2012Guhap24344 The revocation of revocation of dismissal

○○ Kim (after 68 years)

Incheon Southern-gu

Law Firm Rois et al., Counsel for defendant-appellant

Attorney Kim Jong-soo, Maho

Director of National Intelligence

Government Legal Service Corporation (Law Firm LLC)

Attorney Seo Young-young and Kim Young-young

A litigation performer-at-law, the highest number of persons;

June 14, 2013

July 26, 2013

1. The Defendant’s dismissal disposition against the Plaintiff on December 7, 2011 is revoked.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

(a) Demotion disposition and the process of appeal against it;

(1) The plaintiff is appointed to the National Intelligence Service as Class 9 on June 15, 1992. On June 15, 1994, the plaintiff was admitted to Grade 6 on June 1, 2004.

on December 30, 2010, the National Intelligence Service employee, and the Plaintiff from the Defendant to the Incheon Free Economic Zone Authority.

Reasons such as abuse of official authority at the time of entry and violation of the defendant's non-employment or indirect activity instruction;

was demoted.

(2) The plaintiff is dissatisfied with the above demotion and on January 27, 2011, to the appeals review committee of the Ministry of Public Administration and Security.

A request for the review of a petition was made on June 22 of the same year, and a decision of dismissal was made on August 23, 201, and Seoul Administrative Law

In 201Guhap27674, the court filed an administrative litigation seeking the revocation of the above demotion.

(3) Before making a request for review of an appeal, the Plaintiff filed a petition from the National Intelligence Service employee.

The Regulations on Security Management of the National Intelligence Service (hereinafter referred to as the "Regulations on Security Management of the National Intelligence Service") shall apply only to the documents to be released.

C) He/she hears that a review of security under Article 82 should be conducted, and on January 27, 2011, the Defendant’s lawsuit is filed against the Defendant.

The request for a security review of documents, etc. related to the request for the request for review, but the result on the same day.

Before being notified, the appeals review committee shall make a written request for review of appeal, resolution on demotion, and disciplinary action;

The explanatory statement, etc. was submitted.

(4) On January 28, 201, the following day, the Defendant: (a) to the Plaintiff on January 28, 201; and (b) to examine the description and petition of the disciplinary action.

There is a possibility that the National Intelligence Service may be mistaken for unauthorized access to personal information in the request.

An expression or unnecessary description of the internal trend of the National Intelligence Service and the organization is exposed.

Since this part is in part, it would be better to remove it or to submit it after the treatment of the clinic.

On the other hand, the notice of the results of the examination of the above security nature has also been given.

The name of the employee was written.

(5) The plaintiff filed a lawsuit to revoke the revocation of the disposition of demotion, and the appeals review committee in the Seoul Administrative Court.

the documents submitted to the court without filing a non-d clinic treatment in accordance with the findings of the examination of the above security nature;

It was submitted, and it was also submitted after notification of the results of the above security examination.

(6) The Plaintiff is suspected of violating the Security Management Regulations on November 7, 201 and the 8th of the same month.

It has been investigated by the employee, and changes such as requesting the attorney-at-law to participate in the investigation in the process.

The right to assistance of the counsel has been claimed, and the personnel in charge of the above investigation shall be subject to disciplinary action.

It is merely an administrative investigation for the vehicle and there is no right to have the assistance of counsel for the plaintiff.

We rejected the Plaintiff’s right to assistance of counsel, if it was infringed on by the Plaintiff.

The statements were rejected.

B. The disciplinary procedure of this case

(1) On December 5, 201, National Intelligence Service General Disciplinary Committee (hereinafter “National Intelligence Service General Disciplinary Committee”)

Intentional act (amended by Act No. 11103, Nov. 22, 201)

Article 17 (Keeping Confidentiality), Article 56 (Duty of Good Faith) of the State Public Officials Act, and Article 56 (Duty of Good Faith) of the Security Management Regulations.

Article 82 (Statement, Testimony, etc. of Details Related to Duties) and the Inspection Operating Rules of the National Intelligence Service (hereinafter referred to as the "Inspection Operating Rules")

Article 12 (Interference with Investigations) (Article 24 subparagraph 1 of the Staff of National Intelligence Service Act)

A decision to dismiss the Plaintiff on December 7, 201, which constitutes grounds for disciplinary action, and the Defendant removed the Plaintiff on December 7, 201.

