2019Guhap8161 Revocation of Disposition of Reduction of Salary

Gambling Plaintiff (Gain Name)

Yangsan City

Attorney Jeong-soo*

Yangsan City

Litigation Performers;

December 10, 2020

January 28, 2021

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of salary reduction for three months against the Plaintiff on May 23, 2019 shall be revoked.

1. Details of the disposition;

A. On February 2, 1991, the Plaintiff was appointed as the Local Communications Officer, and on July 1, 2004, promoted to the Local Communications Branch (Telecommunications Branch) on July 6, 2015, and served in the Yangsan City Information and Statistics Division from July 6, 2015 to January 3, 2016, and in the Yangsan Safety Division from July 18, 2017 to March 26, 2019, respectively, and currently worked in the Yangsan Urban Library.

B. On May 8, 2019, the Gyeongnam Provincial Personnel Committee recognized that there were the following reasons (hereinafter “instant disciplinary reasons”), and decided to punish the Plaintiff for three months of salary reduction pursuant to Article 69(1) of the Local Public Officials Act on the ground that the violation of Article 48 of the Local Public Officials Act, Article 5 of the Act on the Prohibition of Acceptance of Improper Solicitation and Goods, Etc., and Articles 5 and 5-5 of the Code of Conduct for Public Officials is weak and intentional, and accordingly, the Defendant issued a disposition to reduce the Plaintiff for three months of salary reduction (hereinafter “instant disposition”).

According to Article 5 of the Improper Solicitation and Graft Act, no person shall make any improper solicitation that constitutes an act of selecting or evading a specific individual or organization as a party to a contract, in violation of contract-related laws and regulations, either directly or through a third party, or any other person performing his/her duties, and according to Articles 5 and 5-5 of the Code of Conduct for Public Officials in Gyeyang-si, in cases where a relative within the fourth degree of relationship with a public official is related to his/her duties, he/she shall report the relevant fact in writing to the head of the agency to which he/she belongs, and the public official in charge of contracting duties shall not have the agency to which he/she belongs and shall not have his/her family members enter into a free contract with the agency. According to Article 5 of the 'Code of Conduct for Public Officials' prior to the amendment, a public official shall act after consultation with the immediate superior or the Code of Conduct Officer on the avoidance of his/her duties in cases where a relative within the fourth degree of relationship with his/her duties is related to his/her duties.

A. The Plaintiff did not give preferential treatment to a specific person or discriminate against a specific person on the ground that it was concluded on September 3, 2018 at the Yangsan-si General Safety Department and the head of the team in charge of the business of removing CCTV for crime prevention, which was concluded on September 3, 2018, and ordered ○○○○○○○○ to enter into a contract with the said construction company, with respect to the selection of the said company, and provided preferential treatment of the said construction work amounting to KRW 5,159,00 (hereinafter referred to as “Disciplinary Reason 1”). (A) The Plaintiff, as the head of the team in charge of the business of removing the CCTV for crime prevention (the head of the team in charge of the business of the establishment of the local broadcasting and communications) to the relevant construction company by requesting the relevant construction company to enter into a contract with the said construction company for a limited contract of KRW 10,000,000,000 for 10,700,015.

C. The Plaintiff appealed against the instant disposition and filed an appeal with the ordinary south-do Local Appeals Commission, but the said appeals review committee dismissed the appeal on October 14, 2019.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 (including paper numbers), Eul evidence Nos. 1 through 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Absence of grounds for disciplinary action

In relation to the 1st Disciplinary Reason, the Defendant did not make any illegal solicitation since it was recommended by the Plaintiff on the ground of the technical ability and daily processing ability of 00 children. In relation to the 2nd Disciplinary Reason, the Plaintiff did not make an illegal solicitation to the Kimdam, and in relation to the 3rd Disciplinary Reason, the Plaintiff did not provide consultation to the immediately superior, etc. without knowing Article 5 of the Code of Conduct of Public Officials. The instant disposition was unlawful.

(ii) the deviation and abuse of discretionary power;

Even if the plaintiff's act constitutes grounds for disciplinary action, the disposition of this case is too heavy considering all circumstances, and the defendant has abused and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the existence of the grounds for the instant disciplinary action

In full view of the following circumstances, the Plaintiff’s ground for disciplinary action is acknowledged, since the Plaintiff’s assertion is without merit, inasmuch as the Plaintiff’s testimony is acknowledged, given that the Plaintiff’s ground for disciplinary action is without merit.

(1) Regarding the removal of CCTV for crime prevention from around September 3, 2018 in the Yangsan-si Safety Division

○ entered into a free contract equivalent to KRW 5,159,00 with the Abcom. During the process of entering into the contract, the local broadcast and communications proprietor’s son, who is in charge of the Yangsan City’s general safety department, had the opinion of the Plaintiff as the head of the team in charge of the work in relation to the selection of the public corporation, ordered the Plaintiff to enter into the contract with the Gbcom operated by his/her her her vegetator, and eventually 00 Abcom was determined as the public corporation.

