(영문) 서울고등법원 2011.5.12. 선고 2010누35151 판결

The judgment of the first instance court is revoked, and the defendant's disposition of suspension for three months against the plaintiff on December 23, 2009 shall be revoked.

Reasons

1. Quotation of the first instance judgment

The court's reasoning for this case is as follows.

With the exception of adding a part to the judgment of the first instance, it is identical to the judgment of the court of first instance. Thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

2. Additional parts; and

A. The plaintiff's assertion

The Plaintiff asserts to the purport that the instant disciplinary action is unlawful, on the grounds that: (a) the Defendant did not conduct an investigation even though there is sufficient room to suspect the Plaintiff’s suspicion of disciplinary action; (b) requested the Plaintiff to make a false statement without making a sufficient investigation; and (c) the Defendant’s investigation process was conducted by forcing the Plaintiff to make a false statement in order to achieve the intended purpose; and (d) the instant disciplinary action is unlawful.

B. Determination

In order for a public official to divide the investigating entity and the subject of disciplinary determination into disciplinary proceedings in an internal manner, a disciplinary decision shall be requested to the disciplinary committee if the public official falls under the grounds for disciplinary action stipulated in the above Act (Article 78). However, this is merely an internal procedure of the administration and is not premised on taking strict procedures based on impeachment principle. In this regard, the issue of which disciplinary action is taken against a person subject to disciplinary action recognized as the grounds for disciplinary action is at the discretion of the disciplinary authority. In this case, not only the content and nature of the grounds for disciplinary action, but also the past history of the person subject to disciplinary action, other than the performance, and other misconduct after the occurrence of the grounds for disciplinary action, may be considered as the basis for the choice of the kind of disciplinary action (see Supreme Court Decision 97-2528, 2535, Sept. 3, 199).

According to the evidence evidence No. 15 and No. 15, the part of the grounds for disciplinary action against the plaintiff in this case can be acknowledged as not taking the grounds for disciplinary action at the Central Disciplinary Committee and the Appeal Review Committee. However, in light of the above legal principles, the following circumstances are acknowledged as follows, i.e., (i) the public official disciplinary order only provides that "in the event of a request for disciplinary action," sufficient investigation is not required for the request for disciplinary action (Article 7 (6)), and there is no room for doubt as alleged by the plaintiff (Article 7 (6)); (ii) the defendant made an investigation of the plaintiff seven times or more, and made a business trip and made a request for disciplinary action to the plaintiff, and (iii) the defendant made an investigation of the facts of suspicion, which were the grounds for disciplinary action, more actively and objectively separated the subject of the investigation and the decision on disciplinary action, and thus, it cannot be concluded that the defendant's answer to the request for disciplinary action, which is a part of the defendant's answer, was excluded from the grounds for disciplinary action.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.