Plaintiff (Law Firm Young-soo, Attorneys Song Sang-hoon et al., Counsel for the plaintiff-appellant)

The Minister of Employment and Labor (Law Firm Jeong, Attorneys Jeong Jin-jin et al., Counsel for the defendant-appellant)

November 9, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's removal from his position against the plaintiff on January 6, 2011 shall be revoked.

1. Details of the disposition;

A. From July 2, 1979, the Plaintiff served as an allowance position equivalent to class 7 of the Ministry of Employment and Labor, and served as an industrial counselor (Grade VII in extraordinary civil service) on January 1, 1981 and on August 2, 1989. On August 3, 1989, the Plaintiff was specially employed as an employee in general service as an employee in general service, and promoted to the officer on March 9, 2006.

B. The Plaintiff, from March 9, 2006 to February 6, 2007, was the head of ○○ Regional Labor Relations Commission; from February 7, 2007 to January 3, 2008, the head of △△△ branch labor supervision division of the Gwangju Regional Labor Management Agency; from January 4, 2008 to August 27 of the same year, from January 2008 to August 27, 2010, the head of △ branch of the Seoul Regional Labor Management Office; from August 28, 2008 to March 7, 2010, the head of △ branch of the labor improvement supervision division of the Seoul Regional Labor Management Office; and from March 8, 2010 to July 11, 2010 to Seoul Local Labor Management Office, the head of △ branch of the △ branch of the Seoul Regional Labor Management Office was working, respectively; and from Seoul Local Labor Management Center’s planning to work from July 21, 2010 to May 15.

C. On January 6, 2011, the Defendant removed the Plaintiff from office in accordance with Article 73-3(1)2 of the State Public Officials Act on the ground that, in full view of the job ability and the result of on-site support activities conducted from July 12, 2010 to October 8 of the same year, the Plaintiff was deemed to have significantly lack of job performance (hereinafter “instant disposition”), and dismissed the Plaintiff on August 4, 2008 following a resolution of the Central Disciplinary Committee on July 15 of the same year.

D. On January 10, 201, the Plaintiff filed a petition review with the appeals review committee on the instant disposition, but was dismissed on April 8, 201.

[Reasons for Recognition: The absence of dispute, Gap evidence 1-1, 2, 2-3, Eul evidence 6-1, 2-2, Eul evidence 1-1, 1-4, Eul evidence 30, 46, 47, and the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

1) procedural illegality

Before the instant disposition, the Plaintiff did not provide the Plaintiff with an opportunity to vindicate or state his opinion, and the instant disposition did not contain an explanatory note on the grounds of disposition, and the explanatory note on the grounds of disposition, which was issued later, did not indicate specific and clear facts.

(ii)an illegality in the selection of persons eligible for capacity enhancement education and on-site support activities;

In the instant case, the evaluation results may lead to withdrawal at the time of the multi-source evaluation violates the good faith principle, and the examiner or the investigator of the Employment Insurance Review Committee or the National Labor Relations Commission, etc. were voluntarily selected as the subject of multi-source evaluation, such as the exclusion from the subject of multi-source evaluation and the failure to reflect the results of the agency affairs at all. If the subject of multi-source evaluation was voluntarily organized by the evaluation group, and there was no reasonable criteria for selecting the subject of multi-source evaluation, so the Plaintiff’s selection as the subject of evaluation is unlawful.

(iii) deviation from and abuse of discretionary power;

According to the guidelines on the performance evaluation, etc. of public officials, if the defendant does not directly reflect the evaluation results in the personnel affairs of public officials, the defendant dispositions in this case based on the evaluation results. The plaintiff did not properly evaluate the plaintiff's ability strengthening education and the results of field support activities by omitting the number of 56 pages of the field activity report among the 86 pages of the survey results and receiving an evaluation of external members on the field activity report, etc. In light of the fact that the defendant did not select a person subject to dismissal according to objective and absolute performance criteria, not to select a person subject to removal from position, but to assign 7 persons subject to postponement of assignment, 40% of the 18 persons subject to the capacity strengthening without any special ground. In light of the fact that the defendant issued the disposition in this case without considering the plaintiff's work performance, the plaintiff does not fall under a person lacking the ability to perform his duties under Article 73-3 (1) 2 of the State Public Officials Act. The defendant issued the disposition in this case even if the plaintiff can be assigned a position that the plaintiff can perform his duties only at will be ex officio.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Formulation of plans to strengthen the capacity of class 5 managers;

A) On April 23, 2010, the Ministry of Employment and Labor held a workshop for the improvement of the personnel system in 2010 in which 100 public officials of Grade IV or lower in the Ministry of Employment and Labor participate. Here, the Ministry of Employment and Labor proposed capacity-building education as a means of improving the management and evaluation methods of subordinate employees, and training of managers with a frusive rusive rusive rus for job performance and organizing.

