[1] Whether it is an illegal disposition that deviates from the scope of discretion in a case where the head of a local government promoted a public official who is punished for a violation of the Local Public Officials Act without a request for a disciplinary decision (affirmative)

[2] In the case of paragraph (1) of the above Article, the case holding that the head of the metropolitan government ordered correction of illegal promotion of the head of the basic local government within a specified period under Article 157 (1) of the Local Autonomy Act, and the revocation of the promotion is lawful since the head of the basic local government did not comply with

[1] The head of the internal affairs division at the time of promotion of the head of the basic local government office is detained by a violation of the Local Public Officials Act. In light of the contents of the case, it can be deemed that this falls under the grounds for disciplinary action stipulated in Article 69(1) of the Local Public Officials Act. Therefore, the head of the above local government office has a duty to demand a resolution of disciplinary action without delay against the head of the above internal affairs division, and furthermore, the necessity of removal from position is very high. Nevertheless, the head of the above local government office did not request a resolution of disciplinary action or removal from position against the head of the above internal affairs division against the head of the above internal affairs division, and the promotion of the head of the local government office was made by the head of the local government office, which goes beyond the scope of discretion on promotion granted to the appointment authority, and thus

[2] In the case of paragraph (1) of the above Article, the case holding that the head of the metropolitan government ordered correction of the above illegal promotion of the head of the basic local government within the specified period under Article 157 (1) of the Local Autonomy Act and the revocation of the promotion of the head of the basic local government was lawful since the head of the basic local

[1] Articles 65-2(1) and 69(1) of the Local Public Officials Act, Articles 1 [General Administrative Disposition] and 27 of the Administrative Litigation Act, Article 34(1)1 of the Decree on Appointment of Local Public Officials, Article 2 of the Regulations on Disciplinary Action and Appeal against Local Public Officials / [2] Article 157(1) of the Local Autonomy Act, Article 1 of the Administrative Litigation Act [general Administrative Disposition], Article 34(1)1 of the Decree on Appointment of Local Public Officials, Article 2 of the Regulations on Disciplinary Action and Appeal against Local Public Officials

Busan Gun (Attorney Yellowdok-do et al., Counsel for defendant-appellant)

Governor of Jeollabuk-do

June 12, 1998

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

The disposition revoking the promotion of the local administrative officer to the non-party on November 11, 1997 by the defendant against the non-party on March 19, 197 shall be revoked. The litigation cost shall be borne by the defendant.

1. Circumstances concerning the cancellation of promotion of this case;

In full view of the evidence No. 1, evidence No. 5, evidence No. 8-1, 2, evidence No. 9-2, evidence No. 1, 2, 3, Eul evidence No. 1-2, evidence No. 1-2, Eul evidence No. 3, evidence No. 4, evidence No. 9-1, 2, and 3, and all the arguments, the following facts may be acknowledged.

On March 19, 1997, the plaintiff promoted the non-party, who is the director of the internal affairs division of the Seoan-gun, to a local administrative office, and issued it to the head of the planning and audit office.

However, on November 23, 1996, the non-party was detained on December 28, 1996 due to suspicion that the non-Confidence resolution for the military council members and the non-Confidence resolution for the military special audit of the Board of Audit and Inspection and the Ministry of internal affairs of the Ministry of Audit and Inspection were obstructed by the lawful execution of duties, such as debate and resolution, and the non-party was detained on January 29, 1997 for the crimes of violation of the Local Public Officials Act and special obstruction of performance of duties, etc. on October 11, 1997. The non-party was sentenced to imprisonment of one year and six months with prison labor at the Jeonju District Court's Jeonju District Court on February 20, 1998. The appeal was dismissed on May 28, 1998.

Although the plaintiff was notified of the result of the disposition of public official's crime that he was detained by the public prosecutor in charge of the former District Public Prosecutor's Office on January 18, 1997, he did not request a disciplinary decision or removal from office against the non-party, and he did not undergo prior deliberation by the personnel committee in promotion.

On March 28, 1997, May 9, and June 19 of the same year, the defendant ordered the plaintiff to take corrective measures against the non-party on the ground that the promotion of the plaintiff's promotion to the non-party is illegal and unfair, but the plaintiff failed to comply with the order. On November 11, 1998, when the plaintiff receives notification of the result of the public official's crime in a criminal case from an investigative agency, the defendant did not carry out the request for disciplinary measures without delay pursuant to Article 69 of the Local Public Officials Act and Article 2 of the Local Public Officials Disciplinary Action and Appeal Regulations, but the defendant did not carry out the request for disciplinary measures without delay, thereby illegally and unreasonably promoting the person subject to restriction on promotion under Article 34 of the Decree on Appointment of Local Public Officials. ② Article 65-2 of the Local Public Officials Act and the Non-party's Non-party's Non-party's Non-party's Non-party's Non-party's Non-party's Non-Party's Non-Party's Non-Party's Non-Party's Non-Party.

