(1)6 of the former Private School Act (hereinafter the same).

[6] According to Article 170(1) of the Local Autonomy Act, where the head of a local government clearly neglects the management and execution of state delegated affairs, the competent Minister may order the head of the relevant local government to perform matters to be performed. Here, the requirement is premised on the establishment of an obligation to manage and execute state delegated affairs. Since the head of a local government is a principle to perform state delegated affairs, the head of the relevant local government shall be construed as fulfilling the obligation when the head of the local government fails to perform the obligation without any special circumstance. Here, special circumstance here means a de facto disability, such as the lack of financial capacity or condition of the local government, and lack of human resources, and the circumstance that the head of the relevant local government does not take different opinions from the competent Minister on whether he/she is obligated to manage and execute the state delegated affairs. This is because this lawsuit against the order to perform duties is established on the premise that the head of the relevant local government is entitled to file a lawsuit under the premise of such opinion.

[1] Article 3 of the Local Education Autonomy Act, Article 170(1) of the Local Autonomy Act / [2] Articles 2(5) (see current Article 2(6) and 33(1) of the former Public Educational Officials Act (Amended by Act No. 11066, Sep. 30, 201); Article 3(5)3 of the former Decree on the Appointment of Educational Officials (Amended by Presidential Decree No. 23243, Oct. 25, 2011); Article 4, 52, 53, 53-2, 54(4), 61, 62, and 64 of the former Public Educational Officials Act / [3] Article 16(1) of the former Public Educational Officials Act (Amended by Act No. 11216, Jan. 26, 2012; Presidential Decree No. 1861, Jul. 16, 2017>

[5] Supreme Court en banc Decision 2010Do6388 Decided April 19, 2012 (Gong2012Sang, 912)

Gyeonggi-do Superintendent of an Office of Education (Attorney Park Jong-woo et al., Counsel for the plaintiff-appellant)

The Minister of Education (Law Firm Barun, Attorneys Jeong Jin-jin et al., Counsel for the plaintiff-appellant)

January 10, 2013

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

The defendant's order to perform duties against the plaintiff on November 3, 2009 shall be revoked.

1. Details and summary of the instant order to perform the duties

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of evidence Nos. 1, 2-1, 2-2, 4-2, 3, 7, 11, 12, and 14-1.

A. On June 9, 2009, the Korean Teachers’ Union (hereinafter “former Teachers’ Union”) held a central enforcement committee at which the officers and branch officers of the headquarters and the head of the branch office, etc. are present and announced through the press, etc., and passed a resolution to the effect that “the teachers who participated in the Assembly and participated in the Assembly and agreed to publish the list of teachers in the former Teachers’s newsletter.”

B. Accordingly, from June 10, 2009 to June 17, 2009, the officers of the Jeon school’s headquarters and the head of a branch office, etc. were prepared with the notice from the Assembly and Demonstration, etc., and distributed it to the Jeon school’s respective branches, sub-branches, and sub-branches. Each 16 branches nationwide belonging to the Jeon school group were organized with a list of teachers participating in the Assembly and Demonstration and reported to the Jeon school’s headquarters

C. On June 18, 2009, 20 executives of the headquarters, such as the former Twit-dong Chairman, etc., announced the assembly report under the name of 16,171 on the press conference prior to the former Jung-gu Seoul Jung-gu’s territory, and posted it on the former Twit-dong website (www.eduhopet) and posted it on June 22, 2009, and posted a list of 17,189 teachers who participated in the assembly report, including teachers who signed the “opport” or expressed their intent to participate in the assembly (hereinafter “first Declaration”).

D. On June 26, 2009, the Defendant accused the full-time officers of the headquarters such as the president of the Jeon school assistant who led the Assembly and Demonstration on June 26, 2009 and City/Do branch officers, and requested the superintendent of education such as the Plaintiff to proceed with the heavy disciplinary procedure against them.