B) On May 28, 2010, based on the above capacity strengthening plan, the Defendant prepared a personnel system improvement plan to reflect the results of the evaluation in the future personnel management without setting in advance to prevent side effects due to the establishment of target personnel, and presented its opinion to the affiliated agencies. On May 28, 2010, the Defendant approved all affiliated agencies.

C) On June 14, 2010, the Defendant: (a) conducted a multi-level evaluation method by each local employment and labor office on two occasions on two occasions around June 2010; (b) conducted a multi-level evaluation of the capacity of a class 5 manager; and (c) reported to the Ministry of Employment and Labor by referring to a performance evaluation result, etc.; and (c) reported to the Ministry of Employment and Labor; (d) the Ministry of Employment and Labor selects persons subject to the capacity strengthening at the final selection committee composed of the office, bureau, and bureau; and (e) issued a personnel management order to the head of the regional employment and labor office; and (e) the local employment and labor office has conducted the capacity strengthening education for persons subject to the capacity strengthening for about one month and on-site customer satisfaction support activities inside and outside of two months; and (e) the Ministry of Employment and Labor shall evaluate the results of the capacity strengthening education, etc. by referring to the opinions of educational institutions and auditors’ offices composed of the office, bureau, and external experts, and reflects the results of various personnel management.

2) Selection of persons subject to capacity building through multi-face evaluation, etc.

A) If the Defendant conducted a multi-level public official of Grade V who has been promoted to Grade V and for whom four years have not yet passed since promotion to Grade V, the result may be distorted, and accordingly, the head of Seoul Regional Employment and Labor Administration intended to conduct a multi-level evaluation for at least 37 persons who have been promoted to Grade V among Grade V public officials in Grade V and Grade V through the “e-person” which is the internal computer network of the Ministry of Employment and Labor. If a multi-level evaluation is conducted for at least 4 years, the head of Seoul Regional Employment and Labor conducted a multi-level evaluation for at least 37 persons who have been promoted to Grade V from among Grade V public officials in Grade V and Grade VI, 130 evaluation groups consisting of those who have served for at least three years in the Ministry of Employment and Labor, and, in principle, 30 evaluation groups consisting of those who have served at least Grade V and below, 15 evaluation points in the case of a multi-level evaluation group consisting of 37 high-level high-level public officials, 4.

B) On June 24, 2010, the Seoul Regional Employment and Labor Agency held a meeting of the committee for the selection of those subject to the competence building to explain the eligibility criteria to six members attending the meeting, and provided the list of employees, personal information, major career, etc. of those subject to the competence building, and the list of staff members of the instant multi-level evaluation results, where six members of the instant group are each of the following: (a) select 10 persons lower than the evaluation results and 5 persons deemed necessary to be qualified from among all Grade 5 public officials, and submit them as life names; and (b) discuss the case where eight persons, including the Plaintiff, are in need of capacity building and recommended them to the Ministry of Employment and Labor; and (c) if so, those who were evaluated lower than the Plaintiff of the evaluation results were included in the target of capacity building.

C) On July 6, 2010, the Ministry of Employment and Labor held a committee for the selection of persons subject to the capacity strengthening consisting of the Vice Minister of Employment and Labor, three public officials of director general level, three external evaluation members, and two members of the external evaluation committee, and conducted a comprehensive report of the head of each regional employment and labor office, the Plaintiff’s opinion in the audit room that the Plaintiff avoided the Plaintiff’s work together with other employees and caused interference to the institutional operation, based on the data such as the opinion of the audit room and the evaluation of capacity assessment, etc. on the basis of whether there were 23 public officials of class 5 recommended by six local employment and labor offices, etc. to be subject to the capacity strengthening, among the 23 public officials of class 23, the total number of public officials of class 5 who are recommended to be subject to the capacity strengthening, one applicant for voluntary retirement and 20, excluding the two determined to be improved from among those subject to the capacity strengthening.

