(영문) 서울고등법원 2018.6.15. 선고 2017누85636 판결

This part of the reasoning of the judgment of the court of first instance is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

2. Determination as to the disposition authority of this case

A. The defendant dismissed the plaintiff under Article 78 (1) 1 and 2 of the State Public Officials Act on the ground that the plaintiff was unfairly involved in the affairs of the transportation measures in the L district and the change of the M district metropolitan transportation measures, etc., and the defendant dismissed the plaintiff under Article 78 (1) 1 and 2 of the State Public Officials Act. We examine ex officio whether the defendant has the authority to take the disposition of this case against the plaintiff

B. Relevant statutes 1)

1) Details of the State Public Officials Act, etc. regarding the delegation of the right to appoint public officials of Grade V or higher;

Article 32 (1) of the State Public Officials Act provides that "the right to appoint public officials of Grade V or higher belonging to administrative agencies and public officials in general service belonging to the Senior Civil Service shall revert to the President, while "the President may delegate part of the right to appoint public officials under paragraph (1) to the competent Minister, as prescribed by Presidential Decree" in the former part of Article 32 (3) of the State Public Officials Act provides that "the President may delegate part of the right to appoint public officials under paragraph (1) to the competent Minister, and the President shall be entitled to delegate part of the right to appoint public officials to the competent Minister. Accordingly, pursuant to Article 5 (1) of the Decree of the Decree on Appointment of Public Officials, the President shall delegate part of the right to appoint public officials of Grade V or higher (including specialized public officials and part-time public officials in fixed-term public officials equivalent thereto) to the competent Minister in accordance with Article 32 (3) of the Act."

Article 32 (3) of the State Public Officials Act (amended by Act No. 7187 of Mar. 11, 2004) with the authority for appointment of the President for the public officials of Grade 5 or higher was first newly established in the State Public Officials Act as amended by Presidential Decree No. 7187 of Jun. 11, 2004. Accordingly, Article 5 (1) of the Decree on Appointment of Public Officials (including the authority for disciplinary action, such as dismissal and dismissal) comprehensively delegated part of the authority for appointment of public officials of Grade 5 or higher of the President, which was amended by Presidential Decree No. 18416 of Jun. 11, 2004, which was amended by Presidential Decree No. 18842 of Aug. 27, 2008.

On the other hand, Article 82 (1) of the State Public Officials Act provides that "public officials' disciplinary actions, etc. shall be taken by the head of an agency to which the disciplinary committee is established after the resolution of the disciplinary committee, but disciplinary actions, etc. taken by three disciplinary committees established under the jurisdiction of the Prime Minister (in cases of the National Assembly, court, Constitutional Court, and election commission, referring to the superior disciplinary committee established under the relevant central personnel management agency; hereinafter the same shall apply) shall be taken: Provided, That removal and dismissal shall be taken by each appointing authority or superior supervisory agency which delegated the authority for appointment after the resolution of the disciplinary committee." In principle, disciplinary actions against public officials of Grade V or higher shall be vested in the head of a central administrative agency, and in cases of removal and dismissal, the authority for appointment shall be vested in each appointing authority or the head of the superior supervisory agency which delegated the authority for appointment by the President pursuant to Article 32 (3) of the State Public Officials Act."

(ii) the scope of "competent Minister", the subject of the right to appoint;

Before the amendment of Article 32(3) of the State Public Officials Act (amended by Act No. 7187 of March 11, 2004, Article 32(3) of the State Public Officials Act was newly established, the appointment of public officials of Grade V or higher was delegated to the competent Minister, and the appointment of public officials has defined the meaning of "competent Minister" with the right to appoint public officials of Grade VI or lower under the State Public Officials Act (amended by Presidential Decree No. 15715 of February 28, 1998). Article 2 subparag. 3(a) of the Decree on Appointment of Public Officials (amended by Presidential Decree No. 15715 of Feb. 28, 1998) includes "the head of the Board of Audit and Inspection" within the scope of "competent Minister". Accordingly, the defendant is defined as the appointing authority exercising the right to appoint public officials of Grade VI or lower under Article 32(2) and Article 82(1) of the State Public Officials Act.

