[1] Details of the duty of good faith under Article 56 of the State Public Officials Act

[2] The meaning of the duty to maintain dignity and dignity under Article 63 of the State Public Officials Act

[3] The method to determine whether a disciplinary action taken by a person with authority to take disciplinary action against a public official is unlawful, and whether a disciplinary action against a public official has considerably lost validity under social norms

[1] Article 56 of the State Public Officials Act provides that “All public officials shall observe Acts and subordinate statutes, and perform their duties faithfully.” Such duty of good faith is the most fundamental and important duty of public officials, which is to promote the public interest as much as possible and to prevent the disadvantage of public officials, and to faithfully perform their duties by completing a shock and conscience.

[2] Article 63 of the State Public Officials Act provides, “No public official shall commit any act detrimental to his or her dignity, regardless of whether it is a citizen’s official duty.” Considering the status of a public official who is widely entrusted by the citizen and works for the entire citizen, any act detrimental to the dignity of a public official, as well as his or her own trust in the public society, shall not be an act detrimental to his or her dignity, regardless of whether it is a citizen’s duty or not, pursuant to Article 63 of the State Public Officials Act. Here, the term “defensive dignity” refers to physical dignity, dignity, and credibility of the public official, while maintaining the status of a citizen as a servant of the entire citizen who is the sovereign, regardless of whether it is a citizen’s duty or not. Considering the contents and meaning of Article 63 of the State Public Officials Act, legislative purport, legislative purport, etc. of the State Public Officials Act, the act of harm to the dignity of a public official should be determined based on the average person’s duty or duty to be performed as a citizen’s member of society, regardless of trust.

[3] Whether a disciplinary measure should be taken against a person subject to disciplinary action, who is a public official, is at the discretion of the person having authority to take disciplinary action. Therefore, a disciplinary measure taken by the person having authority to take disciplinary action as a result of the exercise of discretionary authority significantly lacks validity under social norms, and thus, it can be deemed unlawful.

In light of the specific cases as to whether a disciplinary action against a public official has considerably lost validity under social norms, the details and nature of the disciplinary action should be determined by comprehensively taking into account various factors, such as the characteristics of duties, the contents and nature of the misconduct causing the disciplinary action, the administrative purpose intending to achieve the disciplinary action, and the criteria for a disciplinary action. In a case where the person having an authority to take an action determines the internal criteria for a disciplinary action and takes a disciplinary action accordingly, the relevant disciplinary action has considerably lost validity under social norms, barring special circumstances such as the lack of reasonableness.

[1] Article 56 of the State Public Officials Act / [2] Article 63 of the State Public Officials Act / [3] Article 78 (1) of the State Public Officials Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 88Nu3161 Decided May 23, 1989 (Gong1989, 1009) / [2] Supreme Court Decision 2011Du20079 Decided September 12, 2013 (Gong2013Ha, 1804), Supreme Court Decision 2014Du8469 Decided April 13, 2017 (Gong2017Sang, 105) / [3] Supreme Court Decision 2008Du6387 Decided June 26, 2008, Supreme Court Decision 201Du13767 decided November 10, 201 (Gong201Ha, 2576)

Plaintiff

Head of the Maritime Security Agency

Gwangju High Court Decision 2016Nu5128 decided May 18, 2017

The judgment of the court below is reversed, and the case is remanded to Gwangju High Court.

The grounds of appeal are examined.

1. As to the ground of appeal on the fourth misconduct of this case

A. Article 56 of the State Public Officials Act provides that “All public officials shall observe Acts and subordinate statutes and perform their duties faithfully.” Such duty of good faith is the most fundamental and important duty of public officials, which is to promote the public interest as much as possible and to prevent the disadvantage of public officials, and to faithfully perform their duties (see Supreme Court Decision 88Nu3161, May 23, 198, etc.).

