[1] Whether a police officer’s filing of a petition on the facts of corruption by a police officer in competition under his/her name constitutes grounds for disciplinary action under Article 78(1)1 and 2 of the State Public Officials Act (affirmative)

[2] The standard for determining whether a disciplinary action against a public official constitutes deviation or abuse of discretion

[3] The case holding that disciplinary action in the first month of suspension from office against a police officer who submitted a petition on the corruption of a police officer in competition under the name of a person with no authority to take disciplinary action has exceeded discretion

[1] It can be justified that police officers become aware of the corruption and crime suspicion of the police officers, and report it to the appointing authority and the investigative officer to take appropriate measures (Article 234(2) of the Criminal Procedure Act provides that a public official should file a complaint when he/she finds a crime in the course of performing his/her duties). However, the submission of a petition by using the name of the deceased in the report of the corruption constitutes a violation of the disciplinary authority or exercising private rights even if the contents of the petition are true. In particular, a complaint against the police officers in competition with the police officers is a serious behavior that is not proper to be corrected under Article 7(2) of the Regulations on the Service of Police Officials, and it is sufficient to regard the act that violates the duty of good faith under Article 56 of the State Public Officials Act, and it constitutes grounds for disciplinary action under Article 78(1)1 and 2 of the State Public Officials Act.

[2] In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, it is at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take the disciplinary measure is deemed to abuse the discretion of the person having authority to take the disciplinary measure or to deviate from the scope of the disciplinary measure, taking into account various factors, such as the characteristics of the duty to take the disciplinary measure, the content and nature of the fact causing the disciplinary measure, the administrative purpose to achieve the disciplinary measure, and the criteria for disciplinary action, etc., which

[3] The case holding that disciplinary action during one-month period of suspension from office against a police officer who submitted a petition on the corruption of a police officer in a competitive position by using the name of a person with no permission, in light of the fact that the respondent who was found to have been subject to a disposition of minor reprimand, etc.

[1] Articles 56 and 78(1)1 of the State Public Officials Act, Article 7 subparag. 1 of the Regulations on the Service of Police Officers, Article 234(2) of the Criminal Procedure Act / [2] Article 27 of the Administrative Litigation Act / [1] Article 56 of the State Public Officials Act, Articles 78(1)1 of the State Public Officials Act, Article 7 subparag. 1 of the Regulations on the Service of Police Officers / [3] Article 27 of the Administrative Litigation Act / [3] Article 27 of the Administrative Litigation Act, Articles 56 and 78(1)1 of the State Public Officials Act, Article 7 subparag. 1

Plaintiff (Attorney Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Commissioner General of the National Police Agency

1. The defendant's suspension of one month against the plaintiff on February 27, 1998 shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts may be acknowledged in full view of the whole purport of the pleadings in the evidence Nos. 1 through 4, evidence No. 5-1, and evidence No. 5-2:

A. After being appointed as a policeman on December 28, 1972, the Plaintiff served as a police officer on June 30, 1997, and thereafter served as the guard of the Busan Regional Police Agency and the head of the operational division.

B. On October 10, 1997, the Defendant: (a) prepared a copy of the statement stating that “the Superintendent of the Busan Central Police Station Guard, who is the Director of the Busan Central Police Station, has received unjust money from other persons each month through the deposit account of the dominator who he knows; (b) sent it to the National Police Agency; and (c) on January 6, 1998, the Defendant was dismissed under Article 78(1)16 of the State Public Officials Act and Article 78(1)7 of the State Public Officials Act and Article 78(1)7 of the State Public Officials Act on February 19, 198, on the ground that “the above non-party 1 was taking a private test for the promotion examination in 193, but was disqualified, by sending it to the National Police Agency inspector and inspector, thereby impairing the dignity of police officers and impairing the unity of the police organization.” (d) On February 19, 1998, the Defendant dismissed the Plaintiff from office under the above resolution of the National Police Disciplinary Committee.

C. According to the plaintiff's request for review of the above dismissal, the Ministry of Government Administration and Home Affairs did not recognize the plaintiff's petition on January 6, 1998 among the disciplinary reasons in the above disciplinary action, but the plaintiff started to conduct an inspection and investigation with respect to the plaintiff's petition on October 197, and provided that the plaintiff shall report to the officer in charge of his own defense against the plaintiff, and that the plaintiff shall have consulted with the head of the Busan Local Police Agency's Office with regard to the contents of the petition before the plaintiff's petition, the reason for disciplinary action shall be excluded from the disciplinary ground for disciplinary action on October 10, 1997 (the Commissioner of the Korean National Police Agency sent to the Commissioner General of the Korean National Police Agency a written petition under his name without permission on October 10, 1997, which affected the dignity of the police officer and interfere with the unity of the police organization, and thus, it constitutes a ground for dismissal under Article 78 (1) 2 and 3 of the State Public Officials Act and Article 8 (17).7 of the above.

