(영문) 인천지방법원 2018.11.22.선고 2018구합1064 판결

A. The Plaintiff was appointed as a public official of class 9 on December 10, 1982, and transferred to the Ministry of Employment and Labor on September 25, 1987. From February 27, 2015, the Plaintiff served as an administrative assistant (Grade 6) at the Bupyeong-gu Regional Employment and Labor Agency B and customer support room.

B. On March 30, 2016, the Plaintiff was prosecuted as follows. On April 20, 2016, the Defendant, on the ground that he/she was prosecuted as a criminal case against the Plaintiff, imposed removal from his/her position pursuant to Article 73-3(1)4 of the State Public Officials Act (hereinafter “instant disposition”). On October 24, 2016, the Minister of Employment and Labor, on the Plaintiff on the ground of disciplinary reasons, such as violation of the duty of integrity, violation of the duty of good faith, good faith, good faith and duty to maintain dignity, imposed a disciplinary measure of KRW 2 million and disciplinary surcharge on the Plaintiff.

○ Acceptance of bribe

① On December 7, 2012, when the Plaintiff was working in the Central and Medium Local Employment and Labor Office C, the Plaintiff sent to D Co., Ltd., a place of business within the jurisdiction of the Republic of Korea, an official document demanding the submission of a contract for temporary placement of workers. On December 14, 2012 of the same year, the Plaintiff requested corrective measures by pointing out the illegality of the dispatch of illegal workers by leaving the representative E as an office, and then, on January 4, 2013, the Plaintiff received one million won in cash, which was provided as convenience from E, and ordered the acceptance of bribe in relation to his duties.

② On October 20, 2014, when the Plaintiff was working in the office F of the Jung-gu Regional Employment and Labor Office, the Plaintiff visited U.S.T., a workplace within the jurisdiction of the Ministry of Labor, to present documents, such as a contract for dispatch, and demanded to verify whether the illegality of dispatch of illegal workers was found. On October 20, 2014, the Plaintiff sent to the said company a written corrective order to suspend transactions with an illegal contracting company at his/her own discretion, and then received a bribe in relation to his/her duties by receiving KRW 1 million from the employees of the said company, who received the said company’s daily Labor Standards Act and other labor relations laws or administrative dispositions related to enforcement of the Labor Relations Act.

○ Forgery of Private Document and Uttering of Private Document

On June 29, 201, when H had worked in the Central and Medium Regional Employment and Labor Agency C, the Plaintiff entered the case at will, “the name, resident registration number, address, telephone number, name of the respondent, name of the place of business, location of the place of business, etc.” in the form of the petition withdrawal “the name of the respondent and the case number column,” “the agreement on the grounds for withdrawal and the intention of criminal punishment”, “H is not original”, and the signature of H is stated above, and this case was bound to be bound to be bound to be bound by document files in the document files in H’s name, “the name of the withdrawn person, H” and “the name of the withdrawn person is indicated above,” and the Plaintiff exercised one copy of the petition withdrawal document, which is a private document with respect to H’s rights and obligations, and one copy of the judgment of the appellate court which was rejected on February 7, 2017.

D. The Plaintiff filed an appeal seeking the instant disposition and the revocation of the said disciplinary action. On March 8, 2018, the Ministry of Personnel Management dismissed the claim regarding the instant disposition, changed the period to one month of salary reduction, and decided to revoke the disciplinary action.

[Reasons for Recognition] Evidence Nos. 5 through 8, Evidence Nos. 2 and 3, the purport of the whole pleadings

2. Determination on the defense prior to the merits

The defendant asserts that since the plaintiff retired on June 30, 2017, the lawsuit in this case is unlawful as there is no benefit of the lawsuit.

However, in the event the instant disposition is revoked, even if it is impossible for the Plaintiff to return to the public official position beyond the retirement age of the public official, the Plaintiff is entitled to seek payment of the reduced salary, etc. due to the instant disposition, so there is a legal interest in seeking revocation of the instant disposition (see, e.g., Supreme Court Decision 2012Du26180, May 16, 2014). Accordingly, the Defendant’s defense prior to the merits is difficult to accept

3. Judgment on the merits

A. The plaintiff's assertion

Considering the fact that the Plaintiff was indicted for a criminal case, but the judgment of innocence became final, the Plaintiff’s suspicion of acceptance of bribe was fabricated based on the false information prepared by the auditor belonging to the Ministry of Employment and Labor, and the Plaintiff’s charge of forging and uttering of an investigation document was already terminated at the time of the instant disposition, the instant disposition was unlawful since there was no ground for disposition.

(b) Related statutes;

The State Public Officials Act

No person who falls under any of the following subparagraphs shall be appointed as a public official:

3. A person in whose case five years have not passed since his/her imprisonment without labor or greater punishment as declared by a court was completely executed or exempted;

4. A person in whose case two years have not passed since his/her imprisonment without labor or greater punishment as declared by a court was completely suspended;

5. A person who is under the suspension of the sentence of imprisonment without prison labor or heavier punishment;

6. A person who is disqualified or whose qualification is suspended by a court ruling or by any other Act and Article 73-3.

(1) The appointment authority may decide not to assign a position to any of the following persons:

4. Judgment on a person prosecuted for a criminal case (excluding a person against whom a summary order has been requested);

The removal from position in accordance with Article 73-3 (1) 4 of the State Public Officials Act is a separate measure that differs from a disciplinary action, which is a punitive measure, and is different from that of a disciplinary measure. The purpose of the removal from position is to prevent in advance a specific risk that if a public official who has been charged with a criminal prosecution continues to hold a position and perform his/her duties at the stage before he/she is retired ipso facto after having received a final judgment of conviction.

In light of the purpose of the system of removal from position, etc., the legality of removal from position based on the grounds under Article 73-3 (1) 4 of the State Public Officials Act shall be determined based on the specific circumstances, such as whether the relevant State public official is highly probable to be convicted of a conviction falling under subparagraphs 3 through 6 of Article 33 of the State Public Officials Act, which is the reason for his/her ipso facto retirement, and whether the relevant disciplinary action causes a risk to fair performance of official duties by continuing to perform his/her duties. The relevant disciplinary action following the removal from position does not immediately constitute an unlawful removal from position on the ground that the relevant disciplinary action was revoked due to the absence of grounds for disciplinary action, expiration of the statute of limitations (see Supreme Court Decision 2012Du2552, Oct. 30,

The following circumstances acknowledged from the above evidence, namely, ① the Plaintiff was prosecuted as charges of bribery, fabrication of private documents, and uttering of the above investigation documents, and the statutory penalty for the crime of acceptance of bribe was 'a imprisonment for not more than 5 years or a suspension of qualification for not more than 10 years', and the statutory penalty for the crime of forging private documents and the crime of uttering of the above investigation documents'. Thus, in a case where the Plaintiff confirmed a conviction of the facts charged of bribery, it constitutes a ipso facto reason, and ② the Plaintiff was found guilty of the facts charged, but the court of first instance rendered a judgment of conviction on the part of the above facts charged. (In an appellate trial, it is difficult to view that there is credibility to the extent that the statement of the persons concerned, such as the person who was considered as the person who provided the bribe with the bribe with respect to the acceptance of bribe part, and the above facts charged against the Plaintiff was related to the Plaintiff's performance of his duties, ③ It seems that there is a high probability that the Plaintiff could have been subject to a disciplinary action and a disciplinary action against the Plaintiff's exercise of this case.

4. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.