[1] Criteria to determine whether removal from position is illegal pursuant to Article 73-2 (1) 4 of the former State Public Officials Act

[2] The case holding that the disposition of removal from position pursuant to Article 73-2 (1) 4 of the former State Public Officials Act was abused and abused the scope of discretion solely on the ground that a mere indictment was filed for a violation of the National Security Act, not a general criminal case

[1] Article 27 (4) of the Constitution provides that a criminal defendant shall be presumed innocent until a judgment of conviction becomes final and conclusive. The removal from position system under Article 73-2 (1) 4 of the former State Public Officials Act (amended by Act No. 4829 of Dec. 22, 1994) provides that if a public official who has been prosecuted continues to hold a position and perform his/her duties at the stage before he/she becomes retired ipso facto after obtaining a final and conclusive judgment of conviction, there may be a risk of undermining the fairness in the execution of public duties and the people's trust. Thus, in light of the principle of presumption of innocence under the Constitution or the above purpose of the removal from position system, removal from position can not be justified merely on the ground that he/she is prosecuted in a criminal case, and the determination of illegality should be made by taking into account specific circumstances such as whether a party is highly probable to be convicted under Article 33 (1) 3 through 6 of the State Public Officials Act, which is a reason for ipso facto retirement, and whether the party continues to perform his/her duties.

[2] The case holding that the disposition of removal from position pursuant to Article 73-2 (1) 4 of the former State Public Officials Act was abused and abused the scope of discretion solely on the grounds that a mere indictment was filed for violation of the National Security Act, not a general criminal case

[1] Articles 33(1) and 73-2(1)4 of the former State Public Officials Act (amended by Act No. 4829 of Dec. 22, 1994); Article 27(4) of the Constitution / [2] Articles 33(1), 73-2(1)4 of the former State Public Officials Act (amended by Act No. 4829 of Dec. 22, 1994); Article 27 of the Administrative Litigation Act

[1] Supreme Court Order 87Nu60 delivered on May 26, 1987 (Gong1987, 1100), 90HunGa48 delivered on November 19, 1990 (Hun-Ga2, 393), Constitutional Court Order 93HunGa3, 7 delivered on July 29, 1994 (Hun-Ga7, 525), Constitutional Court Order 96HunGa12 delivered on May 28, 198 (Hun-Ga28, 451)

Plaintiff 1 and one other (Law Firm Busan General Law Office, Attorneys Seo Jae-in et al., Counsel for the plaintiff-appellant)

Defendant

Busan High Court Decision 94Gu8013 delivered on August 14, 1998

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

1. The facts duly established by the court below are as follows.

A. The Plaintiffs, as professors of universities, established a course of liberal arts, i.e., 1989, 7 professors of the East University and 1989, 'the understanding of the Korean society', 'the understanding of the Korean society', 'the understanding of the Korean society', and 'the understanding of the Korean society', around February 1990. Around February 1994, the Plaintiffs made a revised board and sold it at a national book, and were demoted from March 1994 to July 2 of the same year to 950 students of universities.

B. On November 30, 1994, with the knowledge that the plaintiffs' activities may endanger the national existence and security or democratic fundamental order, the prosecutor produced and distributed a book "an understanding of the Korean society" for the purpose of assisting in the activities of the North Korean government organization, which is an anti-government organization, and indicted the plaintiffs as a violation of the National Security Act on the ground that he/she participated in the activities of the North Korean government organization by taking it as teaching materials.

C. On November 30, 1994, the defendant issued a disposition of removal (hereinafter referred to as "disposition of this case") against the plaintiffs pursuant to Article 73-2 (1) 4 of the former State Public Officials Act (amended by Act No. 4829 of Dec. 22, 1994).

2. The lower court determined as follows as to whether the instant disposition was unlawful.

Article 22 (1) of the Constitution of the Republic of Korea guarantees the freedom of study, and as one of the contents thereof, the freedom to teach or teach the students as a matter of course is not limited to such freedom, but it is not permitted to teach or teach the contents that deny or destroy the fundamental order of free democracy, which is the fundamental order of the Constitution. However, the plaintiffs are not charged for a general criminal case, but they are produced and distributed the above book with the knowledge that it may endanger the existence and security of the State or democratic fundamental order, and they are charged with the violation of the National Security Act by making the above book as teaching materials, and thus, it is difficult to view that the defendant was indicted for the violation of the National Security Act by taking it as teaching materials, and therefore, there is no error of abuse of discretionary power or deviating from such scope.

3. However, we cannot accept the judgment of the court below for the following reasons.

A. Article 73-2 (1) of the former State Public Officials Act provides that "the appointing authority shall not assign a position to a person who falls under any of the following subparagraphs: Provided, That no position shall be given to a person who falls under subparagraph 4, and subparagraph 4 provides that "a person who is prosecuted for a criminal case (excluding a person against whom a summary order has been requested)". According to the records, the plaintiffs applied for the adjudication of unconstitutionality to the court below on December 20, 1994 and requested the adjudication of unconstitutionality to the Constitutional Court on August 1, 1995. The provisions of the proviso prior thereto were amended by Act No. 4829 on December 22, 1994 and deleted, and the Constitutional Court made a decision of unconstitutionality (96Hun-Ga12) as to the provisions of the proviso above, and thus the disposition of this case has become invalid due to the invalidation of the provisions of the proviso as above, it seems that the disposition of this case has been unlawful.

B. However, Article 27 (4) of the Constitution provides that a criminal defendant shall be presumed innocent until a judgment of conviction becomes final and conclusive. The removal from position system under Article 73-2 (1) 4 of the former State Public Officials Act provides 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 with a final and conclusive judgment of conviction, there is a risk of undermining the fairness in the performance of public duties and the trust of the people. Thus, in order to prevent this in advance (see the above Order 96Hun-Ga12). In light of the principle of presumption of innocence under the Constitution or the above purpose of the removal from position system, removal from position can not be justified just on the ground that he/she was indicted in a criminal case. Whether a party is highly likely to receive a conviction falling under Article 33 (1) 3 through 6 of the State Public Officials Act, and whether the party's continuous performance of duties causes danger in fair performance of public duties should be determined by considering specific circumstances.

According to the records, at the investigation stage, the plaintiffs stated that the understanding of the Korean society is easy to understand the results of the king's research which interpreted the various issues of our society in terms of social science, and they did not have been written for the first purpose of benefiting the North Korean public policy group, and the contents also pointed out the contradictions of the Korean society and claimed the reform, and do not have the assertion of the revolution. At that time, the Changwon District Court dismissed the plaintiffs' request for detention warrant against the plaintiffs by taking into account the above change of lawsuits, etc., and further, the "interest of the Korean society" course on August 26, 1994, which was before the disposition of this case, was closed by the university authorities, and the defendant himself was also given a position again on January 3, 1995 as a result of the reexamination of the disposition of this case under Article 2 of the Addenda of the State Public Officials Act amended by the State Public Officials Act. Thus, the court below should have examined the above specific circumstances, and should have judged the illegality.

C. Nevertheless, as seen earlier, the court below held that the disposition of this case was not unlawful for the reason that the plaintiffs were indicted for violating the National Security Act, not merely a general criminal case, and thus, it did not constitute an abuse or deviation from discretionary power. The court below erred by misapprehending the legal principles as to Article 73-2 (1) 4 of the former State Public Officials Act or by failing to exhaust all deliberations, which affected the conclusion of the judgment. Thus, the ground of appeal

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-hee (Presiding Justice)