2016Nu62483 Demanding revocation of disposition of disciplinary action, etc.

A

Minister of Oceans and Fisheries

Seoul Administrative Court Decision 2015Guhap75787 decided August 12, 2016

February 8, 2017

March 15, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

On May 1, 2015, the Defendant’s disciplinary action against the Plaintiff during two months of suspension from office and the imposition of disciplinary surcharge shall be revoked.

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows: (a) the reasoning for this case is the same as the rationale for the judgment of the court of first instance except for dismissal or addition of part of the judgment of the court of first instance as in Paragraph (2). Therefore, it is citing this as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article

2. Parts to be removed or added;

○ The second page No. 11 read “State Public Officials Act” as “former State Public Officials Act (amended by Act No. 12844, Nov. 19, 2014; hereinafter the same).”

○ 13th page 13, “On the ground of the violation of Article 61 (Duty of Integrity) of the former State Public Officials Act” shall be added.

○ 15 is to add “on the basis of Articles 78(1)1 and 78-2 of the former State Public Officials Act” in front of the “Plaintiff.”

Then, “The 4th page of the 4th page is not “(13)” (the Plaintiff considered golf meetings related to the instant disciplinary cause as a group of friendship with university motive or line, but could not be anticipated to pay golf costs from the side of the B company). Accordingly, the instant disciplinary cause added “No. Da.,”

○ From 14 up to 12 pages 14 up to 12 are as follows.

(1) Article 61(1) of the former State Public Officials Act provides that a public official may not receive, directly or indirectly, any case, donation or entertainment in connection with his/her duties. The purport of this provision is not to prevent a public official from committing an unlawful act in connection with his/her duties in advance. It attempts to prevent a public official from receiving, in advance, an unlawful solicitation, or the time of receiving, money or valuables, thereby protecting the public official’s netity and integrity in performing his/her duties and ensuring the propriety of performing his/her duties (see, e.g., Supreme Court Decision 2002Du11813, Nov. 12, 2004). The term “duty” under Article 61(1) of the former State Public Officials Act means that a public official is clearly related to his/her duties and duties, such as an individual’s duty and/or duty and/or duty and/or duty and/or duty and/or duty and/or duty and/or duty and/or duty and/or duty and/or duty and/or duty and/or duty.

(2) The above legal principles are as follows: (a) Company B was under the direction and supervision of the Maritime Safety Bureau of the Ministry of Oceans and Fisheries as an institution that entered into an agreement with the Ministry of Oceans and Fisheries on the performance of ship inspection duties, etc. on November 9, 2010; (b) Company C with golf and meal services with the Plaintiff was under the direction and supervision of the Ministry of Maritime Affairs and Fisheries; (c) Company C was under the direction and supervision of the Ministry of Maritime Affairs and Fisheries; (d) Company C was under the direction and supervision of the Ministry of Maritime Affairs and Fisheries; and (e) Company C was under the direction and supervision of the Ministry of Maritime Safety Bureau of the Ministry of Maritime Affairs and Fisheries; and (e) Company was under the direction and supervision of the B Company from September 22, 2005 to April 3, 2011, the Plaintiff was under the direct direction and supervision of the B Company from the Maritime Safety Policy Bureau of the Ministry of Oceans and Fisheries, which was under the direct direction and supervision of the B Company from the Ministry of the Ministry of Maritime Safety Policy.

8) The Plaintiff, at the time of the instant disciplinary cause, worked for a department in charge of the business affairs directly related to B prior to the dispatch to a foreign country. The assignment to a department that may affect B at any time after the instant disciplinary cause was likely to have been changed to a department in charge of the business affairs directly related to B. 5 The guidance and supervision department related to the inspection affairs of B is the maritime safety industry of the Ministry of Oceans and Fisheries under the organization of the Ministry of Oceans and Fisheries, and the Plaintiff did not have worked for the maritime industrial technology of the Ministry of Maritime Affairs and Fisheries, but it is difficult to view that the department directly related to the business affairs related to B, the international maritime safety policy of the Ministry of Maritime Affairs and Fisheries, and the International Maritime Safety Policy of the Ministry of Oceans and Fisheries, as well as U, R, M, or Maritime Safety Policy of the Ministry of Oceans and Fisheries, and the Plaintiff did not know that the Plaintiff could have worked for the maritime industry and the maritime safety policy of the Ministry of Oceans and Fisheries at any time before the instant disciplinary cause.

Therefore, among the grounds for disciplinary action of this case, the remainder, except for the portion of entertainment accepted on October 22, 2013, which was not recognized as grounds for disciplinary action prior to the foregoing, constitutes a case where money and valuables are received from a person related to duties.

C) In a case where it is sufficient to recognize the validity of the pertinent disciplinary action even with the fact that some of the several disciplinary grounds are not recognized, the same shall not apply to the maintenance of the relevant disciplinary action (see, e.g., Supreme Court Decision 2002Du11813, Nov. 12, 2004).

However, in the instant case, it is sufficient to recognize the validity of the instant suspension disposition only with other grounds for disciplinary action recognized in light of the amount and content of the grounds for disciplinary action, which are not recognized. difficult to see it, the instant suspension disposition cannot be maintained and ought to be revoked illegally.

2) Whether the imposition of the instant disciplinary surcharge is legitimate

Article 78-2 (1) of the former State Public Officials Act provides that disciplinary charges may be imposed within five times the amount of money, goods, and entertainment received in addition to the pertinent disciplinary action where the grounds for disciplinary action are acceptance of money, goods, and entertainment, or the embezzlement and misappropriation of public funds. The Defendant imposed disciplinary charges (1,50,607 won x 2 times) on the premise that KRW 1,500,607, including the amount of entertainment received on October 22, 2013, which was 450,000,000 won, was the amount of entertainment received. As seen earlier, the portion of entertainment received on October 22, 2013 among the grounds for disciplinary action in the instant case does not have any evidence to acknowledge this. Thus, even if the remaining grounds for disciplinary action constituted cases where entertainment received from a person related to his/her duties, the instant disciplinary surcharge in this case is unlawful since the grounds for imposing the disciplinary action are not recognized.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the judge and the marine judge

Judges Woo-ok

Judges Song Sung-sung