(영문) 서울행정법원 2018.9.7.선고 2018구합56015 판결

A. On April 24, 1989, the Plaintiff was appointed as an administrative officer, and was in general service of the Ministry of Culture, Sports and Tourism from May 18, 2015 to April 3, 2016, as C, who is a senior public official in general service belonging to the Ministry of Culture, Sports and Tourism, and from April 4, 2016 to November 10, 2016, as the Ministry of Culture, Sports and Tourism D C, respectively.

B. From January 19, 2017 to March 10, 2017, the Board of Audit and Inspection conducted an “inspection of the operation of an institution of the Ministry of Culture, Sports and Tourism”, and on June 13, 2017, the result of the said audit, the Defendant requested the Plaintiff to suspend from office for the Plaintiff on the grounds that “the Plaintiff,” “the Plaintiff, in an unlawful and unjust manner, engaged in the business of selecting the public service reserve fund project operators and the fund support business operators for the culture and arts projects.” On September 15, 2017, the Central Disciplinary Committee resolved on one-month disciplinary action against the Plaintiff on September 15, 2017 (hereinafter “the instant disciplinary cause”). On October 10, 2017, the Defendant notified the Plaintiff that he/she was punished by the suspension of one month (hereinafter “instant disposition”).

D. On January 10, 2017, the Plaintiff filed an appeal review with the Ministry of Personnel Management, and the appeals review committee dismissed the Plaintiff’s petition for appeal review on the ground that the instant disposition cannot be deemed to deviate from or abuse the discretionary power of the determination of disciplinary action, although it judged that the grounds for disciplinary action related to the “unfair conduct of business permitted to establish the Financial Foundation” among the grounds for disciplinary action in this case were not recognized.

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

1) Claims as to whether to recognize the grounds for disciplinary action

The grounds of the instant disciplinary action are not recognized as follows.

A) Of the grounds for disciplinary action in the instant case, the reserves for public-service business was operated in accordance with the direction of the Ministry of Culture, Sports and Tourism for the purpose of providing support, and the public-service business was not required for the public-service business and the Defendant’s approval was obtained only by consultation with the relevant departments and the Defendant, and thus does not constitute a violation of the explicit direction even though the public-service business was not conducted. In addition, most of the support projects were the continuous business that had been kept prior to the Plaintiff’s failure, and some research projects were requested to conduct necessary research in G (hereinafter referred to as “G”), and it cannot be deemed that the direction of support by the Ministry of Culture, Sports and Tourism was clearly unfair.

B) In the instant disciplinary cause, the grounds for disciplinary action regarding the “unfair selection of a person assisting in sports culture and arts projects” among the National Sports Promotion Fund (hereinafter “the grounds for the second disciplinary action”) may not apply the method of public recruitment at the discretion of an administrative agency if it is inappropriate to support the National Sports Promotion Fund by means of public recruitment in consideration of the characteristics of the relevant subsidized project. The “I” project is supported by a similar follow-up project that was reflected in the previous budget, and the “J” project is supported without undergoing a public recruitment, taking into account the special characteristics of the project that is conducted by the highest domestic experts.

The disciplinary action against the plaintiff on the ground that the above fund was supported without a public contest even though it was supported every year without a public contest from K prior to the plaintiff, there is a problem in equity.

C) Of the instant disciplinary reasons, in the case of the disciplinary reasons related to the "unfair subsidization of operating expenses of the KM Team" (hereinafter referred to as the "M team"), the M team creation team is within the scope entrusted by L pursuant to Article 32 subparagraph 5 of the Enforcement Decree of the National Sports Promotion Act (hereinafter referred to as "the grounds for disciplinary action") and is only within the scope entrusted by L to support the Nmpis at the time when the Pyeongtaek Olympic Games remains long, and thus, it cannot be said that the relevant laws and regulations are violated.

