(영문) 광주고등법원 2016.4.22. 선고 2016누3313 판결

On January 24, 1985, the Plaintiff was newly appointed as a local administrative secretary, and was promoted to a local administrative officer on September 3, 2013, but was transferred to the head of Gwangju Metropolitan City B team on October 14, 2013.

(b) Grounds and progress of disciplinary action;

1) On September 15, 2014, the Defendant, following the resolution of the Gwangju Metropolitan City Personnel Committee, issued a disciplinary measure to dismiss the Plaintiff on the ground that “the Plaintiff committed misconduct with the following descriptions and violated good faith and duty to maintain dignity as provided in the Local Public Officials Act, and the degree of such misconduct constitutes severe and gross negligence” (hereinafter “original measure”).

While serving in C from October 14, 2013 to February 2014, the Plaintiff, upon D’s delegation from November 2013 to February 14, 2014, instructed its employees to be exposed to the order of precedence when the former Gwangju Metropolitan City Mayor’s harmful or critical comments are exposed to E’s online portal site, and carried out an election campaign in a 24-time manner. The Plaintiff agreed to pay money and valuables or other benefits in relation to the election campaign, regardless of the pretext thereof, through a private company’s campaign, by allowing its employees not to be exposed to any disadvantage on the Internet. In return, the Plaintiff promised to pay money and valuables of KRW 350,00 to the relevant company (hereinafter collectively referred to as the “instant disposition”).

2) On September 15, 2014, the Plaintiff filed a petition review with the Gwangju Metropolitan City appeals review committee to seek cancellation of the original disposition. On November 20, 2014, the Gwangju Metropolitan City appeals review committee dismissed the Plaintiff from office on the ground that the judgment of suspending sentence against the Plaintiff was harsh in a criminal trial instituted for the same content as the grounds of the instant disposition was rendered (hereinafter referred to as “instant disposition”). Accordingly, on November 26, 2014, the Defendant was demoted from a local administrative official to a local administrative officer on September 15, 2014 and ordered the Plaintiff to suspend from office (from September 15, 2014 to December 15, 2014) for three months (hereinafter referred to as “the instant disposition”).

C. Progress of the relevant criminal trial

1) On the other hand, on March 25, 2014, the Plaintiff was charged with violating the Public Official Election Act with the same content as the grounds for the instant disposition (Seoul District Court 2014Dahap80), and on June 27, 2014, the Plaintiff was sentenced to imprisonment with prison labor for one year and two years of suspended execution (80 hours of community service).

2) The Plaintiff appealed against this and filed an appeal (Seoul High Court Decision 2014No266). The appellate court rendered a decision that the suspension of sentence (the suspension of sentence: imprisonment with prison labor for a period of eight months) was rendered on September 25, 2014 on the grounds that there were circumstances to consider the degree of participation in the crime and the developments leading to the crime. The judgment became final and conclusive on October 3, 2014 (hereinafter referred to as “related criminal trial”).

【Fact-finding without a dispute over the ground for recognition, the contents stated in Gap evidence 1 through 5, and Eul evidence 3 (including each number in the case of provisional evidence), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In light of the fact that the disposition of this case does not focus on the degree of misconduct of the disposition of this case, the plaintiff did not obtain personal benefits from it, and that the plaintiff faithfully served as a public official for more than 30 years and won various official commendation, the disposition of this case is unlawful by abusing or abusing discretionary authority.1)

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether a disciplinary measure should be taken against a person subject to disciplinary action, who is a public official, is at the discretion of the person having authority to take the disciplinary measure, and a disciplinary measure taken by the person having authority to take the disciplinary measure is unlawful only when it is deemed that the person has abused discretionary power because it substantially lacks validity under social norms. In order to deem that a disciplinary measure against a public official has considerably lost validity under social norms, taking into account various factors, including the content and nature of the misconduct causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for the determination of disciplinary measures, etc., the contents of the disciplinary measure should be determined to be objectively and objectively unreasonable (see, e.g., Supreme Court Decisions 2002Du6620, Sept. 24, 2002; 201Du29540, Feb. 27, 2014).

