[1] Where disciplinary action is taken against a person subject to disciplinary action who is a public official, the limit of discretion of the person with authority to take disciplinary action and whether the disciplinary action can be maintained in a case where it is sufficient to recognize the validity of the pertinent disciplinary action only with some other grounds for disciplinary action (affirmative)

[2] The case holding that the act of a public official in charge of prison contract entering into a negotiated contract with a specific construction company to exclude the selected construction company by submitting a lowest price estimate related to the project for the extension of a prison room, and the act of entering into a negotiated contract with a specific construction company to submit a third and third estimate, and the act of entering into a negotiated contract with a defense counsel meeting room exceeding 20,000 won without two or more estimates constitutes a violation of the State Public Officials Act, etc. and constitutes a legitimate

[1] Article 78 (1) of the State Public Officials Act, Article 27 of the Administrative Litigation Act / [2] Articles 56 and 59 of the State Public Officials Act, Article 26 (1) 1 of the Enforcement Decree of the Act on Contracts to Which the State is a Party

[1] Supreme Court Decision 2002Du6620 decided Sep. 24, 2002 (Gong2002Ha, 2587) Supreme Court Decision 2002Du11813 decided Nov. 12, 2004

Plaintiff

One person outside the juvenile reformatory;

Daejeon High Court Decision 2009Nu1219 decided October 1, 2009

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

The grounds of appeal are examined.

1. Whether to take a disciplinary measure 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. However, the disciplinary measure is unlawful only when it is recognized that a person having authority to take the disciplinary measure has abused the discretionary power that has been entrusted to the person having authority to take the disciplinary measure because the disciplinary measure significantly lacks validity by social norms. Even if a part of the disciplinary measure is not recognized, if it is sufficient to recognize the validity of the disciplinary measure only by some other disciplinary reasons recognized, it shall not be illegal even if the disciplinary measure is maintained (see Supreme Court Decisions 2002Du6620, Sept. 24, 2002; 2002Du1813, Nov. 12, 2004).

2. The court below determined that the reprimand and removal from the position of this case should be revoked on the grounds of the grounds of the grounds of the grounds of the grounds of the Nos. 1 through 3 of this case, but the judgment of the court below is not acceptable for the following reasons.

A. As to the grounds of disciplinary action No. 1 of this case

Examining the reasoning of the lower judgment in light of the records, the lower court’s determination that the grounds for the first ground for disciplinary action cannot be recognized on the grounds as stated in its reasoning is justifiable in the relevant statutes.

B. As to the grounds for disciplinary action No. 2 of this case

Article 39(4) of the Enforcement Decree of the Act on Contracts to Which the State Is a Party, and Article 44 subparag. 4 of the Enforcement Rule of the said Act provide that “The same matters shall become null and void when the same person submits two or more tenders, etc.,” and each of the above provisions is justified in the judgment below to the same effect, where a negotiated contract is concluded, which is not a bidding method, for grammatic interpretation.

However, according to the records, while entering into a private contract for the extension of the office of this case, the plaintiff selected the non-party 2 corporation, including the non-party 1 corporation, at the lowest price, after receiving a written estimate from the three companies including the non-party 1 corporation, and the non-party 3 had the owner of the building submit a written estimate to the non-party 2 corporation, and had the non-party 1 corporation submit a written estimate to the non-party 1 corporation again to the non-party 1 who is higher than the amount of the written estimate to the non-party 2 corporation, and entered into a private contract with the non-party 1 corporation again. According to the resolution of this case against the plaintiff, the disciplinary committee determined that the "the facts of suspicion that the non-party 1 submitted three copies of the written estimate to the non-party 1 corporation in relation to the extension of the office of the court below" were grounds for disciplinary action, and if the plaintiff, who is a public official in charge of the contract, was excluded from the duty of the non-party 2 corporation and the non-party 1 corporation 5 contract.

Thus, the ground for disciplinary action No. 2 of this case shall be a legitimate ground for disciplinary action.

C. As to the ground for disciplinary action No. 3 of this case

Article 26(1)1 of the Enforcement Decree of the Act on Contracts to Which the State Is a Party provides that “Where it is possible to enter into a free contract, such as natural disasters, military forces movement, emergency events, such as urgent relief from flood, etc., emergency situation such as urgent relief, price increase of raw materials, etc., and other similar cases, there is no time for competition.” The main text of Article 30(1) of the Enforcement Decree provides that “the head of each central government agency or the public official in charge of contracts shall obtain a written estimate from two or more persons when intending to enter into a free contract.” However, Article 26(1)1 of the Enforcement Decree of the said Act does not provide for exceptions that may be based on a written estimate received from one person in cases of Article 26(1)1 of the said Enforcement Decree. In addition, it does not constitute exceptional cases where the estimated price of the defense counsel meeting room of this case exceeds KRW 20,000,000 for an estimate received from one person based on an estimated price.

Meanwhile, the “Guidelines for the Operation of Local Government Negotiated Contract” indicated by the lower court stated in the “Guidelines for the Management of Local Government Negotiated Contract” as “natural disaster, military forces movement for operation, urgent event, raw material price increase, and other similar causes”. However, in view of the provisions of Articles 26(1)1 and 30(1) of the Enforcement Decree of the Act on Contracts to Which the State Is a Party and the systematic content of the “Guidelines for the Management of Local Government Negotiated Contract” as indicated above, the phrase “natural disaster, military forces movement for operation, urgent event, raw material price increase, and other similar causes” merely indicate cases where the subject of a negotiated contract can be determined by a free contract, and cannot be deemed to include exceptional cases where the subject of a negotiated contract

Thus, the extension of the defense counsel meeting room of this case does not constitute a case where a free contract can be concluded through a written estimate received from one person. Thus, the plaintiff's conclusion of the contract for the extension of the defense counsel room of this case without obtaining more than two written estimates constitutes a ground for disciplinary action due to a violation of relevant Acts and subordinate statutes. The plaintiff's act cannot be justified merely because the plaintiff entered into a contract for the extension work according to the order of the head of prison and completed the construction work.

D. Sub-committee

Therefore, the judgment of the court below that revoked the reprimand disposition and removal from position on the ground that all disciplinary reasons of the No. 1 through No. 3 of this case are not recognized, is erroneous in the misapprehension of the laws and regulations on contracts to which the State is a party and failing to exhaust all necessary deliberations, which affected

3. 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 Young-chul (Presiding Justice)