The validity of disciplinary proceedings conducted without sending a copy of a request for disciplinary decision of a public official;

According to Article 7(7) of the Public Officials Disciplinary Decree, a person who has the authority to request a disciplinary decision shall request the disciplinary committee to decide on a disciplinary action, and at the same time send copies of the written request for a public official's disciplinary decision stating the grounds for disciplinary action and the kind of disciplinary action requested to the disciplinary committee. The purpose of this provision is to ensure the suspect's right to be present and make statements in the disciplinary committee as well as the right to guarantee the suspect's right to defense. Thus, the disciplinary decision conducted without sending a copy of the written request for disciplinary decision is unlawful unless there are special circumstances such as not impeding the person's preparation for and exercise of his/her right to defense, or he/she was present and speaked by the disciplinary committee without objection.

Articles 7(7) and 10(5) of the Decree on Disciplinary Action against Public Officials

Plaintiff

Head of Jeonju Correctional Institution

Gwangju High Court Decision 91Gu1614 delivered on October 22, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to Article 7 (7) of the Decree on Disciplinary Action against Public Officials, the person having authority to request a disciplinary decision shall request the disciplinary committee to decide on disciplinary action and at the same time send a copy of the public official's written request for disciplinary decision stating the grounds for disciplinary action and the kind of disciplinary action requested to the disciplinary committee. The purport of this provision is that the disciplinary committee intends to make the person under disciplinary action prepare for his/her defense by having the person under disciplinary action known in advance of whether he/she was referred to disciplinary action for any reason, and the person under disciplinary action is compulsory as a major provision to guarantee the person under disciplinary action's right to attend and make statements together with the right to guarantee the person under disciplinary action, and the disciplinary procedure conducted without sending a copy of the written request for disciplinary decision in violation of this provision is unlawful unless there are special circumstances such as that the person

However, the court below acknowledged that the defendant did not send a copy of the written request for disciplinary decision under the above provision to the plaintiff, but held that in light of the purport of the provision of Article 14(5) of the former State Public Officials Act (amended by Act No. 4384 of May 31, 191) of the same Act, the plaintiff's procedural defect cannot be deemed as an unlawful act that could revoke the disciplinary decision of this case, even if he had already known the facts of the disciplinary action and did not receive a copy of the written request for disciplinary decision prior to the date of holding the disciplinary committee, even if he had already known the facts of the disciplinary action and did not receive a copy of the written request for disciplinary decision prior to the date of holding the disciplinary committee.

Upon examining the evidence relations adopted by the court below according to the records, we affirm the above fact-finding of the court below, and if such facts were to be factually acknowledged, the circumstances of the special circumstance that the plaintiff did not interfere with the preparation and exercise of the right of defense in the disciplinary procedure, and therefore, it cannot be said that there was no procedural error to revoke the disciplinary action of this case.

However, Article 14 (5) of the former State Public Officials Act provides that even if there is a defect in the disciplinary procedure in examining a petition case by the appeals review committee, if such defect does not have a significant influence on the result of the disciplinary resolution and the reason for disciplinary action is obvious, the court may make a decision on the relevant petition case without destroying or sending a decision to dismiss or return the case, and the above provision cannot be viewed as being applied to the court in determining the illegality of disciplinary action. Thus, the court below's decision on this point is erroneous in the misapprehension of legal principles as to the application of Article 14 (5) of the former State Public Officials Act, but such illegality does not affect the above conclusion of the court below, and it is groundless to discuss this point

2. Regarding ground of appeal No. 2

The court below rejected the plaintiff's assertion that the disciplinary decision against the plaintiff by the disciplinary committee was unlawful by taking into account the plaintiff's request for attendance at the disciplinary committee and making statements without a written statement, it is reasonable to deem that the plaintiff has expressed his/her intent to waive his/her right to make statements even though he/she does not waive his/her right to make statements in the form attached to the notice of attendance, and there is no evidence to prove that the plaintiff requested the attendance at the disciplinary committee to make statements, and based on macro evidence, the defendant recognized the fact that the resolution was requested by attaching relevant materials necessary to prove that sufficient investigation was conducted after the plaintiff's sufficient investigation into the grounds for disciplinary action.

In light of the records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence or misapprehension of the legal principles pointed out by the theory of lawsuit.

3. As to the third ground for appeal

According to the records, in light of the facts of irregularities committed by the plaintiff, who is a correctional public official, regarding the plaintiff's assertion that the disciplinary action in this case exceeded the discretionary scope of the disciplinary agreement, the court below is justified in the decision that the plaintiff was appointed as an exemplary public official while working as a correctional public official for about 22 years, and even if there was a fact that the plaintiff received official commendation on several occasions due to prior facts, etc., the defendant's disciplinary action in this case cannot be viewed as a deviation from the scope of discretionary authority or an illegal disposition abused it, and therefore there is no ground for illegality pointing out the theory of lawsuit

Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)