E. 8 teachers of the Gyeonggi-do Office of Education in charge of the Plaintiff’s disciplinary action, including Nonparty 1 (Chairperson), Nonparty 2 (Vice Vice-Chairperson), Nonparty 3 (Director of Planning and Management Office), Nonparty 4 (Director of Policy Planning Office), Nonparty 6 (Director of Publicity Office), Nonparty 7 (Director of Health Promotion Office), Nonparty 8 (Chief of Health Promotion Office), who are the full-time officer of the former school branch, Nonparty 9 (Chapter 10), Nonparty 11 (Director of Organization), Nonparty 12 (Chief of Site Office), Nonparty 13 (Chief of Site Office), and Nonparty 14 (Director of Policy Office), who are the full-time officer of the former school branch (hereinafter “the teachers of this case”). Of all, Nonparty 5 and teachers other than Nonparty 8, who are private middle and high school teachers, and teachers of elementary, middle and high schools, who are state public officials, are teachers of elementary, middle and high schools (hereinafter “the teachers of this case”).

F. On July 19, 2009, the officers of the Jeon school headquarters and its branch were against the Defendant’s criminal charge against the teachers who participated in the First Assembly and Demonstration, and against the heavy disciplinary measure, and announced the assembly and demonstration under the name of 28,000 teachers (hereinafter “the Second Assembly”) and held the assembly and demonstration under the name of 28,000 teachers (hereinafter “the Assembly and Demonstration”) (hereinafter “the Assembly and Demonstration”). From among the teachers of this case, 10 teachers except Nonparty 8, Nonparty 12, 13, and Nonparty 14 participated in the Second Assembly and Demonstration.

G. Meanwhile, among the teachers of this case, the prosecutor belonging to the Seoul Central District Public Prosecutor's Office was indicted against the public prosecutor belonging to the Suwon District Public Prosecutor's Office on the violation of the duty of prohibition of collective action for activities other than official duties under the State Public Officials Act with respect to the First Declaration against the six non-party 9, etc. belonging to the Suwon District Public Prosecutor's Office. The chief prosecutor of each public prosecutor's office sent the notice of crime results and written indictment to the Gyeonggi-do Public Officials' Office according to Article 6 (3) of the Decree on Disciplinary Action against Public Officials around October 2009.

H. On November 1, 2009, the Plaintiff stated that “The First Declaration should, in principle, be respected as the fundamental value of democracy such as freedom of expression, and thus, the demand for disciplinary resolution will be suspended until the final judgment of the judiciary was made on whether it violated the duty of prohibition of collective action.”

I. Accordingly, on November 3, 2009, the Defendant ordered the instant teachers to perform the duty of requiring a disciplinary resolution within one month from the time when the Plaintiff was notified of the result of a public official’s disciplinary action pursuant to Article 6(4) of the Decree on Disciplinary Action against Public Educational Officials, pursuant to Article 170(1) of the Local Autonomy Act.

2. The defense of this safety and the determination thereof

A. Circumstances after the instant lawsuit was filed

The following facts may be acknowledged as either in dispute between the parties or in combination with the purpose of the entire pleadings in each entry in the evidence Nos. 5 through 10.

(1) On June 14, 201, the Plaintiff demanded a disciplinary decision with respect to Nonparty 1 and Nonparty 2, who was sentenced to a fine in the first instance trial on planning and leading to the instant teachers, among the teachers in the instant case. As to the eight persons who were sentenced to a fine due to the lack of participation, the Plaintiff took a warning measure, and was sentenced to a fine due to the absence of the degree of participation, and was not required to take a disciplinary decision with respect to the four persons for whom the sentence of a fine was suspended.

(2) On this basis, the Defendant issued a corrective order to the effect that the Plaintiff’s request for a disciplinary decision, warning, etc. is unlawful because it deviates from and abused the authority to exercise disciplinary discretion, and that the Defendant would request a disciplinary decision on all of the instant teachers until June 21, 201, based on Article 169(1) of the Local Autonomy Act, etc. on June 16, 2011.

(3) On July 4, 2011, based on Article 169(1) of the Local Autonomy Act, the Plaintiff submitted a written opinion to the Defendant and did not comply with the above corrective order within the given time limit, the Defendant revoked all of the Plaintiff’s measures, such as requesting or warning the above disciplinary decision, and the notified Plaintiff notified Nonparty 1 and other teachers of the purport of the notification.

(4) Furthermore, on July 11, 2011, the Defendant issued an order to perform the second duties in the instant case to the effect that: (a) the instant teachers participated in the second assembly and demonstration; (b) the instant ten persons among the instant teachers were still subject to the statute of limitations; and (c) the Plaintiff ordered the Plaintiff to perform the second duties to the effect that “Before the statute of limitations expires (as of July 18, 201), the instant teachers were subject to the second assembly and demonstration.”

