2011Guhap4154 Revocation of Disposition of Removal

Han 00

Do Governor of Chungcheongnam-Nam

April 25, 2012

May 30, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s disposition of suspension from office against the Plaintiff on July 27, 2011 is revoked for three months.

1. Details of the disposition;

A. From June 9, 1986 to August 10, 2001, the Plaintiff served as a member of the Livestock Sanitation Laboratory and the Livestock Sanitation Research Institute (functional position), from August 11, 2001 to December 25, 2002, as Bona Order, the Red Fire Station Cheongyang, and the Fire Station Cheongyang Fire Station driver (functional position) respectively, and was assigned as local fire assistant on December 26, 2002, and was promoted as local fire assistant on January 14, 2008, and was assigned as local fire assistant on May 3, 201 to the Safety Center.

B. On June 14, 2011, the Plaintiff was ordered to move personnel to two teams of the Hongsan 119 Safety Center (hereinafter “the instant personnel order”), but did not work as the above-mentioned work place between the two pages, and on June 15, 201, and on June 30, 201, the Plaintiff conducted one person demonstration by asserting that the person was forced to put in the above-mentioned place of work by taking the boom and the 30 minutes of the fire-fighting box, and claiming that the person was forced to put in the order.

C. On July 22, 2011, the Defendant removed the Plaintiff from office pursuant to Article 69(1) of the Local Public Officials Act, Article 9 of the Enforcement Decree of the Fire Officials Disciplinary Decree, Article 7 of the Regulations on Fire Officials’ Disciplinary Measures, on the ground that the Defendant violated the duty to maintain the dignity of Article 55, on the grounds that the Plaintiff was absent from office without permission of the Defendant, one person’s demonstration, and the act of having the reporter photograph and report the facts of the demonstration, etc.

D. On August 1, 2011, the Plaintiff filed a petition with the competent local appeals review committee (hereinafter “instant disciplinary action against the Plaintiff”) on August 19, 201. The committee is deemed to have caused disciplinary action but decided to change the disciplinary action against the Plaintiff for three months on the ground that the disposition against the Plaintiff was harsh (hereinafter “instant disciplinary action against the Plaintiff, which was changed for three months from suspension from office”).

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 3, 5 through 8, Eul evidence Nos. 1 through 8 (including branch numbers for which there are provisional lot numbers), and the purport of the whole pleadings.

2. Determination on the legitimacy of the instant disciplinary action

A. The plaintiff's assertion

On June 10, 201, a person using a false name called "lele 00" posted an article that slanders the plaintiff on the homepage of the Chungcheongnam-nam Fire Safety Headquarters, and the defendant did not confirm accurate facts about this order, and was in violation of the personnel order on June 14, 201 without any reasonable confirmation. This was that the procedure was not appropriate, and it was a deviation from or abuse of personnel rights. Accordingly, the plaintiff worked at the former Safety Center as 119,000,000, 19: (a) on June 14, 201, 200: (b) the plaintiff was working at the fire site and was dispatched to the fire site on June 19: 16, 201; and (c) the plaintiff was not aware that the defendant violated the duty of good faith, and thus, it was difficult for the head of the fire station to obey the personnel order of this case on two occasions, and thus, it was difficult for the plaintiff to obey the personnel order of this case.

Even if there are grounds for disciplinary action against the Plaintiff, the instant disciplinary action is unlawful by deviating from and abusing the discretion of the Plaintiff, in addition to the circumstances in which the Plaintiff was ordered to transfer to the 119 Safety Center even if the Plaintiff was Ansan-do on October 7, 2011.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

(c) Facts of recognition;

1) On June 10, 201, around 01: 01:30, a person using a false name called "leap 00" puts a letter to the effect that "the plaintiff frequently takes a bath, fluorizes female employees, have a stone with a stone with a stone, and fluorizes them during working hours" (hereinafter referred to as "the Internet of this case").

2) As assigned fire fighting units, around 10:0 on the same day, the fire fighting administration officer notified the Plaintiff of the above facts and asked him to correct the truth. The Plaintiff responded that the Plaintiff is not superior to the Plaintiff. If the content of this article is lost, the Plaintiff responded to what punishment would be imposed.

