(영문) 서울고등법원 2012.6.8. 선고 2012누10477 판결

○ The Plaintiff was a representative certified public labor attorney of the branch office of the labor law firm C in Seo-gu, Seoan-gu, Seoan-gu, Seocheon-gu, and was employed on November 7, 2006 by the Plaintiff’s office and was paid KRW 7,200,000 under the Employment Insurance Act from February 22, 2007 to January 22, 2008.

Around July 2006, the Defendant received new employment promotion incentives by pretending to be newly employed on November 7, 2006 after the Plaintiff employed D as a staff member, and received new employment promotion incentives by pretending to violate the duty to maintain dignity under Article 12(1) of the Certified Labor Affairs Consultant Act (hereinafter referred to as “instant disciplinary cause”), and on November 15, 2010, after requesting a resolution on disciplinary action on November 15, 2010 and following a resolution by the Disciplinary Committee, the Defendant was subject to a disposition of one year suspension of qualification for the Plaintiff pursuant to Article 20(1)4 of the Certified Labor Affairs Consultant Act.

0. On December 15, 2010, the Plaintiff filed a lawsuit seeking revocation of the previous disposition. The Seoul Administrative Court rendered a judgment revoking the previous disposition on June 10, 201 on the ground that the instant disciplinary cause against the Plaintiff is recognized, but the details of the disciplinary action are excessive (2010Guhap46388), and the said judgment became final and conclusive on June 30, 201.

On December 28, 2011, the Disciplinary Committee of the Defendant decided to change the contents of the previous disposition against the Plaintiff to "six months of suspension of duties (including the period of suspension of qualification already received)," and accordingly, the Defendant notified the Plaintiff of the said contents (hereinafter referred to as "the instant disposition").

I. The argument and judgment

The plaintiff asserts that the disposition of this case is unlawful and seeks revocation. The plaintiff's assertion is examined as follows.

1. Disciplinary action by prescription;

A. The plaintiff's assertion

According to Article 20 (5) of the Certified Public Labor Attorney Act, a resolution on disciplinary action shall not be requested if three years elapse from the date on which the grounds for disciplinary action occurred. The disposition in this case was made three years after the date on which the grounds for disciplinary action in this case occurred.

B. Determination

(1) When a judgment that a disciplinary measure was taken during a lawful period of prescription became null and void on the grounds that the disciplinary measure deviatess from the discretionary limit of a disciplinary measure in a lawsuit, the case where a new disposition of suspension was made upon request for a disciplinary measure, which is merely a modification of the contents of a disciplinary measure that was lawfully demanded, not a new disciplinary measure, and thus, it can be made even after the lapse of the prescription period (see, e.g., Supreme Court Decision 80Da2945, May 26, 1981). In a case where a disciplinary measure is revoked by a defendant’s decision due to procedural defect or excessive disciplinary measure, the prescription period shall be based on the time when the initial disciplinary measure was requested (see, e.g., Supreme Court Decision 97Nu1935, Feb. 5, 199).

(2) According to the above facts, the plaintiff received a new employment promotion subsidy by illegal means until January 22, 2008. Accordingly, it can be recognized that the plaintiff first requested a disciplinary resolution on November 15, 2010, before the three-year period of prescription under the Certified Public Labor Attorney Act, which is the disciplinary action under the Certified Public Labor Attorney Act. Thus, the defendant requested a disciplinary resolution within three years from the time of the occurrence of the cause of the cause of the cause of the cause of the cause of the disciplinary action. Thus, the plaintiff's above assertion cannot be deemed unlawful even if the disposition of this case was conducted after three years from the time of the occurrence of the cause of

2. Re-Discipline;

A. The plaintiff's assertion

In order to take the same disciplinary action after the first disciplinary action has been revoked, there should be special provisions in law as referred to in Article 78-3 of the State Public Officials Act, and the Certified Public Labor Attorney Act does not have any provision regarding the second disciplinary action. Thus, insofar as the first disciplinary action has been revoked, the defendant cannot take disciplinary action again on the ground of the instant disciplinary action, and even if not, given that the period of the second disciplinary action is within two to three months, the judgment becomes final and conclusive, and the instant disposition taken after six months is illegal.

B. Determination

In full view of the purport of the whole arguments in relation to the above facts of recognition, the following arguments are examined.