2. Whether the instant disposition of cancelling promotion was in violation of the statutes

A. According to Article 39(3) of the former Local Public Officials Act (amended by Act No. 5426 of Dec. 13, 1997), the term "promotions to public officials in Grade I (B), other than paragraphs (1) and (2) (promotions by promotion examinations, etc.), shall be appointed from among public officials in the same rank immediately lower than that in the same rank. However, with respect to the number of vacancies to be filled by the appointment, it shall be appointed after deliberation by the pertinent personnel committee within the scope determined by the Presidential Decree according to the order of precedence in the list of candidates for promotion." However, since the plaintiff did not undergo a prior deliberation by the personnel committee as above in the promotion of the non-party, it shall be deemed unlawful.

However, in full view of the whole purport of the argument in the statement No. 2-1, No. 2, No. 3, No. 4-1, and No. 8-2 of the evidence No. 1, No. 5, and the whole purport of the argument in the statement No. 2 of the evidence No. 2-1, No. 2-1, No. 4-1, and No. 8-1, and No. 2 of the evidence No. 1997, it is recognized that the plaintiff deliberated on the personnel proposal to promote the non-party submitted by the non-party by the personnel committee of the vice-gu military personnel committee at around 10:00 on March 19, 197 immediately after the issuance of the personnel plan to promote the non-party to the non-party, and the resolution of the personnel plan was made by the personnel committee's resolution with the assent of four members present. Thus, if it was immediately after the issuance of the personnel plan, the defect that

B. However, according to Article 34(1)1 of the Decree on the Appointment of Local Public Officials, if a public official under his/her jurisdiction is in the period of request for disciplinary action, disciplinary action, dismissal from position, temporary retirement, or probationary appointment, he/she may not be promoted. According to Article 65-2(1) of the Local Public Officials Act, a position may not be assigned to a person who is prosecuted for a criminal case. According to Article 69(1) of the Local Public Officials Act, where “if he/she violates this Act, an order issued thereunder, or municipal ordinances or rules of a local government; 2. When he/she violates his/her duties or neglects his/her duties, 3. When he/she violates his/her duties or neglects his/her duties, he/she shall make a request for disciplinary decision; and according to Article 2(1) of the Local Public Officials Discipline and Appeal Regulations, the appointment authority shall, without delay, request the personnel committee to have jurisdiction over the relevant disciplinary case; on the other hand, Article 73(3) of the Local Public Officials Act and the investigative Agency shall make an investigation or investigation agency within 10.

In light of the above laws and regulations, the non-party is under prosecution for a criminal case, and the plaintiff was notified of the result of the public official's disposition against the non-party by the investigation agency, but the plaintiff did not actually dismiss the non-party. In addition, even if the non-party's indictment for the same reason as seen above constitutes a reason for requesting a disciplinary decision without delay pursuant to Article 69 (1) of the Local Public Officials Act and Article 2 of the Local Public Officials Discipline and Appeal Regulations, insofar as the plaintiff did not request a disciplinary decision against the non-party in reality, it cannot be said that the non-party is under a reason for restricting the appointment of the non-party under Article 34 (1) 1 of the Decree on Appointment of Local Public Officials.

However, as seen above, the non-party was detained on the grounds of violating the Local Public Officials Act at the time of promotion of the plaintiff's non-party. In light of the contents of the case, it can be deemed that this falls under the grounds for disciplinary action under Article 69 (1) of the Local Public Officials Act. Accordingly, the plaintiff is obligated to demand a resolution without delay against the non-party, and the necessity of removal from position is very high. Nevertheless, the plaintiff did not request a resolution for disciplinary action or removal from position against the non-party. Nevertheless, the plaintiff did not request a dismissal or removal from position against the non-party, as well as the promotion of the above. This goes beyond the scope of discretion on promotion granted to the appointment authority, and thus, it should be deemed an illegal disposition detrimental to the public interest.

C. Therefore, pursuant to Article 157(1) of the Local Autonomy Act, the Defendant’s order to correct the above illegal promotion of employment within a specified period and the cancellation of the above promotion should be deemed lawful when the Plaintiff did not comply with the order within the specified period.

3. Thus, the plaintiff's claim of this case based on the premise that the cancellation disposition of promotion of this case by the defendant is illegal is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition with the assent of

Justices Park Jong-chul (Presiding Justice)