3) On the same day, the assigned fire fighting administrative officer ordered the Lee 00 of the instant Internet language to investigate the internal use of the instant Internet language, from 00 to 20:00 on the same day, and conducted an investigation through telephone or e-mail to 13 employees working at the 119 Safety Center from 00:0:00 on the same day, and as a result, the investigation was conducted to the effect that: (i) three indirectly participated in the bath; (ii) one indirectly took a bath to the extent that he indirectly weak; and (iii) one indirectly took a brut to the effect that he did not hear or respond to the fact that he had a stone with a stone.

4) On June 13, 201, the Defendant received such a report: around 40: Around 40, the Defendant issued the instant personnel order to the Plaintiff for the purpose of “the fair investigation of employees of the relevant department related to the Internet administration, the improvement of the quality of fire officers, and the establishment of a period of service discipline.”

5) On June 13, 201: around 26, 201: (a) around June 16, 201, the time of the instant personnel order, the head of the Chungcheongnam-nam Fire Safety Headquarters website, in the name of “le0,” a person who prepared the relevant bulletin board under the name of “le 00.” This article was expressed as an exaggeration of appraisal in a state of drinking. This article was written to the effect that “a significant exaggeration was made and the Plaintiff’s usual speech and behavior was a part that would give consideration to the other (the Defendant’s report on this fact was about June 16, 201, which was the next personnel order).

6) On June 14, 201, 201: 08:50, the Plaintiff sought a demand against the chief of the fire station for the instant personnel order by finding the fire station as the library room. However, although the chief of the fire station tried to persuade the chief of the fire station to the purport that “a person who was implemented to establish a fair investigation and service discipline, not a reprimand,” the Plaintiff is an unfair personnel measure. The Plaintiff would cope with the instant personnel order through the Do, the police, the police, the parliamentary, and the court. If the Plaintiff does not return to the former, the Plaintiff would actively cope with the instant personnel order. The Plaintiff refused to issue the personnel order and returned to the 119 Safety Center.

7) On June 14, 201, the chief of the assigned fire-fighting administrative department visited the Plaintiff at Yacheon 119 Safety Center on June 16, 201: around 40: (a) expressed to the effect that “I will work at the workplace and raise an objection even if there is an unfair personnel order; (b) the Plaintiff argued that I would return home to the original state, and “I will report through the newspaper media unless I return to the original state by June 15, 2011.”

8) After June 15, 201, the Plaintiff did not work at the Hongsan 119 Safety Center, which is a workplace under the instant personnel order, during the instant period. On June 15, 2011 and June 16, 2011, the Plaintiff worked at the Kansan 119 Safety Center. On the two occasions, the Plaintiff conducted one person demonstration against the instant personnel order, and the fact of such one person’s demonstration was published in the online newspaper (Eansan News).

[Ground of recognition] Evidence A Nos. 1 through 8, Evidence B Nos. 1 through 9 (referred to as Serial Nos. 1 to 9), the witness’s studio, studio, Lee Jong-chul, Lee Jong-chul, and the purport of the whole pleadings

C. Determination

1) First, we examine the Plaintiff as to whether there exist grounds for the disciplinary action.

As a matter of principle, since a person to be transferred to a public official belongs to the authority of a person having personnel authority, it is necessary to recognize a considerable discretion within the scope necessary for his/her duties. Even if there is room to view that the person to be transferred to be in violation of the standards and rules prescribed by statutes or the person having personnel authority has exercised personnel authority somewhat inappropriately, unless it is evident that the person having personnel authority loses objective legitimacy by abusing or abusing his/her personnel authority, etc., it cannot be viewed that the transfer personnel is naturally null and void unless it is evident that our sound social norms and social norms are not acceptable (see Supreme Court Decisions 2006Da16215, May 28, 2009; 2007Du20157, April 23, 2009, etc.).