(1) Article 78-3(1) of the State Public Officials Act provides that a person having the authority to take a disciplinary action shall re-request a disciplinary action or disciplinary surcharge if the appeal review committee or court has made a decision to nullify or revoke a disciplinary action on the grounds falling under any of the subparagraphs. In this case, Article 78-3(2) provides that a disciplinary action must be requested to the disciplinary committee within three months after the decision of the appeals review committee or court has become final and conclusive. However, the above provision provides that where the first disciplinary action is invalidated or revoked in accordance with judicial judgment, an administrative agency shall impose an obligation to supplement the defects and then demand a disciplinary decision again, thereby exercising the authority to take a disciplinary action. Meanwhile, the same provision provides that a disciplinary action may be requested within three months from the state of unsound personal instability. In addition, it cannot be deemed that the disciplinary action cannot be re-founded unless the above provision provides otherwise, and the person having the authority to take a disciplinary action may cancel the disciplinary action and make a new disciplinary action. Therefore, it is reasonable to deem that a disciplinary action may not be re-scheduled.

(2) On the other hand, if the person having authority to take disciplinary action conducts a disciplinary action again, it is difficult to view that the defendant's trust that the defendant would not take disciplinary action again to the plaintiff or that there was trust that the plaintiff would not take disciplinary action for a considerable period of time, and that the defendant would not exercise the disciplinary right to the disciplinary flight. Thus, it should be limited to the exercise of the disciplinary right. In this case, even if the decision of this case was made after a certain period of time after the decision of this case became final and conclusive, as seen earlier, the disposition of this case was partially revised. In light of the circumstances that the defendant's disciplinary committee was held once a year, and the first disposition was taken by the △△ Disciplinary Committee at the time when the decision became final and conclusive, it is difficult to view that the disposition of this case was an abuse of the disciplinary right merely because the decision was made once more than six months after the decision became final and conclusive, or because it was difficult to view that the defendant's trust that the plaintiff would not take disciplinary action again, or that it was an abuse of the disciplinary right of this case.

(3) Comprehensively taking account of the above circumstances, the Plaintiff’s assertion is without merit on the ground that there was no provision on the ground of re-regulation, or that the period of six months has passed since the judgment became final and conclusive, and thus, the Defendant’s disposition of this case cannot be deemed as unlawful.

3. Deserting or abusing discretionary power;

A. The plaintiff's assertion

If the Plaintiff already returned the entire amount of the new employment promotion subsidy and paid the amount according to the additional collection disposition, and compared with the disciplinary action such as E, etc., which was subject to disciplinary action for the same reason as the Plaintiff, the instant disposition was excessively harsh, and thus, has exceeded and abused the discretion of disciplinary action.

B. Determination

(1) In principle, when a disciplinary measure is taken at the discretion of the person having the authority to take the disciplinary action, the disciplinary measure is illegal. It is limited to a case where the person having the authority to take the disciplinary action has been deemed to abuse the authority to take the disciplinary action since the disciplinary action significantly lacks validity under the social norms. In order for the disciplinary measure to be a disposition which substantially lacks validity under the social norms, it should be deemed that it is objectively and objectively unreasonable in light of the characteristics of duties, the contents and nature of the offense, the purpose of taking the grounds for the disciplinary measure, and all the circumstances accompanying the disciplinary action (see, e.g., Supreme Court Decision 2007Du2097, Feb. 1, 2008).

(2) As to the instant case, the following circumstances acknowledged based on the facts and the purport of the entire argument, i.e., the new employment promotion subsidy is paid to an employer who takes measures necessary for employment insurance premium in order to prevent the structural deterioration of unemployment by facilitating the employment of workers who are difficult to find a job and to facilitate their entry into the labor market. As such, there is a great need for public interest to prevent unfair supply and demand and maintain the soundness of the Fund. However, the Plaintiff abused the above system by means of pretending that the job seeker is employed by the employment promotion agency for the sole purpose of receiving the subsidy. ② The Plaintiff was forgotten for the main portion of the labor promotion subsidy to be difficult to promote the welfare of the workers and prevented the above delinquency, and ③ the Plaintiff’s new employment promotion subsidy was clearly different from the employment promotion subsidy for a certain period of time from the employment promotion support center for which the Plaintiff received new employment promotion subsidy for a certain period of time, i.e., the Plaintiff’s new employment promotion subsidy for the reason that the new employment promotion subsidy was not objectively different from the employment promotion subsidy for the labor inspector’s.

III. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.