The measure taken was taken.

The review of appeals against the disposition of abuse of authority and the demotion of violations of instructions for non-laboring and indirect activities;

Claim

- - A request made prior to the completion of the security review of the NIS-related material on the petition

Unauthorized Submission

- As a result, whether it is likely that the National Intelligence Service would be mistaken for access to personal information indiscreetly.

exposure to the petition, including the matters of the original organization, internal trends, etc.

6. After the dismissal of the petition, the plaintiff's appeal is dismissed, and the appeal is dismissed, and the appeal is dismissed and the appeal is dismissed.

Lawsuits

- The results of the security examination of 00 rooms as well as the materials submitted at the time of appeal to the Seoul Administrative Court

No. 1 (b) without permission, to remove and submit an internal public door.

* The head of the ○○ OO team requires the plaintiff to refer to the preparation of the petition documents, * the head of the ○○ O team

Delivery as the proviso of 'Prohibition of Removal'

- As a result, the draft written statement of the OO room, the real name (three persons) and post of the official approval (OO office chief) recorded in the official document;

(i) the result of the exposure as is;

◎ 또한 , ○○실 조사 과정에서 변호인 조력권 침해 · 보복조사 등을 주장하는 한편 , 절

refusal to make statements and interference with investigation while raising an objection to the tea, method, etc.;

(2) The plaintiff is dissatisfied with the above removal disposition and makes a request for review to the appeals review committee of the Ministry of Public Administration and Security.

The appeals review committee was a determination that the dismissal of the above dismissal on June 29, 2012 would be changed to the dismissal of the appeal review committee.

(hereinafter referred to as the "disposition" of this case, which was reduced by dismissal (hereinafter referred to as the "disposition of this case")

(c) ;

【Uncontentious facts, Gap’s evidence 1 through 8, 15, and Eul’s evidence 1 through 4 (with several numbers)

the purpose of each entry, as a whole, of the entire pleadings; and

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Regarding the existence of grounds for disciplinary action

(A) The assertion that the underlying statute itself of the instant disposition itself is unconstitutional and illegal

1) Article 17(2) of the former Staff of the National Intelligence Service Act

former Staff of National Intelligence Service Act (amended by Act No. 7012, Dec. 30, 2003);

2) Of Article 17(2), “An employee (including a retired employee)” is a party to the instant case’s confidential information as a party to the instant case

When a statement is to be made on the matters under the jurisdiction, it shall be subject to prior permission of the president.

11. 28. Constitutional Court’s “The importance and degree of national interest to the permission of the Director of the National Intelligence Service”

The strict requirements should be established on the basis of the inevitability of non-disclosure, and compliance with this requirement

Although it is necessary to ensure that judicial control over whether it is possible to do so, national information is required.

The Director does not at all set forth the requirements to be observed in the disposition of nonpermission; and

The control through judicial remedies, such as filing of administrative litigation, is practically impossible.

The decision of inconsistency with the Constitution was made on the ground that it infringed the right to trial under the Constitution (2001Hun-Ga28).

Accordingly, on December 30, 2003, "the president shall decide whether to grant the above permission" by Act No. 7012 of December 30, 2003

In doing so, serious effects on national security, such as military, diplomatic, and inter-Korean relations, are detrimental to the national interest;

section 17, Paragraph 4, etc. of the terms "shall not refuse to grant a license, except in such case."

However, the court held that the defendant's non-permission disposition required by the above decision of the Constitutional Court

Since the control measures have not yet been prepared, the employees of the National Intelligence Service in spite of the amendment of the above Act.

The unconstitutionality of Article 17(2) of the Act cannot be deemed to have been fully removed. Accordingly, the above provision of the Act cannot be deemed to have been fully removed.

The underlying law of the instant disposition cannot be the basis for the disposition.

2) Article 82(1) of the Security Management Regulations

Article 82(1) of the Regulations on Security Management of National Intelligence Service Employees Act

in spite of the specification of its contents and procedures, beyond the content prescribed in the above provision of the law, the people

Article 82 of the Security Management Regulations is an unconstitutional provision that excessively infringes on the right to trial.

1 Unlike the above legal provisions, the scope of statements that require permission from the Director of the National Intelligence Service is "occupationally"

testimony or testimony, which is not a "confidential", is extended to "matters related to the duties", and which is also subject to the permission; or

If a statement is to be made, ‘the submission of documents' is to be made, ‘the submission of documents' is to be made, and the statement for which permission is required.