(5) A disciplinary action against the instant teachers on the ground of the participation of the First Assembly and Demonstration on June 18, 2009, or a disciplinary action against part of the instant teachers on the ground of the participation of the Second Assembly and Demonstration on July 19, 2009 was taken pursuant to the relevant statutes, such as Article 83-2 of the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter the same) and other relevant statutes, the disciplinary action against the instant teachers was completed two years after the date on which the relevant disciplinary ground occurred, and thus, the disciplinary action against the instant teachers cannot be demanded.

B. Claim on the extinction of duty to perform the duty of this case

First, we examine the defendant's assertion that "for two of the teachers of this case, the plaintiff requested a disciplinary resolution and followed the order to perform the duties of this case, and for the rest teachers, the period of prescription has already expired and the duty to comply with the order to perform the duties of this case has ceased to exist."

According to Article 3 of the Local Education Autonomy Act and Article 170 (2) of the Local Autonomy Act, if the Superintendent of an Office of Education fails to comply with an order issued by the Superintendent of an Office of Education to perform duties to the Superintendent of an Office of Education within a specified period, the Minister of Education may vicariously execute the order or take necessary administrative and

According to the facts acknowledged earlier, the Plaintiff partially performed the instant order, and the remaining order for the performance of duties became impossible due to the completion of the statute of limitations, and the obligation to comply with the order was extinguished. However, the Plaintiff still demanded a resolution on disciplinary action against Nonparty 1 and Nonparty 2 from among the instant teachers only after the expiration date of the statute of limitations on December 2, 2009, which is the deadline for the instant order for the performance of duties, was far more than December 2, 2009, and only on June 14, 2011, the expiration date of the statute of limitations on the instant teachers. Thus, it is difficult to deem that the instant order was performed in light of the time and circumstance, and the Minister of Education has the effect of taking administrative and financial measures against the relevant local government on the ground that the Plaintiff did not comply with the instant order for the performance of duties on the ground that the said statute still remains effective, regardless of the extinguishment of the duty to comply with the instant order, the Plaintiff has the interest in filing a lawsuit seeking the revocation of the instant order.

Therefore, we cannot accept the defendant's above assertion.

C. The assertion on the abolition and extinguishment of the instant order of performance of duties due to the second order of performance of duties

Next, the defendant's assertion that "as the defendant has abolished or changed the duty performance order of this case according to the second duty performance order, it is not profitable to dispute this order."

According to the facts acknowledged above, the second order of performance of duties is a disciplinary measure against the ten teachers who participated in the second order upon the completion of the prescription of the disciplinary measure upon the participation of the teachers in the first order of performance of duties. The reason behind the second order is that the disciplinary measure remains. However, in light of the circumstances, purpose, contents, etc. of the second order, it cannot be deemed that the second order of performance of duties was conducted continuously under the same purpose or intent as the first one. It appears that the second order of performance of duties was a collective act different from that of the first one. Therefore, it is different between the reason for disciplinary measure ordering a request for disciplinary action in the second order of performance of duties and the reason for disciplinary measure ordering a request for disciplinary action in the second order of performance of duties performance of duties. In addition, it cannot be deemed that the second order of performance of duties was abolished or modified as the second order of performance of duties. In addition, as seen earlier, the Plaintiff failed to perform the second order of performance of duties before the second order of performance of duties.

Therefore, we cannot accept this part of the defendant's assertion.

3. As to the assertion on the merits and the judgment thereon

(a) Affairs subject to an order to perform duties;

(1) According to Article 3 of the Local Education Autonomy Act and Article 170(1) of the Local Autonomy Act, affairs subject to orders given by the Minister of Education to perform duties against the Superintendent of the Office of Education are “management and enforcement of national delegated affairs.” In addition to the language and text of the provision, considering that the purpose of the duty performance order system, namely, the purpose of enforcing the uniform implementation of state affairs delegated to an institution such as the Superintendent of an Office of Education or the head of a local government, etc., it is reasonable to deem that state delegated affairs refer to state affairs

(2) On the premise of such interpretation, the Plaintiff’s assertion that “the demand for a resolution of disciplinary action against the instant teachers is only autonomous affairs concerning the education and arts of local governments, and do not constitute the affairs subject to the order of performance of duties, since it cannot be seen as the state affairs delegated by local governments.” The instant order of performance of duties is unlawful.

