2015Guhap69829 Revocation of revocation of dismissal

A

Prosecutor General;

December 4, 2015

December 18, 2015

1. The Defendant’s dismissal disposition against the Plaintiff on January 13, 2015 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff was appointed as the Prosecutor of the Prosecutor’s Office on May 12, 2000, and was promoted to the Prosecutor’s Office on March 31, 2003, and June 9, 2008, respectively. From December 6, 2010, the Plaintiff started to serve at the Prosecutor’s Office B.

B. Around the time when the Supreme Prosecutors' Office B worked, the Plaintiff obtained a profit margin of KRW 3.7 billion by hearing information on stock investment from D, which is a reporter of access to the Cth daybook, and investing in stocks, and traded stocks for the purpose of gaining profit margin during working hours.

C. On December 9, 2014, the chief prosecutor of the Seoul Central District Prosecutor’s Office requested a disciplinary resolution by taking the Plaintiff’s above act as grounds for disciplinary action. On December 30, 2014, the Seoul High Prosecutor’s General Disciplinary Committee decided to dismiss the Plaintiff. On January 9, 2015, the Defendant notified the Plaintiff that the Plaintiff was dismissed on the 13th day of the same month (hereinafter “instant disposition”). Specific grounds for disciplinary action are as follows.

A. The Plaintiff’s act of purchasing shares (hereinafter “1”) - around 6: (a) 0- around 10, 201, while working for the Supreme Prosecutors’ Office B; (b) 10, 200, 300, 400, 600, 600, 600, 600, 600, 600, 600, 600, 606, 600, 600, 600, 600, 600, 600, 600, 700, 600, 600, 60, 600, 600, 60, 700, 60,000, 70,000, 60,000,000,000,000,000,000,000,00,000).

D. The Plaintiff filed an appeal seeking revocation of the instant disposition with the Ministry of Personnel Management, but the appeals review committee dismissed the Plaintiff’s request on April 17, 2015.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, and 17, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) the existence of the grounds for the first disciplinary action

A) The Plaintiff was amended by the State Public Officials Act as Act No. 11392 on March 21, 2012, and invested in E shares by acquiring information related to E from D reporters before the enforcement on June 22, 2012 (amended by the former State Public Officials Act; hereinafter referred to as the “former State Public Officials Act”). The period of extinctive prescription under the former State Public Officials Act was two years, but the disciplinary action against the Plaintiff was taken after two years thereafter, and thus, the instant disposition was unlawful.

B) The Defendant deemed that the information acquired by the Plaintiff from D reporters was “information acquired during the performance of his duties” and deemed that the act of investing in stocks by using such information was a violation of Article 12 of the Code of Conduct. However, the Plaintiff was unable to have a personal-friendly relationship with D reporters before the Supreme Prosecutors’ Office worked in B, and there was a conflict between personal dialogue and others, and the information related to E was irrelevant to the field where the Plaintiff should collect official information. Therefore, the information acquired from D cannot be deemed as an “information acquired during the performance of his duties” and even if the Plaintiff obtained profit margins by using the information, the Plaintiff cannot be deemed as acquiring unfair profits by using his position. Nevertheless, the Defendant deemed that the Plaintiff acquired the said information while performing his duties, and thus, the instant disposition was unlawful because the Plaintiff was in violation of Article 12 of the Code of Conduct.

(ii) the existence of the grounds for the second disciplinary action.

The Defendant deemed that the Plaintiff made an investment in shares during working hours constitutes a ground for disciplinary action. Although the Plaintiff made an investment in shares during working hours, there is no evidence to deem that the Plaintiff caused interference with the Plaintiff’s performance of duties or neglected the Plaintiff’s duty. The mere fact that the Plaintiff made an investment in shares during working hours cannot be deemed to constitute a violation of the duty of good faith under Article 56 of the State Public Officials Act, and the instant disposition should be revoked.

(iii)the deviation from and abuse of disciplinary discretion;

Even if the grounds for disciplinary action are recognized against the Plaintiff, it is excessive disciplinary action to dismiss the Plaintiff compared to the act of misconduct committed by the Plaintiff. Thus, the instant disposition is contrary to the principle of proportionality. Furthermore, in light of the number of disciplinary action against public officials who gain property benefits by investing the Plaintiff in the information acquired during the performance of their duties similar to the Plaintiff, the instant disposition taken to dismiss the Plaintiff is also contrary to the principle of equality.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On February 19, 2012, E purchased the Plaintiff’s shares, there was a press report to the effect that it is inevitable to record the enemy on a series of consecutive years on February 19, 2012 and designate it as an item of management. In fact, on March 22, 2012, E was designated as an item of management.