In addition, the commercial organization is also expanding to the whole "State agency" other than the court. Accordingly, the above provision is applicable.

The provision also cannot be a ground provision for the disposition of this case.

3) The assertion that Article 12 of the Rules on Inspection Work is illegal

Article 24 of the Staff of the National Intelligence Service Act limits the grounds for disciplinary action against the employees of each subparagraph.

subsection (1) of this section is listed, which is a separate request for disciplinary action without delegation by a superior statute.

Inasmuch as a ground is created, it is null and void against the principle of statutory reservation. Accordingly, the above provision also applies.

No provision of the instant disposition may be the basis for the instant disposition.

(B) The assertion that Article 17 of the former Staff of National Intelligence Service Act was not violated

Article 17 (1) of the former Staff of the National Intelligence Service Act provides that "All employees shall be retired from office as well as in office.

Even after that, it shall not divulge any confidential information which comes to his knowledge in the course of performing his duties.

However, a resolution on resolution submitted by the plaintiff to the appeals review committee and court, disciplinary action

Explanations, etc. are documents acquired by the Plaintiff in the course of protesting against the disciplinary action.

It can not be seen as having come to know in the course of performing his duties.

In addition, the National Intelligence Service listed in the notification of the examination results of each of the above documents or security;

organization of the NIS, personal information of its staff, internal trends of the NIS, etc. are already well known or well-known.

The notification of the results of the examination of the security nature is not an external document but an ordinary document.

The document in the form is delivered without any restriction from the defendant's employees.

Therefore, the plaintiff submitted the above documents to the court, etc., and the "confidential" under the above provision of the law is confidential.

disclosure is not considered to have been a "disclosure".

Therefore, the Plaintiff cannot be deemed to have violated Article 17 of the former Staff of National Intelligence Service Act.

(C) A claim that does not constitute grounds for request for disciplinary action under Article 12 of the Rules on Inspection and Inspection.

The plaintiff did not comply with or interfere with the response or investigation stipulated in the above provision;

Even if the plaintiff's act was done so, it shall exercise the right to assistance of counsel.

The grounds for the request for disciplinary action under the above provision are deemed to have been justifiable and reasonable.

subsection (1) of this section.

(2) With respect to a disciplinary action

Even if the grounds for disciplinary action as seen earlier are recognized, the Plaintiff’s act stated in the grounds for disciplinary action.

In light of the circumstances leading up to the above, the disposition of this case, which issued a heavy disciplinary measure of dismissal, shall width.

Cruelly, it is illegal to deviate from and abuse discretionary power.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

(1) Regarding the existence of grounds for disciplinary action

(A) As to the assertion that Article 17(2) of the former Staff of National Intelligence Service Act is unconstitutional

Constitutional Court Order 201Hun-Ga28 dated November 28, 2002, dated December 30, 2003

§ 7012. "To impair national interest or military interest when the president decides whether to grant such a license;

Denial of permission, except in cases of significant impact on national security, such as diplomatic relations and inter-Korean relations.

section 17(4), etc. of the National Intelligence Service Staff Act shall not be amended with the content of “Article 17(4).”

The defendant granted a license under Article 17(2) under the newly established section 17(4).

have presented clear requirements for not giving rise to such requirements.

party against whom such non-permission is granted shall file an administrative action against the defendant's non-permission disposition.

It can be seen that the effective protection has been granted to a person who is subject to judicial relief on a arbitrary measure.

Therefore, in contrast to this, the judicial control measures against the defendant's non-permission disposition have been established.

Therefore, despite the above amendment, Article 17 (2) of the former Staff of National Intelligence Service Act is unconstitutional.

We cannot accept the Plaintiff’s assertion that the Plaintiff did not accept.

(B) As to the assertion that Article 82(1) of the Security Management Regulations is unconstitutional

First of all, Article 17 (2) of the former Staff of National Intelligence Service Act requires the permission

‘Court' is apparent and apparent in its language that it is not limited to ‘court' and that it is not limited to ‘law' in paragraph 3 or 6 of the same Article.

subsection 5 of this section shall be located within the same section, with the content irrelevant to the court, even if the reference is referred to in the original section.

In light of the fact that the above statement is limited to the "court", it cannot be interpreted that the above statement is limited to the "court".