D) Among the grounds for disciplinary action in the instant case, the grounds for disciplinary action related to “the recovery of unfair subsidies and the suspension of business” (hereinafter “the grounds for disciplinary action 4”) violated the conditions for granting the Korea Sports Council with a prior consultation with the Ministry of Culture, Sports and Tourism to some businesses of the cultural body tourism. Since the Korea Sports Council has executed subsidies for purposes other than their original purposes, it did not provide any unfair instructions as stated in the above grounds for disciplinary action, and there was no deviation from or abuse of discretionary power on the grounds that the Korea Sports Council has continuously revoked the business violating the conditions for granting subsidies in accordance with the Ministry of Culture, Sports

2) Claim for deviation from and abuse of disciplinary authority

In light of all circumstances, such as the fact that the Plaintiff received awards and decorations, the Plaintiff’s assertion made by the appeals review committee, and certain grounds for disciplinary action were excluded, and that the Plaintiff faithfully worked for 28 years without being subject to the disciplinary action, the instant disposition is an excessive disciplinary action compared to the grounds for disciplinary action, and is in violation of the discretionary authority.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Whether the grounds for disciplinary action are recognized

1) Whether the grounds for the first disciplinary action are recognized

A) Facts of recognition

The following facts are acknowledged in full view of Gap evidence 4, Eul evidence 3, and the purport of the whole pleadings.

(1) In the Ministry of Strategy and Finance, in the case of G'P, Q, R, and S (hereinafter collectively referred to as the "each of the above academic conferences"), the subsidization of the budget was suspended on the ground that it is not desirable for the Fund to support each of the above academic conferences.

(2) The contents of the written answer dated February 16, 2017 to the Plaintiff are as follows.

(A) No person was aware of any provision that should be publicly announced through the website, etc. of the Public Works Reserve Assistance Project. If a private organization or an individual does not publicly announce the Public Works Reserve Assistance Project, it is difficult to understand the project itself.

(B) Around August 2015 and September 2015, H directed the Plaintiff to provide G, and at the same time, directed the Plaintiff to review the G support with the former V and W in U.S.

(C) In the event of X’s “Y”, although the accurate point of time was not known, H, around August 2015, ordered the Plaintiff to provide support to X, the president of the Z University AA, who was the president, and ordered the Plaintiff to review W’s budgetary support.

(3) On March 2, 2017, G’s written answer to the Plaintiff was a pending business of G with respect to each of the instant academic conferences, and if “H continues to suspend it, it should not be possible to consult with the Ministry of Strategy and Finance as much as possible.

On the other hand, I instructed W, etc. to support each of the instant conferences as the project cost of the public works reserve, because the contents of H’s instructions in 2015 are stated that W, etc. were stated that “The support of each of the instant conferences was given to W, etc. as the project cost of the public works reserve.”

B) Determination

The "Rules on the Operation of the Public Works Reserve by the Ministry of Culture, Sports and Tourism, which is a Directive of the Ministry of Culture, Sports and Tourism" (

2. 1. According to the Regulations on Operation of the Public Works Reserve (hereinafter “Rules”) of the Ministry of Culture, Sports and Tourism Directive, a person who intends to operate a support project shall submit an application for appropriation of the reserve fund to the competent division by the end of October each year (Article 9(1)). The competent division shall make a plan for supporting the project (Article 9(2)) on the basis of the support project applied pursuant to Article 9 and submit the plan to the competent division by the end of November of the preceding year (Article 10(1)). The competent division shall review whether the support plan submitted by the competent division conforms to the purpose of support, and shall report to the Defendant after deliberation by the Committee by the end of January of the pertinent year, to determine the support plan and notify the competent division thereof (Article 10(2)). On the other hand, a person who intends to operate a support project shall submit an application for appropriation of the reserve fund to the competent division by the end of January of the pertinent year for the project (hereinafter “regular support project”), other than the project for which has been determined pursuant to Article 10(1).