2) On March 2012, 2012, the Plaintiff asked D to verify the above information through an employee of Samsung's information team (a department dispatched from Samsung to Samsung's intention in order to see the trend of political and press circles) and verified that D actually has contact Samsung's actual contact with the Plaintiff.

3) The Plaintiff, as a high school line, informed G engaged in stock investment business of the above information, sought advice as to whether it will make an investment in E, and G responded to the purport that it is worth investing in E on April 30, 2012. The Plaintiff had already purchased 647,371 shares before receiving the aforementioned answer from G. The Plaintiff purchased additional shares from G, and purchased 1,178,924 shares by 835,090,091 shares up to July 6, 2012.

4) On May 24, 2012, E received an investment of KRW 15 billion from H, and publicly announced that E will conduct capital increase with capital increase to H, a third party. Through such investment, on August 16, 2012, E was changed to J, the representative director of the I, and the largest shareholder was changed to H, and the trade name on March 22, 2013 was changed to F.

5) On April 20, 2012, on which the Plaintiff first purchased E’s shares, the share price of E was KRW 706 per share based on the closing price. However, on May 18, 2012, the share price began to rise since the date of public announcement that the Plaintiff would receive an investment from H after falling into KRW 533 per share. From June 4, 2012 to August 14, 2012, the Plaintiff sold shares of KRW 1,147,360 per share. On August 14, 2012, the Plaintiff sold shares of KRW 4,140 per share. The shares of E were suspended from August 17, 2012 to September 27, 2012.

6) The Plaintiff was recognized as having performed activities related to K on June 30, 2003 and received official commendation from the special prosecutor. On February 28, 2004, the Supreme Prosecutors’ Office of Justice was recognized as having contributed to the investigation of illegal election funds by the head of the Central Investigation Division of the Supreme Prosecutors’ Office.

7) On December 31, 2007, the Plaintiff was awarded a commendation upon recognition by the Minister of Justice that the Plaintiff contributed to the faithful performance of duties and the eradication of narcotics.

8) The Plaintiff written “M” portion in the name of “L” published by the Supreme Prosecutors’ Office. From May 2012 to September 2012, the Plaintiff continued to take lectures from N in Hobbebbes.

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 5, 9, 11, 12, 13, 14, Eul evidence Nos. 3 through 16, and the purport of the whole pleadings

D. Determination

1) Whether the ground for the first disciplinary action is legitimate

A) As seen earlier, the Defendant, using the information acquired from D, deemed that the Plaintiff engaged in stock transactions from April 20, 2012 to August 14, 2012, based on the information acquired from D, violated Article 12 of the Code of Conduct, and deemed the grounds for disciplinary action.

B) Article 12 of the Code of Conduct prohibits a public official from investing in securities, etc. using information that he/she has become aware of in the course of performing his/her duties. The people have the right to freely invest in the securities issued by a listed corporation through information disclosed to the listed corporation, and this also applies to public officials. However, Article 12 of the Code of Conduct prohibits public officials belonging to the Supreme Prosecutors’ Office, which is highly likely to be aware of the public by prohibiting investment in securities, etc. using information that he/she has become aware of in the course of performing his/her duties, from using such information. Therefore, even if a public official acquired information on a specific listed corporation in the course of performing his/her duties, if such information is an information already disclosed to the public, it cannot be deemed unfair benefits even if a public official is deemed to have made an investment by using such information, and prohibiting such investment by using such information may not be permitted as it infringes on the public official’s freedom to engage in economic activities through reasonable decisions.

C) On March 2012 or at the beginning of April, 2012, the Plaintiff acquired information from Samsung et al. that Samsung et al. would invest in E., and on May 24, 2012, H publicly announced that it would make a large amount of investment in E; and on May 24, 2012, H began with the rapid increase of E’s share price before this title. In light of the above circumstances, there is room to view that the Plaintiff’s act of investing in Samsung et al. in E shares by acquiring information that it would intend to invest in E before May 24, 2012, constitutes “investment by acquiring information that large enterprises would invest in E,” and thus, it constitutes “investment by using occupational information.” However, after the Plaintiff’s acquisition was already disclosed to the general public, the Plaintiff’s act of acquiring shares by using the information that it would have already been publicly announced.