In addition, submission of documents is accompanied by the statement as a party to the case to the court, etc.

section 272(1), section 273, and section 274 of the Civil Procedure Act;

§ 275. The parties shall prepare and submit arguments in writing accompanied by the method of evidence and accompanying documents.

shall be served on the other party, and such legal brief shall be served on the other party, and shall be civil

section 148(1) of the transmission Act may be deemed to have stated the matters described in the document by the party.

(2) In order to prevent the disclosure of secrets, the disclosure shall not be made in such a manner.

Since it is deemed necessary to review the security of documents, it is subject to permission under the above provision of the law.

(1) In the case of a statement referred to in subsection (1) of this section, it shall include "in the case of submission of a document to make a statement"

It is reasonable to interpret that the clause is "in case of submitting documents". Therefore, in case of submitting documents in the above clause, the presumption of "in case of submitting documents"

However, it can not be said that there is a problem of unconstitutionality or illegality.

On the other hand, the scope of statements required to be obtained from the defendant is "occupationally" in the legal provision.

On the contrary, the above provision provides that "the matters concerning secrets" are "the matters concerning official duties".

The content is stipulated as ‘content', but the department to which the employee is to make a statement and give testimony under Paragraph 2 of the above Regulation.

The head of (in the case of a retired person, the head of the department to which the original employee belongs) or the head of the department in charge of related cases shall

Before receiving any of the following materials, ○○○○ for the contents of statements and testimony:

The duty to give testimony or make a statement under subparagraph 2, while providing that the duty to give testimony or make a statement.

The contents and scope of the confidential information in the Act, and in light of the system of the above provision, the disclosure must be made.

section 82(1) of the Regulations on Security and Management of Administrative Affairs provides that "the contents related to the duties" shall be defined as "the official secrets."

Paragraph B shall be deemed to refer to Paragraph B, so this part also has a problem of unconstitutionality or illegality.

shall not be deemed to exist.

Ultimately, we cannot accept all of the plaintiff's arguments against this point.

(C) As to the assertion that Article 12 of the Rules on Inspection Work is illegal

A request for submission of data or reply necessary for the inspection and investigation, and other relevant regulations;

The failure to comply with the provisions of Article 57 of the State Public Officials Act without any justifiable reason shall be deemed to have been made.

It is difficult to deem that he/she violates his/her duty or violates his/her duty.

section 24 of the National Intelligence Service Staff Act provides for the reasons for the disciplinary action.

It is reasonable to see that it is nothing more than that.

Therefore, Article 24 of the Staff of the National Intelligence Service Act without delegation of superior laws and regulations

The plaintiff who creates a new ground for request for disciplinary action and thus is null and void against the principle of legal reservation.

We cannot accept the argument.

(D) As to the assertion that Article 17 of the former Staff of National Intelligence Service Act was not violated

Article 17 (1) of the former Staff of the National Intelligence Service Act provides that "All employees shall be retired from office as well as in office.

shall not disclose any confidential information which comes to their knowledge in the course of performing their duties even after such disclosure, and Article 32 of the same Act

Any person who violates the provisions of Article 17 shall be punished by imprisonment for not more than 10 years or by a fine not exceeding 10 million won.

"A secret here" is defined as one of the requirements, and is not a secret.

information that is not known to the court and needs to be substantially protected as a confidential information;

On the other hand, the above crime does not protect the confidentiality itself, but the confidentiality of the National Intelligence Service staff.

Benefits in danger by infringement of obligations, i.e., a country threatened by the divulgence of secrets;

The scope of the secret is to protect the function of the people, and the scope of the secret is within the freedom of expression of the people.

to the minimum extent necessary so that the territory of the right to know may be expanded to the maximum extent;

Supreme Court Decision 2003Do5547 Delivered on November 28, 2003).

In light of the above legal principles, among the grounds for disciplinary action of this case, the National Intelligence Service’s National Intelligence Service No.

Sector has disclosed any information that could be mistaken for access to personal information in a separate manner;

Sector It is difficult to see that the disclosure of the foregoing matters may threaten the function of the State.

Therefore, it cannot be viewed as a "disclosure of secrets" as referred to in the above provision.

However, the organization and position of the NIS, the real name and internal trends of its staff members, etc.