In light of each provision and system on the operation of reserves for public works, it is reasonable to deem that Article 9(2) of the Regulations on the Operation of Reserves for Public Works Projects, which provides that matters concerning applications for support projects shall be publicly announced on the website of the Ministry of Culture, Sports and Tourism by the end of October of each year, applies only to regular support projects, on the premise that the application for the appropriation of the budget for the reserves submitted to the competent department by the end of every year under the jurisdiction of the Ministry of Culture, Sports and Tourism by the end of October. The regulations on the operation of reserves for public works projects do not explicitly stipulate the procedures for publicly announcing the application on the website for occasional support projects. Therefore, the Plaintiff’s failure to clearly state the details of the application through the website of each public works project on the ground of disciplinary action No. 1, which constitutes occasional support projects, is not in violation of the regulations on the operation of reserves for public works projects. However, the regulations on the operation of reserves for public works are publicly announced on the website of the Ministry of Culture, Sports and Tourism through the deliberation of the Committee whether the support plan conforms to the purpose and purpose.

However, according to the above facts, the Plaintiff, without determining the necessity of supporting the public service reserve on the basis of the purpose and content of the project, implemented the unfair instruction to support the public service reserve by specifying G and X, as it is. Although the Ministry of Strategy and Finance ceased to provide the budget support for each of the instant academic conferences on the ground that it is not desirable to provide funds in the Ministry of Strategy and Finance, the Plaintiff taken measures to provide the public service reserve without examining the need for subsidization of public service loans, which would not result in consultation with the Ministry of Strategy and Finance, so the Plaintiff neglected to operate the public service reserve unfairly and to review the project implementer’s selection. Thus, this part of the grounds for disciplinary action is recognized.

2) Whether the grounds for the second disciplinary action are recognized

Article 16 (1) of the Subsidy Management Act (hereinafter referred to as the "Subsidy Act") provides that a person who intends to receive a subsidy shall submit an application stating the purpose and details of a subsidy program, expenses incurred in a subsidy program and other necessary matters to the head of a central government agency, as prescribed by Presidential Decree. The main sentence of paragraph (2) provides that the head of a central government agency shall receive an application for a subsidy under paragraph (1) through public offering, among the projects reflected in the budget by a person who intends to operate a subsidy program, provided that the purpose of a subsidy program is not achieved without the applicant's performance (Article 16 (1) (Article 1) (Article 16) (Article 16 (1)) (Article 16 (1)) of the Subsidy Management Act (hereinafter referred to as the "Subsidy Act"), where the person who intends to operate a subsidy program is the head of a local government (Article 2) and subparagraph 1 and 2) (Article 3).

In light of the above facts, in order to grant the National Sports Promotion Fund, the Plaintiff did not comply with the procedures for receiving an application for subsidy through a public invitation pursuant to Article 16(2) of the Subsidy Act. The proviso of Article 16(2) of the Subsidy Act provides for certain exceptions to the public invitation method, but each subsidized project specified in the ground for disciplinary action does not fall under Article 16(2) proviso 1 and 2 of the Subsidy Act. The Plaintiff received a special order from H to the University Industry-Academic Cooperation Foundation to which AA belongs and sent it to V and AB as it is, but received a report that lack of the budget for policy research services, and subsequently ordered the National Sports Promotion Fund to provide support again pursuant to Article 16(2) proviso 3 of the Subsidy Act.

In the granting of the above subsidies, there was no process of determining whether it is inappropriate for each of the above subsidized projects to be publicly recruited, taking into account the characteristics of the subsidized projects. Therefore, the reason for the disciplinary action on this part is recognized, given that the Plaintiff’s provision of the National Sports Promotion Fund to each of the above subsidized projects without undergoing the public recruitment procedures, may be deemed an act of unfairly selecting a sports, culture, and arts subsidized project operator.

3) Whether the grounds for the third disciplinary action are recognized

A) Facts of recognition

The following facts are acknowledged in full view of Gap evidence Nos. 2, 4, 9, 11, 12, 18 (including branch numbers for those with serial numbers), Eul evidence Nos. 3, and the purport of the whole pleadings.