D) Furthermore, we examine whether the Plaintiff’s act of selling E’s stocks from June 4, 2012 to August 14, 2012 constitutes a ground for disciplinary action separately. In light of the following, the Plaintiff’s act of investment using information acquired from D is limited to the acquisition of E’s stocks, and the Plaintiff’s act of disposing of E’s stocks thereafter is based on the Plaintiff’s own judgment, and even if the Plaintiff realized profit margin due to the act of disposal, it is merely a kind of an act of disposal after the Plaintiff’s initial act of disposal of E’s stocks, and does not constitute a separate act of disposal (the Plaintiff’s act of disposal of E’s stocks should be called a case where the Plaintiff disposed of the stocks in order to avoid losses due to the Plaintiff’s awareness that the disposal of E’s stocks would fall in the course of performing his/her duties in order to constitute a separate ground for disciplinary action, and there is no dispute between the parties concerned regarding the Plaintiff’s act of disposal of E’s stocks. Therefore, the Plaintiff’s act of disposal of stocks does not constitute a separate ground for disciplinary action.

E) Ultimately, there is room to deem that the Plaintiff violated Article 12 of the Code of Conduct among the disciplinary grounds of the first disciplinary action against the Plaintiff is the Plaintiff’s act of investing in E’s shares from April 20, 2012 to May 24, 2012. However, the State Public Officials Act amended by Act No. 11392, Mar. 21, 2012 came into force from June 22, 2012. As above, the statute of limitations for those who caused disciplinary action prior to the enforcement of the amended State Public Officials Act is in accordance with the previous provision (see Articles 1 and 2 of the Addenda of the State Public Officials Act amended by Act No. 11392, Mar. 21, 2012). As such, the provision of Article 83-2 of the former State Public Officials Act applies to the Plaintiff’s said wrongful act of the Plaintiff.

F) Article 83-2(1) of the former State Public Officials Act provides that a request for disciplinary action, etc. shall not be made after two years elapse from the date on which the ground for disciplinary action, etc. arises. As seen earlier, the Plaintiff’s act of misconduct terminated before May 24, 2012. The Plaintiff’s request for disciplinary action against the Plaintiff was made on December 9, 2014 after two years elapsed from the date on which the Plaintiff’s request for disciplinary action was made. Therefore, the Plaintiff’s act of investing shares in E with the information acquired from D constitutes grounds for disciplinary action, without any need to further examine whether it constitutes grounds for disciplinary action. Therefore, the grounds for disciplinary action against the Plaintiff

2) Whether the ground for the second disciplinary action is legitimate

A) The Defendant was deemed to have violated the duty of good faith by making the Plaintiff engage in a transaction of stocks during working hours. The Defendant was deemed to have breached the duty of good faith under the State Public Officials Act, but the public official’s performance of personal affairs, including stock transaction, including the hours of rest during working hours, cannot be deemed prohibited. In addition, even in the case of public officials in office whose working hours are not specifically set, even if they are engaged in personal affairs during working hours, such as handling of bank affairs during working hours, even if they are in charge of personal affairs to a certain extent, such investment exceeds the permissible level under the social norms, or if it does not interfere with the public official’s performance of duties, it cannot be deemed that the pertinent public official violated the duty of good faith solely on the ground that he/she carried out personal affairs during working hours.

B) However, in this case, the Defendant did not prove that the Plaintiff’s investment in order to trade personal stocks during working hours exceeded the permissible level of time, or caused interference with the Plaintiff’s business affairs. Rather, in light of the Plaintiff’s lecture experience, commendation and writing details, etc., the Plaintiff is regarded as a public official of the prosecution who was considerably able and sincere, and there is no other evidence to deem that the Plaintiff violated the duty of good faith under the State Public Officials Act.

C) The ground for the second disciplinary action also cannot constitute a legitimate ground for disciplinary action against the Plaintiff.

3) Sub-determination

The instant disposition is unlawful as a disciplinary action without legitimate grounds for disciplinary action.

3. Conclusion

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

Judge Lee Sung-soo

Judgment Notarial decoration;

Judges Yellow support

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.