A resolution of disciplinary action against a local public official who is subject to a resolution of disciplinary action shall be effective in removal from his/her position when the resolution of disciplinary action is made or the resolution of disciplinary action is revoked.

The purport of Article 65-2 and Article 65-1 (1) 2 of the Local Public Officials Act that no position may be assigned to a “person who is required to make a disciplinary decision” is interpreted to the effect that no position may be assigned only while a disciplinary decision is required. Thus, if a disciplinary decision is made after the removal or a disciplinary decision is revoked, the above removal from position shall be invalidated

Articles 65-2 and 65(1)2 of the Local Public Officials Act

Supreme Court Decision 77Nu148 Delivered on December 26, 1978

[Defendant-Appellee] Plaintiff 1

Busan City Mayor (Attorney Seo-chul et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 77Gu68 delivered on July 20, 1978

1. Of the judgment below, the part on the Plaintiff’s failure is reversed, and that part of the case is remanded to the Daegu High Court.

2. The defendant's appeal is dismissed.

3. The costs of appeal brought by the defendant shall be borne by the defendant.

1. First, we examine the Plaintiff’s attorney’s grounds of appeal.

According to the reasoning of the judgment below, the court below stated that the defendant's removal of this case against the plaintiff is an unlawful or unjustifiable disposition that deviates from discretionary authority, and that the plaintiff's removal based on the same fact is subject to disciplinary resolution at the time of removal, while maintaining the same fact, and thus, this constitutes a ground for removal from position as stipulated in Article 65-2 (1) 2 of the Local Public Officials Act, and therefore, the removal from position is valid.

However, according to Article 65-2 (1) 2 of the Local Public Officials Act, a position may not be assigned to a "person who is required to make a disciplinary decision," and it is reasonable to interpret that no position may be assigned only during the period in which a disciplinary decision is required. Thus, if a disciplinary decision has been made or a disciplinary decision has been revoked, removal from position under the above provision shall be deemed to lose its effect.

In addition, if a disposition of deprivation of the status of a public official is taken for the same reason as the reason for the removal from position, it is reasonable to interpret that the disposition of removal from position should lose its effect (Supreme Court Decision 77Nu148 delivered on December 26, 1978). In this case, if the disposition of removal from position against the plaintiff is cancelled based on the same fact on the ground that the disposition of this case is "a person who is in need of the disciplinary decision", the above disposition of removal from position should have been cancelled, the above disposition of removal should not be deemed to lose its effect and should have been cancelled. However, the court below revoked the disposition of this case against the plaintiff on the ground that it cannot be recognized that the disciplinary action of this case is "a person who is in need of the disciplinary decision" and maintained it as it is on the ground that it is "the person subject to the disciplinary decision" under Article 65-2 (1) 2 of the Local Public Officials Act, but it does not err and adversely affect the judgment by misunderstanding the legal principles on the relation between the removal from position.

It is reasonable to point out this issue.

2. Next, we examine the grounds of appeal No. 1 by Defendant’s attorney.

The purport of the theory is that the court below erred in collecting and rejecting non-refluent evidence that the court below cannot obtain due to a mistake in the evaluation of the evidence, and that there was a wrong fact-finding, and it cannot be accepted as such because it did not seem to criticize the whole matters of the court below concerning the deliberation of evidence and fact-finding from its own opinion.

We examine the second ground for appeal.

Nos. 3-1 and 3-2 of the theory of lawsuit is a documentary evidence submitted by the defendant and it is clear that the plaintiff denied the purpose of the proof while recognizing the authenticity of the lawsuit. Therefore, if the purpose of the proof is unclear, the liability to clarify it is the defendant who submitted it as a supporting material, and as long as it is not found that the contents are unclear, it cannot be said that the court bears the responsibility to clarify what is the purpose of the proof like the theory, and in addition, it cannot be said that there is no illegality in the judgment below's failure to exercise the right to explain, and it cannot be said that there was an error of failing to exhaust all the necessary deliberations like the theory of lawsuit. Thus, this issue cannot be accepted as it is without merit.

The ground of appeal No. 3 is examined.

In accordance with the reasoning of the judgment below, it is not difficult for the court below to hold out that "le-type and his wife received all of the loans from the plaintiff on November 13, 1976, including the total amount of KRW 1,000,000,000 and interest not paid up to that time," as stated in the reasoning of the judgment below, the court below did not err in holding that the total amount of the principal and the interest not paid up to that time was received. Thus, the court below did not err in the misapprehension of the reasoning of the judgment of the court below that there was a civil petition against the plaintiff in relation to this case, since the above explanation of the reasoning of the judgment of the court below is concerned with the possibility that the interest was unlikely to receive the loan from the plaintiff as to this case, and that there was a civil petition against the plaintiff before the Busan City Mayor.

In this regard, we cannot accept this issue as without reason.

3. Accordingly, the Plaintiff’s appeal is with merit, and the Defendant’s appeal is without merit. Therefore, the part against the Plaintiff among the judgment below is reversed and remanded, and the Defendant’s appeal is dismissed. The costs of appeal arising from the Defendant’s appeal are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-young (Presiding Justice)