2012 Du9598 Demanding revocation of Disposition of Dismissal

A person shall be appointed.

The Commissioner of Seoul Local Police Agency

Seoul High Court Decision 2011Nu31668 Decided March 27, 2012

April 11, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

The lower court determined that, based on the facts and circumstances as indicated in its reasoning, based on its employment evidence, the Plaintiff was aware that B was the owner of an entertainment business at the time when B and B and sent text messages. Furthermore, the lower court determined that the Plaintiff’s act of communicating B with B by not reporting contact with B, despite being aware that B was the owner of an entertainment business at the entertainment business place, who is the object of contact, and not reporting contact with B by violating the instant instructions, and that the act of sending voice calls to B seven times after the instant instruction constitutes grounds for disciplinary action that constitutes a violation of the duty of good faith provided for in Article 56 of the State Public Officials Act.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are all justified, and contrary to the allegations in the grounds of appeal, there is no illegality that affected the conclusion of the judgment by exceeding the bounds of the principle of free evaluation of evidence.

In addition, the lower court’s determination that the Defendant’s instant disposition was lawful on the ground that the ground that the ground for the above disciplinary ground existed, cannot be deemed as going against the Constitution and the State Public Officials Act regarding the guarantee of public officials’ status, or infringing on the essential contents of

2. The issue of which disciplinary action is to be taken against a person subject to disciplinary action who is a public official as to Article 2 of the Reasons for Appeal is at the discretion of the disciplinary authority. Thus, in order for the disciplinary action to be unlawful, it is limited to the case where the person having authority to take the disciplinary action is deemed to abuse the discretionary authority, since the disciplinary action as an exercise of discretionary authority has considerably lost validity under the social norms. Whether a disciplinary action against a public official has considerably lost validity under the social norms should be determined by taking into account various factors, such as the characteristics of duties, the contents and nature of the offense causing the disciplinary action, the administrative purpose that the person intends to achieve through the disciplinary action, and the criteria for the determination of disciplinary action (see Supreme Court Decisions 97Nu14637, Nov. 25, 1997; 2006Du16274, Dec. 21, 2006).

In full view of the circumstances stated in its reasoning, the lower court determined that the instant disposition was not significantly unreasonable by social norms and was not excessively harsh, beyond the scope of the discretion of disciplinary action that was entrusted to the person having authority over disciplinary action.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there is no illegality that affected the conclusion of the judgment by misapprehending the principle of excessive prohibition, the principle of proportionality, and the legal principles on deviation and abuse of discretionary power.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk

Justices Yang Chang-soo

Chief Justice Park Poe-dae

Justices Go Young-young