(iii) the implementation and evaluation of capacity-building programs;

A) On July 9, 2010, the Defendant instructed the respective regional employment and labor offices of various levels “the operation guidelines of the customer satisfaction site support group” based on the basic direction of “organization, operation, personal review tasks, selection of an affiliated institution’s tasks, and implementation of field monitoring, and the drawing of tasks closely related to the request of the affiliated institution through the guidance of the head of the agency.”

B) The education courses conducted by the Seoul Regional Employment and Labor Agency from July 12, 2010 to August 6, 2010 consisting of collective education 84 hours, 3 hours, 3 hours, 3 hours, 39 hours for cyber education, 2 out of recommended books. On-site support activities conducted from August 9 to October 8, 201 of the same year consisting of a submission of reading appreciations for each individual. On-site support activities conducted from August 9 to October 8 of the same year consisting of selecting a review task for each individual and visiting the site to monitor the tasks and submitting a report.

C) On September 27, 2010, the Defendant issued orders to the Local Employment and Labor Offices of various levels and the National Labor Relations Commission to take measures with regard to the operation of the On-Site Support Group on the basic direction, such as “measures that make it possible for the Defendant to make changes by differentiated the evaluation items, such as objective, process, and transparent evaluation basis through strict management, such as disclosure of progress procedures, pre-announcement, etc., securing of transparency in evaluation through quantitative evaluation, and possibility of capacity development.”

D) On October 1, 2010, the Seoul Regional Employment and Labor Office held a meeting for interim inspection of on-site activities conducted by four persons, excluding the field support team leader, at the meeting of the head of the Seoul Regional Employment and Labor Office, the head of the ▽▽▽▽▽△△○, the head of labor improvement guidance1, the head of the planning and general administration division, and the head of the management division, assessed the news, logic, etc. of the on-site support group subject to the capacity strengthening. The Plaintiff was first three persons among the six persons subject

E) On October 2010, the Ministry of Employment and Labor: (a) requested an external expert to evaluate a research report on 18 persons subject to the 5th degree strengthening capabilities in the early police officer; and (b) notified the result to the Regional Employment and Labor Office and the National Labor Relations Commission on October 15, 2010; and (c) the “plan to improve the operation of the small and medium youth internship system” submitted by the Plaintiff was 11 out of the 18 research report.

F) The head of the Seoul Regional Employment and Labor Agency, taking into account the internal evaluation of the members of the internal evaluation committee and the external evaluation committee members of the final report on research tasks related to field support activities, determined the overall opinions and ranking of the subjects by holding a meeting, taking into account the evaluation of the members of the internal evaluation committee on the interim announcement of the research tasks related to field support activities, and the external evaluation committee members on the final report. The Plaintiff was determined as the fourth among Grade 5 public officials of Grade 6, and the summary of the evaluation results with respect

The comprehensive opinion and lecture points as a result of cyber education (evaluation point: 87.5 points): Communication, promotional power and medicine point: large recognition ability, mature and overall participation degree, performance result, etc. are considerably excellent, and there is a possibility of change. However, the actual change in the practice of field support is anticipated to take a little time, 5 points in the field support activities. 3.8 points (5 points) points (3.8 points) points (3.8 points: 3.8 points, logical experience), and 3.4 points (3.4 points) points (4.5 points): It was difficult for the manager to make efforts to improve the past and to make efforts to ensure that he/she was able to participate in on-site activities, such as improving his/her performance of his/her past research activities, due to the attendance at the education site, and completing the education at the education site: 5 points (5 points); 3.8 points (5 points); 3.8 points; 3.4 points); 4.5 points and 4.4.

G) On October 27, 2010, the Ministry of Employment and Labor held an evaluation committee on the results of on-site support activities for public officials of Grade 4-5 of the Ministry of Employment and Labor, etc., and conducted an evaluation committee to reflect five members in personnel affairs by examining the results of the evaluation committee’s meetings, evaluation results, summary of each report by the Secretary General of the National Labor Agency and the Secretary General of the National Labor Relations Commission, customer satisfaction site support group, comprehensive report by customer satisfaction site support group, research report by customer satisfaction site support group, individual education-related data, etc. on the basis of each subject’s education results (5 points), on-site support activities (5 points), where the sum of points assigned to each item exceeds 12 points, it shall be deemed to exceed 12 points, 12 points, and 9 points, and it shall be deemed that it is difficult for a public official to perform his/her duties, and thus, it shall be considered that he/she was subject to the evaluation of Plaintiff 6's ability strengthening time, etc. on an individual basis.