Meanwhile, Article 63 of the State Public Officials Act provides, “No public official shall commit any act detrimental to his or her dignity, regardless of whether it is a public official’s official duty.” Considering the status of public officials widely entrusted by the people and serving for the entire public, any public official shall not engage in any act detrimental to his or her dignity, regardless of whether it is a public official’s duty or not, pursuant to Article 63 of the State Public Officials Act. Here, “defensive dignity” refers to physical dignity, dignity, and credibility of the public official, while maintaining the status of a public official as a servant of all the citizens who are sovereign members, regardless of whether it is a public official’s duty or not. See Supreme Court Decision 201Du2079 Decided September 12, 2013. 201). In light of the legislative purport and purport of Article 63 of the State Public Officials Act as well as the legislative intent of Article 63 of the State Public Officials Act, which is a public official’s duty or duty to maintain dignity, the public official should be determined based on an average person’s duty or duty.

B. According to the relevant statutes and the reasoning of the lower judgment and the record, the following facts are revealed.

(1) From April 18, 201, the Plaintiff served as the head of the Seocho-do Coast Guard Coast Guard’s Guard’s security and the Jindo Coastal Traffic Control Center (hereinafter “Gindo VTS”). According to the direction of the Commissioner General of the Korea Coast Guard at the time, Jindo VTS was responsible for performing duties by dividing the control area into two sub-sectors. However, since April 201, the employees of Jindo VTS had 1 and 2 sub-Sections at night, and three other control personnel including the head of the center knew or could have known the status of such alternative duties.

(2) According to the Personal Information Protection Act and subordinate statutes, a video information processing device may be installed and operated at a public place only for a certain reason (Article 25(1) of the Act); and the operator of a video information processing device shall prepare a policy to operate and manage the video information processing device including “the photographing time, storage period, storage place, and processing method of video information” (Article 25(7) of the Act and Article 25(1)4 of the Enforcement Decree of the Act). Accordingly, according to the former Rules on the Management of Image Data Processing Equipment of the National Maritime Police Agency (amended by the Ministry of Public Safety and Security Directive No. 94, Jul. 31, 2015; hereinafter “the instant management regulations”), the preservation period of video information shall be set at least 30 days if it is difficult to calculate the minimum period, and the CCTV information whose storage period expires automatically is automatically deleted (Article 16(1) and (3)). According to such statutes and the Management Rules, the CCTV inside the instant CCTV control room (hereinafter “the CCTV”).

(3) On April 16, 2014, in Incheon, the Sewol ferry was sunken at the front sea of Jindo VTS, which is the control zone of Jindo VTS, and there was a death of 300 persons (hereinafter “the Sewol ferry accident”). The National Assembly requested the submission of data on CCTV video products of this case as of April 16, 2014, which was the date of the accident during May 2014. However, the Plaintiff confirmed that the files of this case were stored more than three months prior to the accident, and that only one control staff was taken at night, and that only one control staff was taken at night, and ordered to delete the original CCTV files from January 18, 2014 to April 18, 2014.

(4) On April 6, 2015, the Defendant: (a) did not spread the information identified by the Defendant directly communicating with the Sewol ferry on the day of the accident to the scene; (b) did not properly supervise the actual state of the night change work of Jindo VTS; (c) removed the CCTV camera from the wall after the accident; and (d) allowed the Plaintiff to delete the original file of the video recording material for three months under the circumstances where the National Assembly requested the data of CCTV video products on the day of the accident (hereinafter “instant misconduct”); (c) on the ground that the Plaintiff violated Article 56 (Duty of Good Faith); (d) Article 57 (Duty of Uniform Species); and Article 63 (Duty to Maintain Dignity) of the State Public Officials Act (hereinafter “instant disposition”).

(5) The Plaintiff was indicted on charges of occupational abandonment, damage to public goods, and damage to public electromagnetic records, etc. with respect to the misconducts Nos. 2, 3, and 4, but all of the appeals was acquitted at the appellate court, and the dismissal of the appeal by the Supreme Court became final and conclusive as it is (Supreme Court Decision 2015Do10460 Decided November 27, 2015; hereinafter “instant criminal judgment”).