(A) First, with respect to the part concerning teachers who are state public officials among the instant order of performance of duties, it is deemed that the Superintendent of the Office of Education has the nature of the affairs concerning a request for disciplinary decision for teachers who are state public officials belonging to

The purpose of the former Public Educational Officials Act (amended by Act No. 11066, Sep. 30, 201; hereinafter the same) is to provide for special cases concerning qualifications, appointment, remuneration, and guarantee of status, etc. of public educational officials who serve the whole nation through education (Article 1). In light of the legislative purpose and specific provisions of the Public Educational Officials Act, the disciplinary affairs of public educational officials regulated by the Act on Public Educational Officials are deemed to be affairs of the nature that need to be handled uniformly for the benefit of the whole nation, along with those of public educational officials in relation to qualifications, appointment methods and procedures, remuneration, training, and guarantee of status.

In addition, according to Article 33(1) of the former Public Educational Officials Act, the Minister of Education may delegate part of his/her right to appoint to the head of an educational administrative agency, etc., as prescribed by Presidential Decree, and Article 3(5)3 of the former Public Educational Officials Appointment Decree (amended by Presidential Decree No. 23243, Oct. 25, 201; hereinafter the same shall apply) upon delegation stipulates that the Minister of Education delegates his/her right to appoint teachers to the relevant superintendent of education. According to Article 2(5) of the former Public Educational Officials Act, “appoint” includes not only new appointment, promotion, promotion, and promotion but also suspension, dismissal, dismissal, and removal.

In light of the nature of disciplinary affairs of public educational officials, and the form and content of the regulations of the Public Educational Officials Act concerning the delegation of authority, it is reasonable to deem that disciplinary action against a teacher who is a State public official is the State’s affairs, and a request for disciplinary action, which is a part thereof, also constitutes State affairs. Therefore, a request for disciplinary action against a teacher who is a State public official of the Office

Meanwhile, Articles 20 subparag. 16 and 27 of the Local Education Autonomy Act provide that the Superintendent of an Office of Education shall take charge of matters concerning the personnel management of state public officials under his/her jurisdiction concerning education and arts, and deal with matters concerning the appointment and disciplinary action of public officials under his/her jurisdiction. However, as seen earlier, it is merely the purport of verifying the state affairs delegated by the Superintendent of an Office of Education pursuant to the Public Educational Officials Act and subordinate statutes as the head of his/her jurisdiction. Thus, the relevant affairs

(B) Next, with respect to the part on Nonparty 5 and Nonparty 8, who are private middle and high school teachers among the instant order to perform the duties, we examine the nature of the request for disciplinary action against the person who has the authority to appoint and dismiss the teachers of private schools under the jurisdiction of the Office of Education.

Article 1 of the former Private School Act (amended by Act No. 11216, Jan. 26, 2012; hereinafter the same shall apply) was established with the aim of promoting the sound development of private schools by securing the independence and promoting the public nature, in view of the unique characteristics of private schools (Article 1). The former Private School Act shall appoint and dismiss school teachers of various levels of schools while ensuring the independence of private schools in terms of appointment, dismissal, service, disciplinary action, etc. (hereinafter referred to as "school foundation, etc."), but shall appoint and dismiss school foundations or private school managers of various levels of schools after taking certain procedures (Articles 52, 53, and 53-2); (2) The provisions concerning the service of national and public school teachers of the relevant private school shall apply mutatis mutandis (Article 55); (3) Where teachers violate or neglect their duties; and (4) where teachers fall under grounds for disciplinary action, such as the establishment and supervision of the relevant school foundation, etc. and the relevant industrial college, etc. shall be subject to guidance and supervision by the Minister of Education.

There is no substantial difference between a private school and a national or public school to take charge of the daily interest of public education. Accordingly, the education-related Acts and subordinate statutes shall be classified into a national or public school and a private school (Article 11 of the Framework Act on Education, Article 3 of the Elementary and Secondary Education, Article 3 of the Higher Education Act, Article 3 of the Higher Education Act, etc.), and the standards for establishing the facilities and equipment of schools shall be equally regulated without distinction (Article 4(1) of the Elementary and Secondary Education Act, Article 4(1) of the Higher Education Act, and Articles 52 and 55(1) of the former Private School Act shall also be regulated as a matter of principle in the case of a national or public school teacher qualification or service (Articles 52 and 55(1) of the former Private School Act). Considering this, the authority of the superintendent of education as to disciplinary action against a private school teacher delegated to the elementary, middle, and high school shall be deemed to be a balanced measure against a national or public school teacher as a disciplinary action against the above school teacher.