2) Article 7 of the Constitution provides that a public official shall be held responsible for all citizens and shall be held responsible for citizens (Article 1(1)); the status and political neutrality of a public official shall be guaranteed as prescribed by Act (Article 60(1)4); thus, the Local Public Officials Act provides that public officials shall observe Acts and subordinate statutes and perform their duties faithfully; and that public officials shall not engage in certain political activities, such as not being able to join any political organization such as any political party and any specific person; and shall not encourage any public official to vote to support or oppose a specific political party or person in an election (Article 57). The former Public Official Election Act (amended by Act No. 12393, Feb. 13, 2014) provides that public officials shall not exercise undue influence over the election, or engage in any act that may affect the result of an election (Article 9(1)4); in principle, election campaigns shall not be carried out (Article 60(1)4); and Article 85(2)5 of the Local Public Officials Act provides that public officials shall not engage in an election campaign.

3) 앞서 인정한 사실관계와 더불어 관련 법령의 내용·취지 등에 비추어 알 수 있는 다음과 같은 사정, ① 선거 과정에서 공무원의 정치적 중립은 선거의 공정은 물론 헌법상 자유선거의 원칙과 정당의 기회균등원칙을 지키기 위해 반드시 필요하고, 공무원은 국민 전체에 대한 충직한 봉사자여야 함에도 그 지위를 이용하여 특정정당 또는 특정인을 위한 선거운동에 나서는 것은 공직에 대한 국민의 신뢰를 크게 훼손하고 공직 질서를 문란하게 하는 행위로서 비난가능성이 매우 높으므로 비위의 정도가 중하다고 볼 수 있는 점, ② 설령 원고가 선거운동을 주도하지 않고 소극적으로 가담하였다는 등의 사정이 일부 있다 하더라도, 공무원의 선거 과정에서의 정치적 중립 의무 위반에 대하여는 엄격한 정계책임을 물을 필요가 있고, 공무원은 부여된 직부를 성실하게 수행하여야 할 책무가 있으므로 자신이 원하는 직무가 아니라고 하여 직무상 의무 위반이 정당화되거나 징계양정에서 유리한 정상으로 참작될 수는 없는 점, ③ 피고의 징계양정 규칙에서 성실의무 위반과 품위유지의무 위반에 대하여 '비위 정도가 심하고 중과실이거나 비위 정도가 약하고 고의가 있는 경우'에는 '강등-정직'으로 정하고 있으므로, 원고의 비위행위는 그 정도가 심하다고 보아 강등 처분을 한 것은 피고의 징계양정 규칙에서 정한 징계양정 기준의 범위 내에 있다고 보이는 점, ④ 지방자치단체의 장이 일부 공무원을 선거운동에 동원하고 공무원이 그에 동조하는 행위는 정치적 중립성을 해치는 데 그치지 않고 공직 사회를 분열시키고, 인사상 보상과 결부되는 경우 능력주의를 요체로 하는 공무원 인사제도의 근간을 훼손하는 등 그 폐해가 심각한 점 등을 종합하면, 이 사건 처분의 징계 내용이 객관적으로 명백히 부당한 것으로서 사회통념상 현저하게 타당성을 잃어 징계권자에게 맡겨진 재량권을 일탈하였거나 남용한 것으로 보기 어렵다.

4) Therefore, the Plaintiff’s above assertion cannot be accepted.

3. Conclusion

The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.

Judges

Judges Gu-Appellee

Judges Dok-ho

Judges Yang Young-hee

Note tin

1) The Plaintiff asserted that there was procedural error in the disposition of the instant case, but all of the Plaintiff withdrawn from the appeal except for the assertion of deviation and abuse of discretionary power as a substantial reason for illegality on the second day of the trial prior to remand.