2. Whether the disposition is lawful;

A. Whether grounds for disciplinary action exist

(1) The plaintiff's assertion

The plaintiff asserts that the disposition in this case is unlawful on the ground that the fact of receiving money and valuables by the non-party 1 is not true in the name of the deceased Kim Jong-hee, and the grounds for disciplinary action do not exist.

(2) Facts of recognition

The following facts may be acknowledged in full view of the whole purport of the pleading in the statement of Eul evidence Nos. 1, 2 and 4, Eul evidence Nos. 3, 7, 13, 14, 15, and Eul evidence Nos. 5 and 6, and Eul evidence Nos. 1, 2, and 3 (excluding each part which is not trusted in the second part of Eul evidence Nos. 1-1 and 2), and contrary thereto, there is no other counter-proof unless it is believed that part of Eul evidence Nos. 1-1 and 2 is contrary thereto.

(A) On June 30, 1997, the Plaintiff was promoted to the Busan Regional Police Agency's office and worked as the operational leader of the Busan Regional Police Agency's office, and Nonparty 1, the director of the Busan Central Police Agency's guard department of the Busan Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency's Central Police Agency'

(B) However, the plaintiff and the above non-party 1 had a good appraisal due to minor problems, and among them, on October 10, 1997, the plaintiff prepared a copy of the statement that "In the name of Sosan-si, Busan-si, Kim Jong-hee, he was transferred KRW 400,000 per month to the Woo-si Tong-si." and sent it to the defendant.

(C) As a result of the investigation on the fact-finding, it was revealed that Nonparty 1, an employee of the above female, was wired the amount of KRW 35 to 400,000 per month from Nonparty 3, a building trader, who was well aware of it, through the bank account of Nonparty 2, who was an employee of the above female, and on the other hand, Kim U.S., a holder of the above petition, was an unqualified person, and the written entry of the petition was the same as the Plaintiff’s written entry.

(3) Determination

The plaintiff, who is a police officer, becomes aware of the corruption or crime suspicion of the police officer, and reported it to the appointing authority and the person in charge of investigation to take appropriate measures are acceptable (Article 234(2) of the Criminal Procedure Act provides that a public official shall file a complaint when he/she finds a crime in the course of performing his/her duties). However, the submission of a petition by using the name of the deceased in the report on the contents of the corruption would hinder the disciplinary authority or the exercise of the authority to take disciplinary action. In particular, the accusation against the police officer in competition with the police officer constitutes not only the leading act that was not corrected under Article 7(2) of the Regulations on the Duties of Police Officials, but also the act that was in violation of the duty of good faith under Article 56 of the State Public Officials Act, and it constitutes grounds for disciplinary action under Article 78(1)1 and 2 of the State Public Officials Act.

Therefore, the Plaintiff’s assertion that the instant disposition is unlawful is without merit.

B. Whether or not the discretionary authority is deviates or abused

(1) The plaintiff's assertion

The plaintiff asserts that the above non-party 1 who committed the misconduct was subject to a minor disciplinary measure, even though the contents of the petition were revealed to be true, and that the defendant was not liable to the petitioner, and that the plaintiff was not subject to a disciplinary measure while holding office as a police officer, and that the plaintiff was faithfully and cleanly working due to being given official commendation by the heads of agencies at various levels, etc. on several occasions, and that the disposition in this case was unlawful or deviating from the scope of discretion or against the principle of proportionality and equality.

(2) Determination:

In the case of disciplinary action against a person subject to disciplinary action who is a public official, it is at the discretion of the person having authority to take the disciplinary action. However, if it is recognized that the person having authority to take the disciplinary action abused the discretion of the person having authority to take the disciplinary action or deviates from the scope of the disciplinary action, taking into account various factors, such as the characteristics of the duty to take the disciplinary action, the contents and nature of the reason for the disciplinary action, administrative purpose to achieve by the disciplinary action, and the criteria for disciplinary action, etc., and thus, it is illegal.

However, as seen earlier, the Plaintiff’s filing of a petition to the Defendant by a method that the Plaintiff was unable to be corrected by using the name of a police officer who is an executive officer would violate the duty of good faith as a police officer and the duty of police officers. However, as a result of fact-finding as to the petition, the Plaintiff’s filing of the petition violates the duty of good faith as a police officer and the duty of service as a police officer. However, although it was revealed that Nonparty 1’s misconduct listed in the petition was replaced by facts as a result of fact-finding, he was subject to a minor disciplinary action, and it seems difficult to anticipate the Plaintiff’s real name due to the Plaintiff’s filing of the petition fee under his name in the same female book, and it seems difficult to expect that the Plaintiff’s filing of the petition is true, and considering the purport of the pleading as stated in the evidence Nos. 1, 2, and 15 of the evidence No. 15, the Plaintiff’s filing of the petition is unlawful as it deviates from the scope of discretionary power that has been remarkably lost by social norms.

3. Conclusion

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

Judges Gu-Appellee (Presiding Judge)