(1) On March 16, 2017, it is desirable for the Plaintiff to set up the cost of supporting the business of the unemployment team of the budget and fund in relation to the improper support for the establishment of the M Team operation, and to support the establishment of the M Team operation cost. Since H given that the Korea Sports Promotion Foundation ordered the Plaintiff to provide the cost of the M team with business revenues, such as providing the Plaintiff with a subsidy of KRW 5 billion to the M Team and ordering the Plaintiff not to settle the costs of the M Team, it stated that H failed to report other measures.

(2) The documents prepared by the Ministry of Culture, Sports and Tourism by the Ministry of Culture, Sports and Tourism on July 19, 2017 include the scope of the entrusted business under Article 32 subparag. 5 of the Enforcement Decree of the National Sports Promotion Act to the effect that the operation of sports teams is deemed to be included in the scope of the entrusted business under Article 32 subparag. 5 of the Enforcement Decree of the National Sports Promotion Act.

(3) L was established and operated on March 16, 201; and on November 15, 201, aD team was established and operated on November 15, 201; the National Sports Promotion Foundation pays L the expenses for entrusted operation to the said AC team and AD team.

At the time of the creation of the above AC Team, the Ministry of Culture, Sports and Tourism sent a letter of co-operation to the National Sports Promotion Foundation and L on November 17, 2010 and followed the procedure for L to implement a creative group accordingly.

(4) The Ministry of Culture, Sports and Tourism presented each opinion that "the operation of the M Team from AE in relation to the legality of the entrusted operation of the M Team can ultimately expect the public relations effect such as raising national response and awareness of the business issuing voting rights." As such, Article 32 subparagraph 5 of the Enforcement Decree of the National Sports Promotion Act (Article 32 of the National Sports Promotion Act) provides that "the operation of the M Team constitutes "other business related to operation, such as public relations, etc. of sports events subject to sports promotion voting" should be executed in compliance with the name of the fund for national sports promotion, thereby enhancing the image of the business issuing voting rights and contributing to the long-term settlement of the business."

B) Determination

(1) Article 25(1) of the former National Sports Promotion Act (amended by Act No. 13246, Mar. 27, 2015; hereinafter “National Sports Promotion Act”) provides that the Korea Sports Promotion Corporation shall, as prescribed by Presidential Decree, entrust an organization or individual with the business of issuing sports promotion betting tickets in order to efficiently carry out the business of issuing sports promotion betting tickets. Accordingly, Article 32 of the Enforcement Decree of the National Sports Promotion Act provides that where the business of issuing sports promotion betting tickets is entrusted to operate the business of issuing sports promotion betting tickets, the sale of sports promotion betting tickets shall be limited to the scope of entrusted operation, the payment of the refund money ( Subparagraph 1), the operation, maintenance, and repair of the sales system of sports promotion betting tickets ( Subparagraph 2), the payment of refund money when the sale of sports promotion betting tickets becomes invalid ( Subparagraph 4), and other business related to the operation of sports games subject to sports promotion voting (subparagraph 5). Article 29 of the Enforcement Decree of the National Sports Promotion Act provides that the items of sports subject to sports promotion betting tickets are those prescribed by the Gu/Si/Si/gu.

On the other hand, Article 19(1) of the National Sports Promotion Act provides that the National Sports Promotion Fund shall be established to support the expenses necessary for facilities costs necessary for the promotion of sports, the improvement of the welfare of athletes, the fostering of sports organizations, the fostering of school sports and workplace sports, the fostering of professional human resources for sports, culture, and arts, and the fostering of weak areas, etc.

(2) In light of such provisions and systems of the Enforcement Decree of the National Sports Promotion Act and the Enforcement Decree of the same Act, this part of the grounds for disciplinary action are premised on the fact that L, who is an entrusted business entity of the business of issuing sports promotion betting, would create a team and support the creative operation expenses at the National Sports Promotion Foundation in violation of Article 32 of the Enforcement Decree of the National Sports Promotion Act, etc. However, Article 25(1) of the National Sports Promotion Act and Article 32 of the Enforcement Decree of the same Act only stipulate the scope of the entrustment of the business of issuing sports promotion betting tickets and the entrusted business thereof. Therefore, even if the creation and operation of the team does not fall under the "other business related to the operation, such as promotion, etc. of sports, culture, and arts," the National Sports Promotion Fund is established to support expenses necessary for fostering and weak fields of sports, culture, and arts, and the National Sports Promotion Foundation is permitted to entrust part of its business related thereto pursuant to the National Sports Promotion Act or other statutes.