H) On November 5, 2010, the Defendant notified the head of each local labor office, etc. of the result of the evaluation committee, such as field support activities for persons subject to Grade 4-5 strengthening capacity, and notified the Plaintiff and other persons subject to postponement of assignment from November 11 to December 10 of the same year that the period of on-site support activities for those subject to postponement of assignment, including the Plaintiff, among those subject to extension of capacity.

4) The instant disposition

A) On December 31, 2010, the Defendant, including the Plaintiff, was granted the assignment of the Plaintiff to a person subject to a disability evaluation, and subsequently determined the Plaintiff internally as a person subject to dismissal from position by examining whether the Plaintiff was released from position on December 31, 2010, taking into account the aforementioned evaluation results, work performance evaluation rating, disciplinary action and award and decoration data, the Plaintiff’s trend identified in the auditor’s office, and the fact that the Plaintiff was selected as a person subject to the process of improving the

B) Accordingly, on January 6, 2011, the Defendant imposed the instant disposition on the Plaintiff, “measures to secure job offers taking into account the local characteristics,” and “measures to improve the leadership of interim managers to promote efficient tasks and improve the satisfaction of external customers” as a research task. On the other hand, the Defendant imposed learning on the Employment Insurance Act, the Labor Standards Act, the Trade Union and Labor Relations Adjustment Act, and the Occupational Safety and Health Act during the waiting period.

5) Plaintiff’s work performance record, etc.

A) The Plaintiff received from December 38, 2008. 5, 2009. 40. 5, 2009. 6. 45, 2009. 45, and 41. 6. 5, 2010. The Plaintiff received from the lowest grade “yang (from 34 to 47.5: Provided, That no points are actually awarded, but less than 34 points)”. In relation to each of the above work performance ratings, the Plaintiff received from the evaluation, from the second half of 2008, from the evaluation, the Plaintiff was first 7 among the 8th and the 7th half in the first half of 2009, the 6th and the 7th half in the second half of 2009, among the 6th and the 7th half in the second half of 2010.

B) Meanwhile, on March 9, 2006, 41, including the Plaintiff, promoted from the Ministry of Employment and Labor to Grade 5 on December 2, 2008, 17, 24, 24, 15, 25, 15, 25, 10, 10, 26, 4, 10, 26, 26, 10, 10, 26, 10, 26, 10, 10, 26, 10, 20, 26, 10, 26, 20, 5, and 4, respectively.

C) On October 21, 2005, the Plaintiff had 32 out of 32 persons eligible for promotion in multi-level evaluations for promotion of Grade V officials.

[Ground for recognition: Gap, Eul, 5, 17, 18, 21, 33 through 35, 37 through 48, 50 through 53, Gap's evidence 6-1 through 3, Gap, 12, 22-1 through 8, Gap, 13, 24, 25, 27-1 through 4, Gap's evidence 14, 16, 19, 26, 28, 36, 49-1, 23-1 through 5, Eul's evidence 23-1 through 5, Eul's evidence 23-1, 1 through 5, 17, 17 through 19, 21 through 23, 245 through 47, 36, 45-1, 46, and 47-1, 5-1, 36-1, and 5-2, 47

D. Determination

1) As to the first argument

A) Article 3(2)9 of the Administrative Procedures Act and Article 2 subparag. 3 of the Enforcement Decree of the same Act provide that the same Act shall not apply to matters concerning disciplinary action and other measures pursuant to the Acts and subordinate statutes related to personnel affairs of public officials. Thus, in case of removal from position pursuant to Article 73-3 of the State Public Officials Act, it is not necessary to go through the procedures provided for in the Administrative Procedures Act in addition to the issuance of an explanatory note on grounds for disposition provided

According to Article 75 of the State Public Officials Act, when a public official is released from his/her position, an explanatory note stating the reasons for the disposition shall be issued to the public official who is subject to the disposition. This purport is to provide the public official with the opportunity to file a lawsuit where he/she is dissatisfied with the justifiable reasons, and the issuance of the explanation of reasons for the disposition cannot be deemed as an effective requirement for the disposition. In light of the fact that the issuance of the explanation of reasons for the disposition is a disadvantageous disposition against the public official whose dismissal is conducted at the discretion of the personnel management authority, the purport of the above provision regarding the issuance of the explanation of reasons for the disposition is to ensure the principal's opportunity for objection by allowing the personnel management authority to know the circumstances leading to the removal from his/her position, and to ensure the proper exercise of the authority regarding the removal from position by allowing the personnel management authority to decide with careful and reasonable discretion on the existence of reasons for the removal from position and exclude the person from his/her position (see, e.g., Supreme Court Decision 200Da97989, Dec. 297, 197).