In this case, according to the above facts, if the plaintiff complies with the personnel order of this case, it can be acknowledged that there was a circumstance that the plaintiff had no choice but to understand the possibility that the content of this article would be true. However, the following circumstances, which can be known by the above facts, (i) the defendant gave the plaintiff an opportunity to see the plaintiff immediately after the entry into the Internet, and immediately ordered 00 to investigate the facts, and (ii) the defendant did not have any way to confirm that the contents of this article were true. However, it was difficult to conclude that the plaintiff did not have any falsity because of the fact that the plaintiff did not have any duty to maintain the quality of the Internet, (iii) the defendant did not have any more accurate investigation, and (iv) the defendant did not have any other duty to take personnel management measures than the plaintiff's existing place of work, and thus, it was difficult to conclude that the defendant did not have any other duty to take personnel management measures of this case, and (v) the defendant did not have any more unfavorable reasons to the plaintiff.

2) Next, it would be concerned as to whether the instant disciplinary action deviatess from or abused the discretionary power.

When 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 the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure has considerably lost validity due to the exercise of the authority to take the disciplinary measure, it shall be decided that the disciplinary measure is unlawful only when it is deemed that the person having the authority to take the disciplinary measure has abused the authority to take the disciplinary measure. If the disciplinary measure against a public official has considerably lost validity under social norms, it shall be decided that the contents and nature of the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, the criteria for the determination of disciplinary measures, etc. are clearly unreasonable objectively and clearly depending on the specific cases. The exercise of the authority to take the disciplinary action is against the public interest principle that should exercise the authority to take the disciplinary measures for the public interest even with the exercise of the authority to take the discretion of the person having the authority to take the disciplinary measure, which goes against the principle of proportionality or the principle that has been applied fairly to the same degree without a reasonable reason, and thus, it is unlawful.

With respect to this case, the Ministry of Health and Welfare: (a) as a matter of principle, a person transferred personnel to a public official is re-consigning human resources in order to effectively maintain the activities of the organization; (b) it belongs to the personnel authority of the personnel management authority; (c) it belongs to various ways for various purposes; and (d) as seen earlier, the personnel management authority has considerable discretion to the extent necessary for business operations; (b) if a public official is dissatisfied with an order without dispute through legitimate procedures for the reason that there is an objection to such personnel order; and (c) if a public official is dissatisfied with the order in a realistic manner, such as demonstration or press report, the authority of the personnel order would be lost; and (c) the personnel order in this case is judged to be sufficiently justified; and (d) as seen earlier, it is very important to protect the lives of the members of the fire station while working at the scene of the disaster; and thus, (d) it appears that there was a need to transfer the Plaintiff to another place to conduct accurate investigation on the Internet, such as granting of disciplinary authority to the Plaintiff.

3. Conclusion

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

Judges in charge of fishing

Judges Jeon Jae-il

Judges Lee Jae-sung

Site of separate sheet

Relevant statutes

【Local Public Officials Act

Article 48 (Duty of Good Faith)

All public officials shall observe Acts and subordinate statutes, and perform their duties faithfully.

Article 49 (Duty to Comply with)

A public official shall obey any order of his superior officer with respect to the performance of his duties: Provided, That he may state his opinion thereon.

Article 50 (Prohibition of Deserting Office)

(1) No public official shall leave his/her place of work without the permission of his/her superior officer or any justifiable reason.

(2) Where an investigative agency intends to detain public officials, it shall notify the heads of affiliated agencies thereof in advance: Provided, That in cases of flagrant offenders, such shall take

subsection (1) of this section.

Article 55 (Duty to Maintain Dignity)

No public official shall perform any act detrimental to his/her dignity.

Article 69 (Grounds for Disciplinary Action)

(1) If a public official falls under any of the following subparagraphs, a resolution on disciplinary action shall be requested and decided according to the result of such resolution:

shall take a disciplinary action.

1. When he/she violates this Act or an order issued under this Act or Municipal Ordinances or Municipal Rules of a local government;

2. Any duty in the course of performing his duties (including such duty as imposed on the status of public officials in other Acts and subordinate statutes) or any position;

at the time of neglecting to do so

3. When he commits an act detrimental to his dignity as a public official.