2014Guhap8211 Action demanding revocation of revocation of dismissal

A person shall be appointed.

Attorney ○-○, et al.

B Head of the local government

○○○○ Law Firm

[Defendant-Appellee] Defendant 1

April 21, 2015

May 26, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On January 1, 2014, the defendant dismissed the plaintiff on January 1, 201 and revoked the disposition of imposing disciplinary surcharge.

1. Details of the disposition;

A. On February 27, 1992, the Plaintiff was appointed as a police assigned for special guard of a local government B on February 27, 1992 and worked for the Plaintiff.

11. From August 18 to January 1, 2013, construction and transportation of local governments B has been in charge of the imposition of fines for negligence on liability insurance and regular inspection fines.

B. While performing the above duties, the Plaintiff embezzled KRW 1,95,400, out of the charges for the imposition of liability insurance and the charges for regular inspection, 13 times in total from November 18, 2008 to January 1, 2013 (hereinafter “instant misconduct”).

C. On January 1, 2014, the Defendant dismissed the Plaintiff pursuant to Article 5-2 of the Police Assigned for Special Guard Act and imposed a surcharge of KRW 1,955,400 on the Plaintiff (hereinafter “instant disposition”).

D. The Plaintiff filed an administrative appeal with the Gyeonggi-do Administrative Appeals Commission, but the Gyeonggi-do Administrative Appeals Commission dismissed the Plaintiff’s appeal on May 14, 2014.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 (including each number, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion 1) Article 2 (1) of the Rules on Disciplinary Measures against Local Public Officials of B local Governments (hereinafter "Rules of this case") which are applied mutatis mutandis by Article 5 of the Rules on Disciplinary Measures against Local Public Officials of Local Governments (hereinafter "the Rules of this case") provides that "Embezzlement such as public funds" and "misappropriation such as public funds" are separate grounds for disciplinary measures, and the criteria for disciplinary measures such as "misappropriation such as public funds" are set for "disputation", depending on the seriousness of the relevant misconduct, and the criteria for disciplinary measures such as demotion are excessive to the extent that the criteria for disciplinary measures such as corruption should be applied to the plaintiff, who is a higher norm, in light of Article 2 (1) [Attachment 1] of the former Rules on Disciplinary Measures against Public Officials of Local Governments, and thus, the criteria for disciplinary measures such as "the extent that the plaintiff's administrative fines in this case should be easily applied to the plaintiff, who is subject to disciplinary punishment in the light of the nature of the punishment of this case, and the criteria for disciplinary measures such as "the plaintiff's's administrative fines in this case."

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Relevant legal principles

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, it shall be decided at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take the disciplinary measure as an exercise of discretionary authority has considerably lost validity and thus the person having authority to take the disciplinary measure has abused discretionary power, it may be illegal. If the disciplinary measure against a public official has considerably lost validity under social norms, the disciplinary measure shall be determined based on various factors, including the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, and the criteria for the determination of the disciplinary measure, which are objectively and objectively unfair.

In the case where a disciplinary action violates the principle of proportionality or the principle of equality by selecting an excessive disciplinary action, which is contrary to the principle of public interest that should exercise the right for public interest for public interest purposes even if the exercise of the right of disciplinary action is at the discretion of the appointing authority, or by selecting an excessive disciplinary action, which is contrary to the standards of general application of the same degree of flight without justifiable grounds, and thereby violates the principle of equality, such disciplinary action is unlawful as it goes beyond the limits of discretion. 2) Article 2(1) [Attachment 1] and [Attachment 2] Article 2(1) of the Rules of this case, and [Attachment 2] of the Rules of this case, whether the individual criteria for disciplinary action should be excluded in violation of superior norms.

Article 8 (1) of the Regulations on Disciplinary Action against Local Public Officials and Appeal shall be prescribed by the regulations of the relevant local government within the scope of the standards determined by the Minister of Security and Public Administration or the Minister of Education, and accordingly, Article 2 (1) [Attachment 1] through 2] of the Rules of this case. However, the Rules of this case or the Enforcement Rules of the Decree of the Decree on Disciplinary Action against Public Officials shall not be binding on the defendant, but shall only serve as the criteria for the disciplinary action. However, in the case of local public officials, the Enforcement Rules of the former Enforcement Rule of the Decree on Disciplinary Action against Local Public Officials shall be applicable, and the criteria for disciplinary action may vary somewhat depending on the relevant local government. Thus, Article 2 (1) of the Rules of this case / [Attachment 2] of the Rules of this case shall not be deemed to have exceeded the criteria for disciplinary action prescribed in Article 2 (1) [Attachment 1] of the former Enforcement Rule of the Decree on Disciplinary Action against Public Officials, even if the criteria for disciplinary action was set by separate grounds.

3) Determination as to whether there is a deviation or abuse of discretionary power

Recognition of Gap evidence 2 through 8, Eul evidence 1 and the purport of the whole pleadings

The following circumstances: ① The Plaintiff is a local public official who is in need of integrity, morality, etc.; the instant misconduct in light of the nature of the Plaintiff’s work, which is currently in charge, is likely to be subject to criticism in itself; ② the Plaintiff has impaired public confidence in the payment and management of various administrative fines, etc. by preventing the instant misconduct; ② the Plaintiff, in the course of carrying out the duties of imposing and collecting administrative fines, has affixed a deposit sheet to the head of the traffic administration team in order to pay the administrative fines; and ② the Plaintiff has affixed a seal on the deposit request of the head of several hundreds of accounts in advance. The Plaintiff used some of the administrative fines for negligence in arrears, which remain in the ordinary accounts due to not accurate payment of the payer and the number of the vehicles deposited by the obligor, and used them for personal purposes [the extent that the Plaintiff’s act of embezzlement is unreasonable” as stated in the attached Table 1, 95, 40, and 140, which are deemed to constitute a disciplinary measure for the pertinent case’s period exceeding 23 years.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Park Nam-cheon, Counsel for the defendant

Judges Kim Jae-hee

Judges Kim Gin-han

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.