[1] The case holding that there is no legal interest in dispute over the disposition since the previous disposition of removal was implicitly withdrawn after the removal from the position

[2] The case reversing the judgment below and rejecting the lawsuit again on the ground that the court below rejected the lawsuit on the ground that there is no interest in the lawsuit as a claim for revocation of a non-existent disposition

[1] Where an administrative agency has removed a public official from his/her position based on a new ground for removal from his/her position, it shall be reasonable to deem that the removal from his/her position had been implicitly withdrawn, and therefore, there is no part seeking the cancellation of the removal from his/her position as already withdrawn from the lawsuit seeking the revocation of nullification of the removal from position and the revocation

[2] The case reversing the judgment of the court below and rejecting the lawsuit again on the ground that there is no interest in the lawsuit as a lawsuit seeking revocation of a non-existent disposition with respect to the dismissal of the lawsuit on the grounds of deficiencies

[1] Article 65-2 of the Local Public Officials Act, Article 12 of the Administrative Litigation Act, Article 228 of the Civil Procedure Act / [2] Articles 202, 384, 395, and 407 of the Civil Procedure Act

[1] Supreme Court Decision 92Da40587 delivered on July 27, 1993 (Gong1993Ha, 2386), Supreme Court Decision 93Da10743 delivered on September 10, 1993 (Gong1993Ha, 2730) / [2] Supreme Court Decision 91Da4669 delivered on May 26, 1992 (Gong1992, 198), Supreme Court Decision 93Da45015 delivered on June 14, 1994 (Gong194Ha, 1946), Supreme Court Decision 94Nu5281 delivered on May 12, 1995 (Gong195, 2129)

Plaintiff (Attorney Tae-young et al., Counsel for plaintiff-appellant)

Gyeonggi-do Governor (Attorney Shin Sung-sung, Counsel for the defendant-appellant)

Daegu High Court Decision 94Gu1488 delivered on May 19, 1995

The part concerning the removal from position on July 6, 1993 among the judgment of the court below is reversed, and that part of the lawsuit is dismissed. The remaining appeal by the plaintiff is dismissed. The costs of appeal by the reversed part and costs of appeal by the dismissed part are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

1. Regarding removal from his position on July 6, 1993

On July 6, 1993, the court below acknowledged that the plaintiff, who is a public official belonging to the defendant, was removed from his position on the ground that the plaintiff's act constitutes "a person who lacks the ability to perform duties or whose work performance is extremely poor" under Article 65-2 (1) 1 of the Local Public Officials Act because he was in collusion with his husband, and caused the failure of his family by taking money from his husband's family and assault his Dong, and damaged the dignity of public official by his conspiracy with his husband. In addition, on October 2 of the same year, the plaintiff made financial transactions with his wife who is his father, and recorded a conversation with his wife and transferred it to his father upon the request of his father after he speaks that he demands a sex relationship, and even if he did not request the cancellation of the above removal from position on the ground that he did not constitute "the above removal from position" under Article 65-2 (1) 1 of the Local Public Officials Act on the ground that he was found guilty, the court below did not dismiss the above removal from position.

However, according to the facts established by the court below ex officio, it is reasonable to view that the defendant removed the plaintiff from his position on October 2, 1993 based on the new reason for removal from position on October 2, 1993, and that the removal from position was implicitly withdrawn on July 6, 1993. Thus, the part seeking the cancellation of the removal from position is limited to an administrative disposition on July 6, 1993 where the removal from position was already withdrawn and its effect was lost, and therefore there is no interest in the lawsuit.

Therefore, the court below erred by misapprehending the legal principles as to the interest of legal action in an appeal litigation, which held that the removal from the position is valid on the premise that the removal from the position is valid on the ground that the removal from the position did not go through the procedure.

2. As to the suspension disposition on November 2, 1993

In light of the records, the fact-finding by the court below is justified, and there is no error of law of misconception of facts due to violation of the rules of evidence such as theory of lawsuit, and further, in light of the facts acknowledged by the court below, the judgment of the court below that the plaintiff's act constitutes grounds for disciplinary action and the contents of disciplinary action cannot be seen as deviation from or abuse of discretion is just, and there is no error of law of misunderstanding of the legal principles as to the limit of discretion, such as theory of lawsuit. There

Therefore, the part of the judgment of the court below which sought the cancellation of removal from the position of July 6, 1993 among the lawsuit of this case is reversed without any interest in the lawsuit, and without examining the plaintiff's grounds of appeal, the part of the judgment below is reversed, and the part of the lawsuit is dismissed, and the plaintiff's remaining grounds of appeal are without merit. The costs of the appeal and the costs of appeal to the reversed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating

Justices Kim Jong-soo (Presiding Justice)