There is room for room.

In addition, in light of the following circumstances, namely, ① the operation of LM team is included in the scope of entrusted business under Article 32 subparag. 5 of the Enforcement Decree of the National Sports Promotion Act; ② the Ministry of Culture, Sports and Tourism has received legal advice from multiple law firms to the effect that the entrusted operation of MM team does not violate the National Sports Promotion Ordinance; ③ the Minister of Culture, Sports and Tourism has entrusted the operation of AC team and AD team by requesting cooperation with the Korea Sports Promotion Agency and L, and the entrusted operation expenses are to be borne by the Korea Sports Promotion Agency, and there is no established standard or interpretation on whether the entrusted operation of MM team violates relevant statutes, such as the National Sports Promotion Act, and there is no intent to provide the Plaintiff with unfair support in relation to the support of the operation expenses of MM team. Therefore, this part of the grounds for the disciplinary action is not recognized.

4) Whether the grounds for the 4th disciplinary action are recognized

A) Facts of recognition

The following facts are acknowledged in full view of Gap evidence 4, Eul evidence 3, and the purport of the whole pleadings.

(1) On April 2015, the Ministry of Culture, Sports and Tourism approved the 300,972,150, including subsidies already granted by revoking the decision to grant subsidies for the above 2 projects and suspended subsidized projects after 2016, on the ground that the Ministry of Culture, Sports and Tourism, the Ministry of Culture, Sports and Tourism, in consultation with the Ministry of Culture, Sports and Tourism prior to the tender, provided that the two projects promoted through bidding, such as “AG and AH,” among those projects (a total of KRW 1.3 billion), should be conducted through consultation with the Ministry of Culture, Sports and Tourism.

(2) On February 27, 2017, the written answer against the Plaintiff contains the following: (a) there was a fact in relation to the recovery of the above subsidies and the measures to suspend the business; (b) received instructions from the office of the principal of the Cheongdae-dae, or the president or the Vice-Speaker, directly or indirectly, to strictly cope with the Korean Olympic Committee; and (c) received instructions from the employees to closely examine the business affairs of the Korean

(3) On February 23, 2017, the written answer to the former AI and AJ stated that it was an excessive disposition at the time of “the recovery of the subsidy and the suspension of the project, but it was determined that it was necessary for the integration of sports organizations on the upper line, such as the Plaintiff.”

(4) On February 23, 2017, the written reply of W, stating that such measures were unreasonable, and that there was no other choice due to the superior atmosphere, etc. that the said measures should be pressured by the Korean Olympic Committee. In ordinary circumstances, I think it was possible to examine this business, and the content of the business. At the same time, I have an atmosphere to pressure the Korean Olympic Committee by the integration and reform with sports organizations. Although there was no explicit order to revoke, I think it was an implied intention to the Plaintiff’s order, such as “a measure to confirm the violation”, “a measure to dispose as soon as possible,” and “a measure to dispose”.

(5) On February 28, 2017, the written answer of the former Director of AI to AK, understood that even if the above subsidies were recovered and the measure to suspend the project, the measures should be taken to the maximum extent possible if the violation is verified. The AJ and W also have understood the same.