(3) Sub-determination

Thus, since the order of this case's performance of duties is related to the state delegated affairs, it constitutes affairs subject to the duty performance order under Article 170 (1) of the Local Autonomy Act, this part of the plaintiff's assertion is without merit.

B. Existence of a request for disciplinary decision or request for disciplinary action against the instant teachers

(1) Summary of the parties’ assertion

The Defendant asserts to the effect that “the instant teachers were in violation of the duty of prohibition of collective action under the State Public Officials Act by leading the teachers to participate in the First Declaration, etc., and the Plaintiff was notified by the investigative agency of the result of the first Declaration’s criminal disposition. As such, the Plaintiff is obligated to demand a disciplinary resolution to the competent disciplinary committee within one month from the time of receiving the notice without delay or without delay pursuant to the relevant public educational officials’ laws and regulations.”

The Plaintiff asserted that “the First Declaration was an act within the justifiable scope of freedom of expression guaranteed by the Constitution.” Even if the First Declaration was deemed unlawful in the final judgment of the judiciary, it is reasonable to suspend a request for disciplinary action on the grounds that it is not clear whether the content of the charge constitutes grounds for disciplinary action at the time the Plaintiff was notified of the result of the first Declaration’s public official’s crime disposition. Therefore, the Plaintiff’s order of performance of duties in this case was unlawful.”

(2) Determination

(A) Order of performance of duties and the purport of the objection lawsuit system

According to Article 170 of the Local Education Autonomy Act that applies mutatis mutandis to the operation, etc. of the "agency in charge of the affairs concerning education, arts and science of local governments" under Article 3 of the Local Education Autonomy Act, if the head of a local government clearly neglects the management and execution of the State delegated affairs, etc. under the provisions of Acts and subordinate statutes, the competent Minister may order the implementation thereof in writing with a period fixed by the competent Minister (paragraph (1)), the competent Minister may, if the head of the local government fails to comply with the implementation order within the said period, execute the vicarious execution or take necessary administrative and financial measures at the expense of the local government (paragraph (2)), and if the head of the local government objects to the implementation order, he/she may file a lawsuit

In this context, the state affairs delegated by the head of a local government is the state affairs delegated by the head of a local government as seen earlier. Therefore, when the head of a local government manages and executes the state affairs delegated by an agency, his/her status may be deemed not to be an agency of the relevant local government, but an administrative agency of the State. The competent Minister of the State, as a delegated agency, has the authority to guide and supervise the state affairs delegated and managed by the head of a local government pursuant to Article 6(1) of the Government Organization Act or Article 167(1) of the Local Autonomy Act. However, the head of a local government is an independent agency elected as an executive agency of a local government, which is separate administrative body from the State under administrative organization, by election of residents, and according to Article 2 subparag. 1 of the Regulations on Delegation and Entrustment of Administrative Authority, the delegated state affairs are in the status under which

The purport of an order to perform duties and an objection to such order is to ensure the legitimacy and effectiveness of the execution of duties by reasonably resolving disputes between the two agencies related to the management and execution of national delegated duties through the Supreme Court's judgment, in order to ensure the effectiveness of the performance of duties, by allowing the head of the relevant local government to file a lawsuit of objection against the order to perform duties, and thereby ensuring the legitimacy and effectiveness of the performance of such duties by reasonably resolving the disputes between the two agencies related to the management and execution of national delegated duties through the Supreme Court's judgment, in order to ensure the legitimacy and effectiveness of the execution of such duties, in cases where the head of the relevant local government fails to recognize facts pertaining to the relevant State delegated duties or to manage and execute the relevant duties, unlike the competent Minister in the interpretation and application

Therefore, the subject of determination as to whether “the head of a local government has the obligation to manage and execute specific state affairs pursuant to the statutory provisions” among the requirements for an order to perform duties is not whether the legal obligation exists or whether the head of a local government has reasonable grounds for not managing and executing such affairs. The existence of statutory obligation is, in principle, determined by interpreting and applying the relevant statutes in fact at the time of the order to perform duties, but may also be considered in the circumstances after the order to perform duties.