C. Examining these facts in light of the aforementioned legal principles and the following circumstances, the Plaintiff’s act of making the original file of video data of this case deleted from the original file of the CCTV of this case as a public official can not be deemed to conform to the provisions of the duty of good faith in order to promote the public interest as much as possible and prevent disadvantages to the public, and thus, it cannot be deemed as an act fit for a human being who is not fluent as a trustee of a citizen’s position while performing his/her duties, and rather, it constitutes an act that is likely to undermine the public trust in the public service society as well as the public service society.

(1) The CCTV installed in the control room of Jindo VTS can be seen as 30 days according to the Personal Information Protection Act and the Management Rules of this case. The maximum preservation period was automatically deleted at the expiration of the preservation period. However, prior to the Sewol ferry accident, the Plaintiff did not explicitly set the CCTV preservation period or take measures to delete the video data file more than 30 days. As a result, the original video data file at the time of the Sewol ferry accident was preserved.

(2) On May 2014, after the Sewol ferry accident, which was the large witness of the people's interest in the public and the criminal punishment against the persons involved in the incident, was being conducted on or around May 2014, when the people, who were the sovereign members of the National Assembly, kept a list of TV relays, it was expected that the public official in charge will submit the data to the investigation agency, etc., insofar as the CCTV video materials that should be deleted immediately after the preservation period has expired according to the instructions of the administrative agency, even if they are considered to be preserved and related to the causes and management of the Sewol ferry accident. The head of the agency of Article 13 (1) of the Management Regulation of this case can provide video information in certain cases for a purpose other than the purpose of holding video information, and the National Assembly also demanded the National Assembly to submit relevant data. Accordingly, the case where the public official in charge could have used the data directly related to the investigation and prosecution of the crime in the case where he could have been deemed to be directly related to the investigation and trial of the case (hereinafter referred to as "the case of the case of the court'sy case").

(3) Under such circumstances, the Plaintiff, without any report or instruction on the chain of command, demanded to delete the original file of the CCTV from the original video data of this case independently. This is more likely to be intended to avoid punishment or sanctions that may affect him/her in the emergency situation as seen earlier, rather than simply to follow the preservation period set forth in the management rules of this case. As a result, the causes of the Sewol ferry accident at the time of the accident and the causes of the accident were discovered, and the act of deleting the original file of the CCTV video data, which is considered one of the proviso to verify whether rescue activities were properly performed, led to the public confusion and uncertainty on the process and result of the accident in the course of the Sewol ferry accident and the entire reputation of the Korea Coast Guard.

(4) On the other hand, the Plaintiff was acquitted of all charges of damage to public electronic records, etc. concerning the act of violating the duty of good faith. However, this is not a judgment on the violation of the duty of good faith or the duty of maintaining dignity, but a judgment on whether it does not correspond to the elements of damage to public electronic records, etc. or whether it is justified. Therefore, whether it constitutes a violation of the duty of good faith or an act of

D. Nevertheless, the lower court determined that the act of the Plaintiff’s deletion of the original file of the CCTV data of this case does not constitute a ground for disciplinary action that violates Articles 56 and 63 of the State Public Officials Act solely on the ground that the act does not constitute an element for the crime of damage to public use, electromagnetic records, etc. under the Criminal Act, or a justifiable act stipulated under Article 20 of the Criminal Act, and thus constitutes a violation of Article 56 and Article 63 of the State Public Officials Act. In so determining, the lower court erred by misapprehending

2. As to the ground of appeal on the adequacy of a disciplinary decision

A. Whether a disciplinary measure should be taken against a person subject to disciplinary action, who is a public official, is at the discretion of the person having authority over disciplinary action. Therefore, the disciplinary measure taken by the person having authority over disciplinary action as a result of the exercise of discretionary authority significantly lacks validity under social norms, and it can be deemed unlawful only when it is deemed that the person having authority over disciplinary action abused the discretionary authority.