Furthermore, Article 32(3) and Article 82(1) of the State Public Officials Act (amended by Act No. 7187, Mar. 11, 2004; Article 32(3) of the State Public Officials Act; and Article 32(3) and Article 82(1) of the State Public Officials Act (amended by Act No. 7187); and Article 2 subparag. 3(a) of the existing Decree on Appointment of Public Officials, which included the defendant in the scope of the competent minister, have become a basis for interpreting that the defendant, who is the competent minister, has the right of disciplinary action, such as removal, dismissal, etc. of Grade

3) Provisions concerning the appointment and dismissal of public officials under the Board of Audit and Inspection Act

Article 18 of the Board of Audit and Inspection Act (amended by Act No. 4937, Jan. 5, 1995; Act No. 4937, Jan. 5, 1995; Act No. 4937, Jan. 5, 1995; Act No. 1006, Feb. 6, 199; Act No. 2006, Feb. 21, 2006; Act No. 2006, Feb. 22, 2006; Act No. 2000, Feb. 31, 2006)

C. Determination

1) In accordance with Articles 32(3) and 82(1) of the State Public Officials Act, Article 2 subparag. 3(a) and Article 5(1) of the Decree on Appointment of Public Officials, the Defendant delegated the Defendant the authority of disciplinary action for removal or dismissal of public officials of Grade V or higher belonging to the Board of Audit and Inspection to the Defendant corresponding to “competent minister”. Thus, notwithstanding the provisions of Article 18-2 of the Board of Audit and Inspection Act, the State Public Officials Act and the Decree on Appointment of Public Officials are first applied, and the Defendant has the right

Then, the instant disposition seems to have been taken.

2) However, in light of the following circumstances, Article 18-2 of the Board of Audit and Inspection Act is preferentially applied to the right to discipline public officials of Grade V belonging to the Board of Audit and Inspection, notwithstanding Article 32(3) and Article 82(1) of the State Public Officials Act, and Article 2 subparag. 3(a) and Article 5(1) of the Decree on Appointment of Public Officials. Therefore, the Board of Audit and Inspection has the authority to dismiss or dismiss

A) The Constitution of the Republic of Korea has established the fourth Sub-section 2 of Chapter IV concerning the Government in order to stipulate matters concerning the scope of duties of the Board of Audit and Inspection (Article 97 and Article 99), the composition (Article 98, such as appointment, etc. of the director of the Board of Audit and Inspection and the member of the Board of Audit and Inspection,) and the scope of public officials subject to audit and inspection of the Board of Audit and Inspection’s organization, scope of duties, and the scope of public officials subject to audit and inspection of the Board of Audit and Inspection under Article 100, and other necessary matters by law. As such, the Constitution separates section 2 from section 3 concerning each Ministry and section 4 concerning the Board of Audit and Inspection, thereby expressing independence in the organization and function of the Board of Audit and Inspection, while the Board of Audit and Inspection, while designating the Board of Audit and Inspection as the constitutional institution, which is the

It is a result of reflecting the constitutional demand that function such as inspection and inspection of the duties of public prosecutors, administrative agencies and public officials should be performed independently and fairly.

B) Article 2 of the Board of Audit and Inspection Act amended on January 5, 1995 upon delegation of Article 100 of the Constitution provides that “the Board of Audit and Inspection shall belong to the President, but with respect to duties, it shall have independent status (Paragraph 1), and with respect to appointment and dismissal of public officials belonging to the Board of Audit and Inspection, and with respect to the organization and budget compilation, the independence of the Board of Audit and Inspection should be respected to the maximum extent possible (Paragraph 2).” In addition, Article 18-2 concerning disciplinary action against employees belonging thereto was newly established upon delegation of the Constitution so that the Board of Audit and Inspection can perform its functions independently and fairly. In light of the purport that the Board of Audit and Inspection prescribed the Board of Audit and Inspection Act’s appointment and disciplinary action for employees belonging to the Board of Audit and Inspection upon delegation of the Constitution, the Board of Audit and Inspection Act should preferentially apply to employees belonging to the Board of Audit and Inspection’s appointment and dismissal or disciplinary action under the latter part of Article 18-2 of the Board of Audit and Inspection Act, unless there are special circumstances.