From September 7, 2015 to July 5, 2018, the Information Statistics Division entered into a negotiated contract equivalent to KRW 7,91,173,00 between ○○○ (hereinafter “○○”) and the Compact as shown below. The Plaintiff requested the person in charge of Kim at the time to enter into a contract with the Compact, which is operated by ○○○ (hereinafter “○○”) who was a person in charge of Kim Jong-si, and eventually, ○○ (hereinafter “○○”) determined the Compact as a public corporation.

[Attachment 1]

(unit:,000 won)

A person shall be appointed.

The Plaintiff, as set out in [Attachment 2] from January 2014 to September 2018, 2018, conducted a total of seven (7), one hundred (106,159,000) compacts performed while he/she serves as the team leader, even though he/she constitutes an interest duty under the Code of Conduct for Public Officials at the time, he/she avoided it, or directly conducted a completion inspection without consulting his/her immediate superior and the Code of Conduct Officer.

[Attachment 2]

(unit:,000 won)

A person shall be appointed.

A person shall be appointed.

④ Around January 9, 2019, the Plaintiff drafted a written answer to the purport that the Plaintiff recognized the act that constitutes the grounds for the said disciplinary action, and made it clear in the written confirmation. On January 15, 2019, the Plaintiff also prepared a written explanation to the same effect.

⑤ At the Plaintiff’s request and relationship with the Plaintiff, the son and Kim in charge of the above contract stated that the Plaintiff entered into a contract. Although the Plaintiff’s former Park Jong-dong, the Plaintiff’s representative, was presented to the Plaintiff that it would be inappropriate for the Plaintiff to select the Plaintiff as an enterprise because it would be a future problem if the Plaintiff entered into a contract with the ○○○○ Gambol, which is the Plaintiff’s relative living together, it would be inappropriate for the Plaintiff to enter into a contract with the Plaintiff. However, the Plaintiff’s act of asking the Plaintiff as to whether the Plaintiff would recover himself and would not be avoided from entering into a private contract with the 00 Lbol. Accordingly, the Plaintiff’s assertion that the Plaintiff, who is a public official, did not know of the public official’s code of conduct, even if he selected a pro-born company and provided benefits

2) Determination as to whether discretionary power is deviates or abused

A) Relevant legal principles

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure is at the discretion of the person having authority to take the disciplinary measure. Therefore, the disciplinary measure is unlawful only when it is deemed that the person having authority to take the disciplinary measure has abused the person having authority to take the disciplinary measure because the disciplinary measure substantially lacks validity under the social norms. Pursuant to specific cases, the contents and nature of duties, the contents and nature of the facts causing the disciplinary measure, the administrative purpose for which the disciplinary measure is to be achieved through a disciplinary measure, and the criteria for a disciplinary measure, etc., should be considered as cases where the contents of the disciplinary measure can be objectively and objectively deemed unreasonable. In a case where the person having authority to take the disciplinary measure determines the internal criteria for a disciplinary measure and takes a disciplinary measure accordingly, the relevant disciplinary measure has considerably lost validity under the social norms (see Supreme Court Decision 2017Du4742, Nov. 9, 2017).

B) Specific determination

Comprehensively taking account of the above facts and the overall purport of the arguments and the evidence mentioned above, it cannot be said that there was an error of law that deviates from or abused discretion because it is difficult to deem that the disposition of this case was remarkably inappropriate under the social norms by violating the principle of proportionality. Thus, the plaintiff's assertion on this part is without merit.

① As a local public official, the Plaintiff is not likely to be subject to criticism because he/she selected and given benefits to a corporation related to his/her duties.

② In light of the above circumstances such as the Plaintiff’s act of misconduct, it is difficult to view that the Plaintiff’s act is based on negligence even if the degree of such misconduct is not objectively serious. Also, the Plaintiff’s act is determined as being based on the criteria for disciplinary action, types of misconduct, 1. good faith violation, h., improper solicitation, car., and other cases where “the degree of misconduct is weak and intentional” under Article 2(1) and 2(1) [Attachment 1] of the Local Public Officials Discipline Rule, 1.00, k., and other cases where “the degree of misconduct is weak and intentional.” The Defendant’s disciplinary action of salary reduction 3 months against the Plaintiff is chosen to take the highest level of disciplinary action among the types of disciplinary actions that meet the criteria for disciplinary action.

③ It cannot be said that public interests, such as the establishment of the public service class intended to achieve through the instant disposition and the recovery of the national trust to the entire public officials, are less than those to be suffered by the Plaintiff.

3. Conclusion

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

The presiding judge, judge and deputy judge

Judges Kim Gung-sung

Judges Labor-Private Citizens

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.