In a case where a disposition of probationary appointment is revoked on grounds that a person appointed as a regular public official becomes disqualified as prescribed in Article 31 subparagraph 4 of the Local Public Officials Act at the time of the disposition of probationary appointment, and the disposition of regular appointment is revoked accordingly, the case holding that the revocation of the disposition of regular appointment is unlawful, on the grounds that it is unnecessary to undergo administrative procedures due to its nature and it does not constitute a case where the application of the Administrative Procedures Act is excluded; thus,

Article 3(2)9, Article 21(4), and Article 22(4) of the Administrative Procedures Act; Article 2 subparag. 3 of the Enforcement Decree of the Administrative Procedures Act; Article 31 subparag. 4 of the Local Public Officials Act

[Plaintiff-Appellant] 2006Du20631 decided September 21, 2007 (Gong2007Ha, 1682)

[Defendant-Appellant] Plaintiff (Attorney Park Jong-hoon, Counsel for defendant-appellant-appellant)

The head of the District Office of Education of the Cheongcheon-do Office of Education (Law Firm Cheongju, Attorneys Yu Jae-sik et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2008Nu1014 decided August 21, 2008

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. On the second ground for appeal

According to the reasoning of the judgment below, the court below determined as follows: (a) on September 13, 2001, the Daejeon District Court sentenced the plaintiff as a regular public official on October 1, 2001 under the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter "the records of this case"); and (b) on September 21, 2001, the defendant conducted a limited competitive examination for appointment with a disqualified person under Article 31 of the Local Public Officials Act as a qualified person; (c) on May 1, 2005, the plaintiff was appointed as a local assistant inspector (hereinafter "the probationary appointment disposition of this case"); and (d) on November 1, 2005, six months later, the plaintiff was appointed as a regular public official on November 1, 2005 (hereinafter "regular appointment disposition of this case"); and (e) the defendant confirmed that the grounds for disqualification, who was a public official, at the time of the probationary appointment of this case, was not subject to the revocation of the appointment of the plaintiff under Article 301 of the Local Public Officials Act.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are justified, and there is no violation of the rules of evidence and misapprehension of legal principles as to the principle of proportionality as alleged.

This part of the grounds of appeal cannot be accepted.

2. On the first ground for appeal

A. According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, where an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, it shall notify the parties concerned, etc. in advance of the facts causing the disposition, contents of and legal grounds for the disposition, the purport that they may present their opinions, and the method of disposal when they fail to present their opinions. In cases where other Acts and subordinate statutes do not provide that a hearing shall be held or a public hearing shall be held, the parties concerned, etc. shall be given an opportunity to present their opinions. “When a certain disposition should be taken if no qualification required by Acts and subordinate statutes is available or no qualification is extinguished, objectively verified by the court’s trial, etc.” (Articles 21(4)2 and 22(4) of the Administrative Procedures Act) and “where an administrative agency has considerable reasons to believe that hearing opinions is considerably difficult or unnecessary due to the nature of the disposition in question, 200 prior notice or 222(4) of the Administrative Procedures Act shall not be revoked or 50.

Meanwhile, Article 3(2) of the Administrative Procedures Act provides that “this Act shall not apply to matters falling under any of the following subparagraphs.” Article 3(2)9 provides that “The matters deemed difficult or unnecessary to complete administrative procedures due to the nature of the pertinent administrative action, such as conscription, call-up under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action under the Acts and subordinate statutes concerning public officials’ personnel affairs, and other dispositions or adjustment of interests pursuant to the Acts and subordinate statutes, and those prescribed by the Presidential Decree, which have gone through procedures equivalent to administrative procedures, are excluded from the application of the Administrative Procedures Act.” Article 2 of the Enforcement Decree of the Administrative Procedures Act provides that “The matters prescribed by the Presidential Decree” under Article 3(2)9 of the Act refers to those falling under any of the following subparagraphs.” Article 3(3) provides that “Where it is difficult or unnecessary to ensure the fairness, transparency, and credibility of the participation of the public in the administrative process, and to protect the rights and interests of the public, it shall be deemed that the administrative procedure is not applied to 20.

B. In light of the above legal principles and relevant Acts and subordinate statutes, the disposition revoking a regular appointment disposition, such as the instant disposition, is an infringement on the plaintiff's interest, and on the other hand, the Local Public Officials Act and its Enforcement Decree do not require procedures equivalent to administrative procedures in cancelling a regular appointment disposition as seen in the instant disposition, and it is difficult to view the above disposition as a disposition which is difficult or unnecessary due to its nature, and thus, it does not constitute a case where the instant disposition is excluded from the application of the Administrative Procedures Act. Furthermore, unlike the instant disposition on appointment as a public official under subparagraph 4 of Article 31 of the Local Public Officials Act, the instant disposition does not constitute an exceptional case where prior notice is not given to the plaintiff or an opportunity to present opinions is not granted pursuant to Articles 21(4) and 22(4) of the Administrative Procedures Act, on the ground that the above disposition was void as a public official due to the invalidation of the aforementioned disposition on appointment, and thus, it does not constitute a case where a separate regular appointment disposition after the above disqualification is revoked.

Thus, insofar as the defendant did not give the plaintiff a prior notice of the disposition or give an opportunity to present his opinion in rendering the disposition of this case, the disposition of this case is unlawful on the ground of procedural defect.

Nevertheless, the court below concluded that the disposition of this case constitutes a case where the application of the Administrative Procedures Act is excluded due to its nature as it is unnecessary to go through an administrative procedure, and rejected the plaintiff's assertion that the disposition of this case is unlawful due to its procedural defect. In so determining, the court below erred by misapprehending the legal principles on the interpretation of Article 3 (2) 9 of the Administrative Procedures Act and Article 2 subparagraph 3 of the Enforcement Decree thereof, and it has affected the judgment.

The part of the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)