B) On January 5, 201, the day before the disposition of this case, the defendant issued a written reason for the disposition of this case to the plaintiff on January 5, 201, which is the day before the disposition of this case. The reason for the disposition of this case is as follows: "the plaintiff was selected as a person subject to the capacity strengthening of evaluation results if he was the subject of the disposition of this case, and performed the capacity strengthening education and field support activities from July 12, 2010 to October 8, 201. Since it is deemed that the evaluation committee's 4-5 on-site support activities held on October 27, 2010 lacks the ability to perform duties, the disposition of this case shall be taken in accordance with Article 73-3 (1) 2 of the State Public Officials Act, and the plaintiff's appeal of this case against the disposition of this case was requested to the appeals review committee of this case on January 10, 201, but the plaintiff's appeal of this case is without merit.

2) As to the second argument

The following circumstances revealed in the above facts, namely, ① the selection of persons eligible for field support is based on the Defendant’s right to assignment, who is the personnel management authority, and the Defendant has considerable discretion to the Defendant. ② However, the Defendant established the instant means of strengthening the capacity by referring to the results of holding the workshop for improving the personnel system and the opinions of its affiliated agencies in order to strengthen the capacity of Grade 5 managers who lack the ability to perform their duties, such as guidance for organizing the above, and ③ the Defendant issued an evaluation on the public officials whose number of years has not passed since it was promoted to Grade 5 among Grade 5 public officials, to which Grade 4 or more would distort the outcome if it were conducted. The Seoul Local Employment Agency, which is composed of five or more years of promotion to Grade 5 or more, was to be recommended to the Defendant, based on the above policy on strengthening the capacity of the public officials to be recommended to Grade 5 or more, and if it appears that it would be objectively unreasonable, it would be reasonable that the selection criteria of the instant public officials to be conducted by the Seoul Local Employment Agency.

3) As to the third argument

A) The removal from position under Article 73-3 (1) 2 of the State Public Officials Act is a provisional measure that prevents a public official from performing his duties in the future because he lacks the ability to perform his duties or is extremely poor and that the public official temporarily fails to assign a position in order to prevent anticipated occupational interference if he continues to perform his duties in the future. The removal from position is a disciplinary measure against a public official’s past misconduct, which is taken for the purpose of maintaining national order (see Supreme Court Decision 2003Du5945, Oct. 10, 2003). The nature of the disciplinary measure is different (see Supreme Court Decision 2003Du5945, Oct. 10, 2003). However, where the removal from position constitutes an abuse of rights under related Acts and subordinate statutes such as the State Public Officials Act, or where it is evident that it falls under the abuse of rights under our sound social norms or social norms, the removal from position is an unlawful disposition that deviates from the scope of discretion or abused discretion (see Supreme Court Decision 2006Da3737376, Jun. 26, 2006).

B) Despite the above facts, the Plaintiff’s number of employees in the above-mentioned case, i.e., the number of employees in the above-mentioned field or the number of employees in the above-mentioned case’s records, i.e., the provision on the performance evaluation of public officials belonging to the Ministry of Public Administration and Security provides that such evaluation may be conducted if there are reasons for personnel management, etc., of the public officials belonging to the above-mentioned Seoul High-level 2. However, this provision provides that if the results of evaluation can be used for capacity development, education, and training, etc. (Ⅳ. 2) is merely an internal guidelines for administrative agency’s internal management, it cannot be deemed that the instant disposition was conducted in violation of the guidelines on the performance evaluation of public officials in the above-mentioned field, i.e., the number of employees in the above-mentioned field or the number of employees in the above-mentioned field, i., the number of employees in the above-mentioned field, and the total number of employees in the evaluation report prepared by the Ministry of Employment and Labor, 18.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Form 5]

Judge Thai-sai (Presiding Judge)