2012Guhap4106 Suspension of Disposition of Suspension

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Not more than 50 Gong140

Law Firm Newly Inserted by Presidential Decree No. 2010

[Defendant-Appellant]

The Superintendent of the Office of Education of Chungcheongnam-do

Attorney Han-do et al., Counsel for the defendant

January 23, 2013

February 18, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of suspension from office against the Plaintiff on July 18, 2012 is revoked for one month.

1. Details of the disposition;

A. From July 1, 2009 to August 30, 2010, the Plaintiff served as the officer in charge of general affairs and personnel affairs of the Office of Education in Chungcheongnam-do, Chungcheongnam-do, and on September 1, 2010, the Plaintiff was promoted to a local administrative office and served in the Office of Education in the area of Seosan-do, Chungcheongnam-do, Chungcheongnam-do, and currently, through the official gazette officer, via the official gazette officer.

B. On July 18, 2012, the Defendant was subject to disciplinary action by the Board of Audit and Inspection upon request of the competent personnel committee, and was subject to disciplinary action for one month of suspension from office against the Plaintiff pursuant to Article 69(1)2 of the Local Public Officials Act on the ground that the Defendant violated the duty of good faith under Article 48 of the Local Public Officials Act (hereinafter “instant disposition”).

Grounds for Disciplinary Action

1) Unfair processing of work performance rating for the first half year 2009.

원고는 근평 확인자인 ■■■ 부교육감이 근평 ( 안 ) 에 대해 확인을 소홀히 한다는 점을

by using the policy of the Deputy Superintendent of the Office of Education at that time, Class 5(1)(1)(1)(1)

As a result of promotion, the Do governor shall agree with the Do governor, and the order of priority 21 in the list of candidates for promotion (1)

(1) ① The 15 person prior to the 15 person prior to the 1st order shall have no standard to determine the 15 person prior to the 2nd order.

In addition, the number of 13 persons who have been cut and engaged in shorter than 13 years of experience has been drawn up to 'the number' and 'the number', and the origin has been drawn up to 'the number', respectively.

J 1 4.5 points to 63.6 points to 5.5 points to the preceding grade point, 59.5 points to be the grade point, 1 year.

He has secured the merit points favorable to his promotion.

2) Unfair processing of work performance rating in the second half of 2009.

The plaintiff is promoted to Grade IV 4, respectively, Do Governor Do Governor affiliated with the Students Training Center and Do governor-gu affiliated with the Audit Party.

시켜 주기로 총무과장 ◎◎◎과 미리 합의하고 ■■■ 부교육감에게 구두 보고 후 교

The warning disposition of Do Governor Do Governor and the order thereof shall be the first and the third order, respectively, for the reason of involvement in the election at the bar.

In order to mislead above, the rating point of 19 persons in competition shall be cut and the experience shall be shorter.

21 The evaluation of the 21 person has been arbitrarily drawn to 'Woo', and the plaintiff himself/herself on September 4, 2010.

68.8.8 was drawn to 8 points in favor of promotion.

3) Unfair conduct of work performance rating for the first half year 2010.

As above, the Plaintiff’s 17 assessment points that the Plaintiff gave a low rating point to promote a specific person as above.

In other words, 16 persons who have been given a high rating point, who have been given a high rating point, have been reduced in the rating grade.

(1) In order to promote △, ○○, ○○, and ○○ City in the three times of the above, during the following three times: (1) in order to promote the said terms and conditions;

In the course of arbitrarily adjusting the number, the plaintiff himself gave a higher score (63. 6, 68. 8).

In relation, if the average promotion period of class 4 is less than half of 11 and 6 months, he/she shall be granted a prize for five years and 6 months.

Jin, appointment has been made.

C. On July 23, 2012, the Plaintiff filed a petition review against the instant disposition. However, the Education Review Committee for Local Public Officials in Chungcheongnam-do, Chungcheongnam-do, dismissed the petition on August 27, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-1, 2, 3, and 13-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The non-existence of grounds for disciplinary action

Since the performance rating has an absolute influence on promotion, it has been performing a work evaluation by reviewing first and making a work evaluation. The duty of evaluating work performance in the second and second half of the year 2009 and the first half of the year 2010 is conducted through consultation with the chief of the general affairs division, the director of the planning and management bureau, and the vice superintendent of the board of education in accordance with the above practices, and the Plaintiff is not a arbitrary or leading duty of evaluating work performance. It was true that the Plaintiff promoted to Grade 4 only for five and half years after the Plaintiff was promoted to Grade 5, but the Plaintiff was excluded from the promotion examination for Grade 6 through Grade 5, and the Plaintiff was later promoted to Grade 5 after the promotion examination for four years after the date of promotion to Grade 6 through Grade 5. Considering these circumstances, the Plaintiff’s duty of evaluating work performance in the first half and second half of the year 2009 is not unreasonable. In light of such circumstances, all of the grounds for the disciplinary action in this case cannot be deemed legitimate.