C) Furthermore, we examine whether the provisions of the State Public Officials Act or the Decree on Appointment of Public Officials of Grade V or higher apply preferentially to the latter part of Article 18-2(2) of the Board of Audit and Inspection Act.

As seen above, Articles 32(3) and 82(1) of the State Public Officials Act stipulate that the President may delegate the authority to remove and dismiss public officials of Grade V or higher through the Presidential Decree to the competent Minister, and did not directly stipulate the scope of "competent Minister" delegated by the President, or the Chairman of the Board of Audit and Inspection to the above "competent Minister" as stated above, and there is no other statutory provision stipulating the scope of "competent Minister". At present, there is no ground provision that included the scope of "competent Minister" in the scope of "competent Minister" in the State Public Officials Act, which is subordinate to the State Public Officials Act, in accordance with Article 2(3)(a) of the Decree on the Appointment of Public Officials, which is subordinate to the State Public Officials Act.

However, considering all the constitutional status and independent status of the Board of Audit and Inspection as a constitutional institution, the purport of Article 100 of the Constitution that the Board of Audit and Inspection shall determine by law other necessary matters such as the organization, scope of duties, etc. of the Board of Audit and Inspection as a constitutional institution, and the enactment of the Board of Audit and Inspection Act prior to the amendment of appointment appointment of the State Public Officials Act and appointment appointment of public officials belonging to the Board of Audit and Inspection as delegated by the Board of Audit and Inspection Act in 2004 and the detailed provisions on appointment, disciplinary procedure, etc. of public officials belonging to the Board of Audit and Inspection are stipulated in the Board of Audit and Inspection Regulations upon delegation by the Board of Audit and Inspection

Although the Board of Audit and Inspection does not have a provision that "the purpose of the Board of Audit and Inspection Act is to stipulate special cases concerning the State Public Officials Act" such as Article 1 of the Police Officials Act or Article 1 of the National Intelligence Service Employee Act, it does not affect the above conclusion on the ground that there is no such provision in the Board of Audit and Inspection Act in light of the status, status, status, and relevant

3) If so, the authority over the disciplinary action against the Plaintiff, who is a public official of Grade V, belonging to the Board of Audit and Inspection, belongs to the President, not the Defendant, and thus, the instant disposition is unlawful as long as it is against a person without authority. The instant disposition should be revoked without examining the remaining arguments of the Plaintiff.

3. Conclusion

Therefore, the disposition of this case should be revoked illegally. Since the judgment of the court of first instance with different conclusions is unfair, it is so decided as per Disposition by cancelling the disposition of this case and cancelling it.

Judges

Judges Yang Sung-ju

Judges Kim Jong-chul

Judges Oh Jeong-tae

Note tin

1) Specific details are see Attached Form.

2) The appointment of the public official is defined as including removal and removal from office in addition to new employment in the concept of "appointing" in subparagraph 2(1).

3) "Disciplinary Committee established under the Prime Minister's jurisdiction" shall have the Central Disciplinary Committee (Article 3 of the Decree on Disciplinary Action against Public Officials) as a disciplinary action against public officials belonging to the Senior Civil Service and public officials of Grade V or higher in accordance with Article 2 (2) of the Decree on Disciplinary Action against

4) Before the amendment of January 5, 1995, the Board of Audit and Inspection prior to the amendment of Article 18 of the Board of Audit and Inspection Act (the Board of Audit and Inspection Act) shall appoint and dismiss public officials of Grade III or higher at the proposal of the president, etc., and only the provision that public officials of Grade IV or lower shall be transferred to the president, and did not have any provision