(B) Whether the participation of the teachers in the First Declaration constitutes grounds for disciplinary action

In a case where a public official’s expression of opinion collectively constitutes a specific political activity prohibited against a public official under the State Public Officials Act or other individual Acts, such as the Public Official Election Act, or where it is deemed that an act clearly revealing a specific political party or political force’s support or opposition, etc., which may cause a direct danger that may infringe on the political impartiality of public official, such as an act that directly expresses a specific political character or a political party’s opposition, it shall be deemed that the act goes beyond the principal portion as a teacher who is a public official, and constitutes a violation against the public interest, and thus, it shall be deemed that the act constitutes a “collective act for any purpose other than public duties,” as prohibited under Article 66(1) of the State Public Officials Act, and thus, constitutes a “collective act for any purpose other than public duties” (see, e.g., Supreme Court en banc Decision 2010Do6388, Apr. 19

In addition, the provision on the service of private school teachers is applied mutatis mutandis (Article 55 of the former Private School Act); and the case where private school teachers violate their official duties constitutes grounds for disciplinary action (Article 61(1) of the former Private School Act). If a private school teacher participates in “collective action for activities other than official duties” prohibited under Article 66(1) of the State Public Officials Act, it constitutes grounds for disciplinary action.

In light of the purport of the Assembly and Demonstration Act No. 11 and No. 12, Nonparty 1 was the chairman of the Assembly and Demonstration Act, and Nonparty 2 was the chairman of the Assembly and Demonstration Act, and Nonparty 3 was the chief of the Planning and Management Office, and Nonparty 7 was the chief of the Ministry of Health and Welfare, and Nonparty 9 was the chief of the Ministry of Health and Welfare. Nonparty 10 was the chief of the Ministry of Health and Welfare. Nonparty 12 was the chief head of the Ministry of Health and Welfare, and Nonparty 13 was the chief of the Ministry of Health and Welfare, who was on the 10th anniversary of the Ministry’s demand for the public interest and development of the Assembly and Demonstration Act. Nonparty 2 was on the 10th National Assembly and Demonstration’s demand for the public interest and development of the Assembly and Demonstration Act. Nonparty 14 was on the 1st National Assembly and Demonstration’s demand for the public interest and development of the Assembly and Demonstration’s 10th National Assembly and Demonstration’s 2009.

In full view of the fact that the establishment of a political party and its election campaign are prohibited in the case of the first assembly and demonstration of the Assembly and the first assembly and demonstration of the Assembly and its purpose, its contents, the method of promotion, and its impact, and the establishment of a political party and its election campaign are prohibited (Article 22(1)2 of the Political Parties Act and Article 60(1)4 of the Public Official Election Act). In short, the act of the teachers in this case committed in collusion with other former teachers in relation to the first assembly and demonstration of the Assembly and demonstration of the intent or critical influence to prevent the government’s decision-making and enforcement of major policies with a clear political purpose or intent, and thus, the act of clarifying the public official’s political neutrality, public trust, and the degree of direct risk of infringement, is an act of clarifying the political character or spawnity of the government to the extent that it infringes on the public official’s political neutrality, or the public’s trust or direct risk of infringement.

Therefore, the First Declaration is a collective act that goes beyond the present portion as a teacher who is a public official and is detrimental to the public interest, and thus, constitutes a public official’s duty of care. Thus, it is reasonable to deem that the act constitutes a “collective act for the purpose of an act other than public service” prohibited under Article 66(1) of the State Public Officials Act, and this is also applicable to a private school teacher subject to Article 55 of the former Private School Act. Ultimately, the act of the teacher in this case’s participation in the Declaration constitutes disciplinary cause as stipulated under Article 78(1)1 of the State Public Officials Act.

(C) Whether the Plaintiff is legally obligated to demand a resolution on disciplinary action against the instant teachers

According to Article 51 (1) of the former Public Educational Officials Act, when the head of an educational administrative agency recognizes that a public educational official under his/her jurisdiction falls under any disciplinary cause such as the subparagraphs of Article 78 (1) of the State Public Officials Act, he/she shall, without delay, request the disciplinary committee having jurisdiction over the relevant disciplinary case to make a disciplinary resolution. In addition, according to Article 6 (4) of the former Public Educational Officials Disciplinary Decree, which is the Presidential Decree prepared pursuant to the delegation of Article 50 (2) of the former Public Educational Officials Act, the head of an educational administrative agency shall, when he/she is notified by the head of another administrative agency of a disciplinary cause due to the notice

In addition, according to Articles 4(1) and 54(3) of the former Private School Act, when the teachers of private elementary schools, middle schools, and high schools belonging to the Office of Education in charge fall under the grounds for disciplinary action, the superintendent of education may request the person who is authorized to appoint and dismiss the relevant teachers to take disciplinary action.