B) Determination

Article 15(1) of the former Regulations on the Management of Subsidies for Non-Governmental Organizations which are Directives of the Ministry of Culture, Sports and Tourism (amended by Ordinance of the Ministry of Culture, Sports and Tourism No. 295, Aug. 29, 2016; hereinafter referred to as the "Regulations on the Management of Subsidies") provides that the subsidized project management department shall take measures in accordance with the guidelines for the attached Table 3 if the subsidized project operator commits an offense in violation of attached Table 3 while carrying out the subsidized project: Provided, That if the subsidized project operator intends to apply different standards from those prescribed in attached Table 3, the "Budget Execution Council of the Ministry of Culture, Sports and Tourism established pursuant to Article 49(1) of the Enforcement Decree of the National Finance Act" shall be subject to deliberation by the Ministry of Culture, Sports and Tourism. Accordingly, attached Table 3 of the Regulations on the Management of Subsidies provides that "where the subsidized project is used for any other purpose without prior approval from the Ministry of Culture, Sports and Tourism" shall return the subsidy to the relevant organization or subsidy project for the next two years, or shall reduce the subsidy amount of the subsidy by at least 5 years.

On the other hand, the criteria for the disposal of attached Table 3 of the Subsidy Management Regulations are necessary for the acts such as the act of using subsidies for the purpose other than the purpose of the subsidy and the violation of the terms and conditions of the subsidy. In addition, one of the "the suspension of the subsidy to the relevant organization", "the suspension of the subsidy to the relevant subsidy program" or "the suspension of the subsidy", and the "the subsidy reduction rate and the suspension of the subsidy" can be increased or decreased. Thus, the management department of the subsidy program should determine whether to impose appropriate sanctions by taking into account all circumstances such as the type, degree, circumstances, etc. of the relevant violation and whether to reduce the subsidy and to increase or decrease the subsidy rate and the suspension of the subsidy. However, according to the above facts recognized above, the plaintiff cannot be said to have properly implemented the decision on the selection of the subsidy and whether to reduce or decrease the subsidy for the purpose other than the "the violation of the conditions of the subsidy grant due to the prior consultation" and the "the suspension of the business operation" without considering the validity of the disciplinary action against the plaintiff.

When 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 the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure has considerably lost validity under the social norms, it may be deemed unlawful. If a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by considering various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, the criteria for the determination of the disciplinary measure, etc., and even if the authority to take the authority to take the disciplinary measure is left at the discretion of the person having the authority to take the disciplinary measure, it should be deemed that the contents of the disciplinary measure can be objectively and clearly unreasonable. Even if the exercise of the authority to take the disciplinary measure is contrary to the public interest principle that should exercise the authority to take the disciplinary measure for public interest, or is generally considered as a disciplinary reason, it violates the principle of proportionality by selecting an excessive disciplinary measure, or when it violates the standard of fairness applied to the same degree without a reasonable reason, thereby violating the principle of discretion.

The instant disposition was conducted on the premise that the initial grounds for disciplinary action were recognized to have been in violation of the duty of good faith. However, as seen earlier, only the grounds for disciplinary action Nos. 1, 2, and 4 are recognized as legitimate grounds for disciplinary action, and one of the core grounds for disciplinary action of the instant disposition is not acknowledged as the grounds for disciplinary action equivalent to KRW 3,440 million. Considering the above, it is reasonable to deem that the Defendant was subject to disciplinary action due to erroneous fact-finding or judgment on the grounds of social norms, and thus, the instant disposition was unlawful by abusing the discretionary authority that was entrusted to the person with authority to take disciplinary action, as it

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges

The judges of the presiding judge;

Judges Lee Jae-Un

Judges Gangseo-gu

Note tin

1) The decision of the appeals review committee shall binding on the action-taking authority to recognize and publish the text of the decision and the facts constituting the basis for the decision.

Provided, That the Supreme Court Decision 2003Du7705 Decided December 9, 2005 (Supreme Court Decision 2003Du7705 Decided December 9, 2005)

See, e.g., Supreme Court Decision 2012Du12297 Decided July 25, 2013, 2012Du1297, etc.). This decision of the appeals review committee as seen earlier

Among the grounds for disciplinary action in the case, the grounds for disciplinary action related to the "unfair conduct of permission for the establishment of the Foundation" were not recognized, so the above grounds for disciplinary action

A. It is not included in the scope of the determination of this case, which determines the propriety of the claim seeking the revocation of the instant disposition.

심급 사건

서울행정법원 2018.9.7.선고 2018구합56015

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