Overseas information and domestic security information (with respect to counter-defenses, counter-defenses, counter-terrorisms, and international criminal organizations)

2) Details and scope of duties of the NIS including collection, preparation, distribution, etc. (National Intelligence Service)

In light of Article 3(1)(see Article 3(1)), if the above facts are leaked, the circumstances of the National Intelligence Service.

threat to the function of the State or the National Intelligence Service by hindering information collection activities, etc.

of the documents, regardless of whether the documents were obtained, or whether the documents were confidential or not.

An act of exposing a document containing the same content to the appeals review committee or court

It is reasonable to see that the above falls under the “disclosure of secrets” as referred to in the provision. In addition, such secrets are classified as above.

As the Plaintiff obtained in its disciplinary proceedings, the Plaintiff came to have become aware of it in the course of its duties.

There is no difficulty in viewing.

Therefore, this part of the plaintiff's assertion is justified.

(E) As to the assertion that it does not constitute grounds for request for disciplinary action under Article 12 of the Rules on Inspection and Inspection

The plaintiff asserts the right to assistance of counsel and refuses to make statements at the time of inspection and investigation.

and as mentioned above, the constitutional rule of law, the due process principle, and the due process of law.

the right to assistance of counsel recognized by the State is against the unilateral exercise of the State's penal power.

Since it is the right of a suspect or defendant for the purpose of appeal, in general, the disciplinary procedure of a public official

The defendant's assertion that the right to receive assistance cannot be guaranteed naturally is the same as the defendant's argument.

However, it is suspected that the Plaintiff violated Article 17 of the former Staff of National Intelligence Service Act at the time.

Article 32 of the former Staff of the National Intelligence Service Act provides that "Any person who violates the provisions of Article 17" shall be subject to investigation.

A person who violates Article 17 by providing that he/she shall be punished by imprisonment with labor for not more than ten years or by a fine not exceeding ten million won.

Article 3(1)4 of the National Intelligence Service Act provides for criminal punishment against the above, and Article 3(1)4 of the National Intelligence Service Act provides for the State.

(1) The Information Institute is also an investigative agency to investigate a crime related to the duties of an employee.

Therefore, an investigation into a violation of the above provision of the law is not an investigation into a suspect, but an administrative investigation.

In substance, the nature of the investigation and the investigation for criminal prosecution for the reasons for the disciplinary action is limited.

It should be deemed that there exists a thickness.

Then, the National Intelligence Service’s investigation into a violation of the above legal provisions

Inasmuch as the Plaintiff, a deceased person, guarantees the right to assistance of counsel, the Plaintiff as above.

the Board of Audit and Inspection to refuse to comply with the investigator's request for reply and to refuse to make a statement because the rights are infringed.

It is reasonable to view that there was a "justifiable cause" under Article 12 of the Regulations.

Therefore, this part of the grounds for disciplinary action does not exist, and the plaintiff's states pointing this out.

The head of the Gu shall have reasons.

(2) With respect to a disciplinary action

The above disposition's grounds or evidence revealed in the above judgment, or the above evidence's argument

In addition to the overall purport, the disciplinary action of this case, as seen above, shall be taken as follows:

Some of the grounds are judged to be nonexistent, and the act of misconduct in this case is judged to be nonexistent by the plaintiff.

(2) The notice submitted by the Plaintiff to the appeals review committee or the court, in particular

Although the document, such as a statement of reasons for disposition, must not be partially disclosed, the plaintiff

that constitutes evidence essential for disputing the disciplinary action against the person, and that is subject to the disclosure of confidential information;

In full view of the fact that the appeals review committee or legal cause is not an unspecified person, the instant case

Since the disposition is too harsh than the plaintiff's misconduct, there is an error of deviation or abuse of discretion.

(c)

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition.

shall be ruled.

Judges Choi Young-young

Judges Park Jong-il

Judges Dok-hee

1) After the Seoul Administrative Court rendered a judgment against the Plaintiff on February 17, 2012, the Seoul Administrative Court rendered a judgment against the Plaintiff, but the Seoul High Court, the appellate court, on January 19, 2013, held that the Seoul High Court was no longer than 2012Nu7327.

The judgment of the court of first instance was revoked, and the judgment in favor of the plaintiff was rendered, and the Supreme Court of final appeal dismissed the defendant's appeal as of May 9, 2013 by the Supreme Court No. 2013Du3245.

was.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.