In light of the specific cases as to whether a disciplinary action against a public official has manifestly lost validity under social norms, the details and nature of the disciplinary action should be determined by comprehensively taking into account various factors, such as characteristics of duties, the contents and nature of the misconduct causing the disciplinary action, the administrative purpose intending to achieve a disciplinary action, and the criteria for a disciplinary action. In a case where the person having an authority to take an action determines the internal criteria for a disciplinary action and takes a disciplinary action accordingly, the relevant disciplinary action cannot be deemed considerably unreasonable under social norms unless there are special circumstances, such as that the prescribed criteria for a disciplinary action are unreasonable (see, e.g., Supreme Court Decisions 2008Du6387, Jun. 26, 2008; 201Du13767, Nov. 10, 2011).

B. The court below held that, in light of the circumstances stated in its reasoning, the act of violation of Articles 1 and 2, which are recognized as the grounds for disciplinary action, cannot be deemed as intentional or gross negligence, and the act of violation of Article 9 of the Rules on Disciplinary Measures against Marine Police Officials, etc., constitutes concurrent crimes, but it is reasonable for the plaintiff to apply the provision on reduction of disciplinary action, which is not concurrent provisions of the grounds for disciplinary action, to the plaintiff. Accordingly, the disposition of this case for which the standards for disciplinary action were the "Suspension from office, reduction in salary" was the most severe and three months of suspension from office, was the abuse of discretionary power.

C. However, in light of the above legal principles, it is difficult to accept the judgment of the court below as it is.

(1) It is difficult to readily conclude that the instant disposition is a deviation or abuse of discretionary authority solely on the grounds of the first and second misconducts recognized by the lower court.

① According to the criteria for disciplinary action under Article 4(1) [Attachment 1] of the former Rules on Disciplinary Action, etc. of the Marine Police Officers (Rules No. 493 of the Rules of the National Maritime Police Agency; hereinafter “Rules on Disciplinary Action”), the scope of disciplinary action when applying aggravated provisions following the competition of grounds for disciplinary action under Article 9(1) of the said Rules, the scope of disciplinary action should be “retirement, demotion, etc.” and the scope of final disciplinary action when applying the proviso of Article 8(1)2 of the said Rules, which is “a disciplinary action, etc.” is within the scope of the above disciplinary action, and the disposition of this case is within three months following the change of the appeals review committee. Moreover, the criteria for disciplinary action prescribed in attached Table 1 cannot be deemed to have violated the principle of proportionality or having failed to meet the rationality.

② The grounds for increase and mitigation that can be applied to the Plaintiff are both discretionary increase and mitigation. Barring special circumstances where the person having authority to take disciplinary measures applies the provision on increase and mitigation in accordance with the standards for disciplinary measures and the interpretation of the rules on disciplinary measures or there are circumstances such as violation of the principle of equality, etc., it is sufficient for the lower court to consider only whether the instant disposition within the scope of the standards for disciplinary measures, and whether the same is justifiable if it deviates from the scope thereof, and it is not new application of the standards for disciplinary measures.

③ Furthermore, in light of the gravity of the instant case, the degree of misconduct in the first and second misconducts is not somewhat weak.

(2) In addition, the grounds for the disciplinary action against the 4th misconduct in this case may be acknowledged and the degree of the 4th misconduct in this case may be deemed to be significant. Accordingly, the disposition in this case cannot be deemed to have deviates from and abused discretionary power to the person having authority over the disciplinary action since it considerably lacks validity under the social norms, and the judgment of the court below that premised only on the 1 and 2 misconduct in this case cannot be maintained.

D. Nevertheless, the lower court determined that the instant disposition was unlawful as it deviates from and abused discretionary power. In so doing, the lower court erred by misapprehending the legal doctrine on deviation and abuse of discretionary power in a disciplinary action, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)