According to the above provision, the head of an educational administrative agency has discretion to determine whether the specific act of a public educational official under his/her jurisdiction constitutes grounds for disciplinary action under Article 78(1) of the State Public Officials Act, and even if the head of another administrative agency is notified of the grounds for disciplinary action by notification of the result of the offense by public officials, a disciplinary decision may not be requested if there is a considerable reason, and there is discretion to determine

However, in light of the legal principles as seen earlier, the instant lawsuit brought about the conflict between the Plaintiff and the Defendant, who was delegated with the pertinent affairs and the supervisory agency, as to whether the leading act of the teachers or the teachers of private middle and high schools who are state public officials constitutes grounds for disciplinary action, and whether there are reasonable grounds for not requiring disciplinary action despite the notification of grounds for disciplinary action, and in light of the legal principles as seen earlier, regarding the order to perform duties and the purport of the lawsuit system against such order, etc., it is reasonable to determine whether the subject of deliberation is reasonable for the legitimate enforcement of state delegated duties as to teachers’ disciplinary action as to the pertinent facts at the time of the instant order to perform duties and the interpretation of relevant statutes. Thus, it is not reasonable whether the Plaintiff’s postponement of the instant

Therefore, as seen earlier, insofar as the act of the instant teachers’ leading participation in the First Declaration constitutes grounds for disciplinary action such as Article 78(1)1 of the State Public Officials Act, the Plaintiff is obligated to request disciplinary resolution with respect to the teachers who are state public officials on the ground that the act of the instant teachers leading to the First Declaration at the time of the instant order to perform their duties constitutes grounds for disciplinary action under Article 78(1)1 of the State Public Officials Act, and the pertinent school teachers are obligated to demand disciplinary action with respect to the pertinent private school teachers.

C. Whether the instant teachers were clearly negligent in performing their duty to request a disciplinary resolution on the disciplinary action

(1) As seen earlier, according to Article 170(1) of the Local Autonomy Act, where the head of a local government clearly neglects the management and enforcement of delegated affairs belonging to his/her duties, the competent Minister may order the head of the local government to perform the relevant duties.

Here, the requirement is premised on the establishment of an obligation to manage and execute the state delegated affairs. Since the head of a local government is a principle to perform the state delegated affairs belonging to such obligation, the head of a local government shall interpret that the obligation is satisfied when the head of a local government fails to perform such obligation without any special circumstances. Here, special circumstance refers to a cause of de facto disability, such as statutory disability, lack of financial capacity or condition of a local government, shortage of human resources, etc., which cannot be managed and executed by the State delegated affairs, and the circumstance where the head of a local government does not take different opinions from the competent Minister as to whether a local government is obligated to manage and execute a specific state delegated affairs does not constitute such circumstance. This is because a lawsuit seeking objection to an order to perform duties is established by granting the right to file a lawsuit to the head of a local government on the premise of conflict of opinion, such circumstance does not need to be considered in the judgment on the merits

(2) The Plaintiff asserts to the effect that “Although the duty to demand a resolution on disciplinary action against the instant teachers was established, there was controversy as to whether the First Declaration of Assembly and Demonstration was a legitimate act of realizing the freedom of expression at the time of the instant order to perform the duties, or it constitutes a collective act for the purpose other than public duties prohibited by the State Public Officials Act, there was no final judgment by the court, and there was no court’s final decision, and there was a reasonable reason for the Plaintiff to withhold the above request for disciplinary action, such as stating that the majority of legal professionals did not constitute disciplinary action.”

However, in light of the legal principles as seen earlier, the Plaintiff’s assertion is merely a mere fact that there is no obligation to request a disciplinary resolution, etc. on the disciplinary action of the instant teachers at the time of the instant order to perform duties, or that there is no clear obligation to do so, and thus, it cannot be deemed that there is any special circumstance not to implement the said request

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)