[1] The meaning of "collective activity for activities other than public service" in the main sentence of Article 58 (1) of the Local Public Officials Act

[2] The limit of discretion of the disciplinary authority and the standard for determining whether the disciplinary action was abused when the disciplinary action is taken against a public official

[3] In a case where the person having authority to take disciplinary action was dismissed for violating the duty of prohibition of collective action as stipulated in Article 58 of the Local Public Officials Act on the ground that the head of the secretariat of the above union branch, who visited the company house of the market with ten members of the Korean Public Officials' Union in order to express his opinion on the draft amendment of the Local Public Officials' Service Ordinance, the case holding that the disciplinary action cannot be deemed as a deviation from the limit of the authority to take disciplinary action or an abuse of

[1] Article 58 (1) of the Local Public Officials Act, Article 21 (1) of the Constitution / [2] Article 69 of the Local Public Officials Act, Article 27 of the Administrative Litigation Act / [3] Articles 58 (1), 69, and 70 of the Local Public Officials Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 90Do2310 decided Feb. 14, 1992 (Gong1992, 1078) Supreme Court Decision 2004Do5035 decided Oct. 15, 2004 (Gong2004Ha, 1904) / [2] Supreme Court Decision 98Du6951 decided Nov. 26, 199 (Gong2000Sang, 73) Supreme Court Decision 2006Du19211 decided May 11, 2007

Plaintiff [Law Firm LLC, Attorneys Kim Hong-chul et al., Counsel for the plaintiff-appellant-appellant-appellant]

Head of Yeongdeungpo-gu Seoul Metropolitan Government (Attorney Kim Tae-young, Counsel for the defendant-appellant)

Daejeon High Court Decision 2006Nu239 decided Oct. 19, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the act of locating in the company house

The main text of Article 58(1) of the Local Public Officials Act provides that "no public official shall engage in any collective act for any work other than labor campaign or public service." The term "collective act for any work other than public service" refers to any collective act conducted by public officials for any work that does not belong to public service, not all collective acts conducted by public officials, but the legislative purport of Article 21(1) of the Constitution and the Local Public Officials Act, which guarantee the freedom of speech, publication, assembly, and association, the duty of good faith and duty of care under the Local Public Officials Act, etc., shall be comprehensively taken into account, and "collective act that may affect the failure of duty of care for any purpose contrary to public interest" (see Supreme Court Decision 2004Do5035, Oct. 15, 2004, etc.)

In full view of the facts stated in its reasoning, the lower court is justifiable to have determined that the act of the Defendant, etc. constitutes a collective act that affects the duty of care for the purpose of violating the public interest as prohibited by Article 58(1) of the Local Public Officials Act, and it does not err by misapprehending the legal principles as to collective action by public officials, contrary to the allegations

The Plaintiff’s remaining grounds of appeal as to this part are nothing more than grounds of appeal for the selection of evidence and fact-finding, which belong to the lower court’s exclusive jurisdiction, and thus, do not constitute legitimate grounds of appeal.

2. As to the deviation and abuse of the disciplinary authority

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, it shall be decided at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take the disciplinary measure has considerably lost validity by social norms, and thus the person having authority to take the disciplinary measure has considerably lost validity by social norms, it shall be determined that the contents of the disciplinary measure can be objectively and clearly deemed unreasonable in light of various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, and the criteria for the determination of the disciplinary measure, etc. according to the specific case. Even if the exercise of authority to take the authority to take the disciplinary measures is based upon the discretion of the person having authority to take the disciplinary measures, it violates the principle of public interest that should exercise the authority to take the disciplinary measure for public interest or is in excess of the degree of flight which generally takes place as a disciplinary measure, thereby violating the principle of proportionality by selecting an excessive disciplinary measure, or when selecting the same degree of flight in violation of the principle of equality, such disciplinary measure is unlawful.

The court below held that the disciplinary action in this case may not be deemed to have seriously lost the validity under the social norms or to have abused the limits of disciplinary power by clearly and objectively unfair means, considering that the plaintiff's act of visiting the company house in this case was committed with intent to exercise direct influence on the superior who exercises his right to direct and supervise service, and that the motive was to express his opinion on the draft amendment of the Municipal Ordinance in this case. The plaintiff was not subject to disciplinary action for violation of the duty of prohibition of collective action even before the case, but was subject to disciplinary action, and the act of insult in this case constitutes a crime of insult, which was punished by a fine, and reported to the central daily newspaper, and caused the social controversy, and further caused the corruption by not reporting the reputation of the party in this case and the status of the audience in the central daily newspapers. In light of the above legal principles, the court below did not err in the misapprehension of legal principles as to abuse of discretionary power, such as 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 Ahn Dai-hee (Presiding Justice)