2) Grounds for deviation from and abuse of disciplinary discretion

Even if there is a cause for disciplinary action against the Plaintiff, in light of the following: (a) the Plaintiff merely dealt with the work in accordance with the Plaintiff’s mere instruction as a person in charge of the work; (b) the Plaintiff faithfully served during that period and received commendation from the Prime Minister; and (c) the head of the General Affairs Division was subject to minor disciplinary action even in the case of other similar cases; and (b) the instant disposition of suspension from office, one month of heavy disciplinary action, which was chosen for the Plaintiff, was excessively harsh; and (c) the instant disposition of the Plaintiff was against the principle of excessive prohibition, etc.

B. Determination

1) Determination as to whether there are grounds for disciplinary action

If the purport of the entire argument is added to the statement in Eul Eul evidence 1 and 2, the rules of education for the evaluation of local public officials of Grade V or below shall be the evaluation of work performance and job performance by referring to the contents recorded in the plan for the performance of public officials and the work performance report, the results of observation on the performance of the public officials subject to the evaluation during the evaluation period, and the results of observation on the performance of the work performance of the public officials subject to the evaluation during the evaluation period, and where there are two or more evaluators, the confirmation person shall adjust the order of the public officials subject to the evaluation and determine the final order by adjusting the order of the public officials subject to the evaluation in consideration of the difference of the evaluation points arising between the evaluators after consultation with the evaluators. Nevertheless, the plaintiff, as an official in charge of personnel management, has been engaged in the work evaluation three times from the first half of the year 2009 to the first half of the year 2010 and has been engaged in the work evaluation by arbitrarily adjusting the evaluation points of the persons subject to the evaluation in order to promote the specific persons.

If Gap evidence Nos. 3-1, 2, 6, and 12 are added to the witness testimony, and if the whole pleading is taken on the witness witness testimony, it can be acknowledged that the above measures were conducted as part of the previous evaluation method (the evaluation method that has been adjusted so that the order of promotion of promotion candidates can be determined by heat) in which the above measures had been taken as part of the plaintiff's assertion, and that the plaintiff was not the sole person, but the fact that the plaintiff could be recognized by integrating the above evidences. However, the following circumstances can be recognized that the plaintiff's act should be eradicated as harming the foundation of the evaluation system, i.e., the plaintiff's act is an illegal act that must be eradicated as harming the work evaluation system, and ii) the plaintiff's act of faithfully performing the duty of promotion by considering the fact that the plaintiff violated the duty of promotion to local government by using a method different from the method of actualizing the possibility of his winning in the first half of 2010 in the process of performing such work.

Therefore, this part of the Plaintiff’s assertion is without merit.

2) Determination as to whether disciplinary power has been exceeded or abused

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure shall be taken at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure as the exercise of discretionary authority has considerably lost validity and thus the person having the authority to take the disciplinary measure has abused discretionary power, the disciplinary measure against a public official shall be unlawful. The disciplinary measure against a public official has considerably lost validity under social norms, depending on the specific cases, the contents and nature of the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, the criteria for the determination of disciplinary action, and other various factors, shall be objectively and objectively unfair. The disciplinary measure shall be recognized (see Supreme Court Decision 2006Du16786, Jun. 23, 2009).

According to the evidence No. 11 as to this case, the plaintiff's act was deemed to have been subject to a more minor disposition against the plaintiff's improper conduct of work rating in a similar manner, but as seen earlier, it is an illegal act to be eradicated as harming the foundation of the work rating system, and ② it is more difficult to improve the illegal conduct if a certain illegal act has been committed previously, even if a certain illegal act is committed previously, it would be necessary to take an appropriate disciplinary measure corresponding to the illegal act. ③ In full view of the following, it is difficult to view that the disposition of this case, which ordered the plaintiff to suspend duty for the plaintiff for the reason that the plaintiff significantly lost validity in the process of performing such work, and there is no other evidence to acknowledge it otherwise.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is decided as per Disposition.

Judges Kim Jong-ri

Judges Kang Jin-hee

Judges Jeon Jae-il