[1] Details of the duty of good faith under Article 56 of the State Public Officials Act

[2] In a case where a high-ranking public official who establishes and implements policies promotes a national project, whether a wide range of discretion is recognized (affirmative), and whether the grounds for the failure to expect the implementation of the project can only be deemed grounds for disciplinary action (negative)

[3] In a case where an administrative agency’s duty of care and information that could affect the general public, such as the transaction of securities, is included in the report materials, the duty of care to be borne by the public official in charge

[1] Article 56 of the State Public Officials Act provides that “All public officials shall observe Acts and subordinate statutes, and perform their duties faithfully.” Such duty of good faith is the most fundamental and important duty imposed on public officials, which is to ensure the public interest as much as possible and to prevent the disadvantage, and to faithfully perform their duties in good faith.

[2] In a case where a high-ranking public official who formulates and implements policies promotes a national project, it requires a high-level specialized judgment on various policy factors, such as government policies and economic impacts in the field of industry at the time, and thus, considerable wide discretion is recognized, and the result of the project does not reach the expectation, and it is difficult to take the grounds for the disciplinary action only. However, if such project leads to the support for a specific company listed on the stock market, and the State promotes the company's business, it may incur expenses for preferential treatment. Furthermore, the subsidy for the listed company which is improper may seriously undermine confusion in the stock market, and trust in the government and national policies. As such, the public official who determines the support activities should be able to maintain public trust in government policies and administration and promote public interest by determining whether and how to provide a reliable project after undergoing objective verification on the feasibility, public interest and feasibility of the support project, the financial status of the company, and transparency in its management. This is the most fundamental and important content of the duty of good faith imposed on the public official.

[3] The news report materials produced by an administrative agency shall be prepared in order to protect citizens’ right to know. Although it is inappropriate to express their opinions or defend the validity of policies in the course of preparing news report materials to promote the state affairs, unlike the objective circumstances known to the administrative agency, it shall not be allowed for citizens to have a wrong perception of the relevant matters by using an exaggerated or conclusive expression despite the fact that only the positive aspects of the relevant matters have been emphasized or uncertain, unlike the objective circumstances known to the administrative agency. In particular, in cases where information that may affect the general public, such as securities transaction, is included in the news report materials, a citizen is aware that such information is recognized as having been officially recognized as being based on the administrative agency’s verification or reasonable basis, and actually causes a similar result to the public announcement in the stock market, a public official in charge bears the duty of care to prevent any information that could either be taken closely into account or misunderstanding about the authenticity of the relevant information and the ripple effect on the stock market.

[1] Article 56 of the State Public Officials Act / [2] Article 56 of the State Public Officials Act / [3] Article 56 of the State Public Officials Act, Article 63 (3) of the Regulations on Promotion of Administrative Efficiency and Cooperation

[1] Supreme Court Decision 88Nu3161 Decided May 23, 1989 (Gong1989, 1009) Supreme Court Decision 2017Du47472 Decided November 9, 2017 (Gong2017Ha, 2345)

Plaintiff (Law Firm LLC, Attorneys Nam Young-gu et al., Counsel for the plaintiff-appellant)

(2) The Minister of Foreign Affairs and Trade (Attorney Gi-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu39172 decided April 7, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal on the existence of grounds of disciplinary action

A. Article 56 of the State Public Officials Act provides that “All public officials shall observe Acts and subordinate statutes, and perform their duties faithfully.” Such duty of good faith is the most fundamental and important duty imposed on public officials, which is to ensure the public interest as much as possible and to prevent the disadvantage therefrom, and to faithfully perform their duties in good faith (see, e.g., Supreme Court Decisions 88Nu3161, May 23, 1989; 2017Du47472, Nov. 9, 2017).

B. Review of the reasoning of the first instance judgment cited by the lower court reveals the following facts.

(1) From May 23, 2008 to July 28, 2010, the Plaintiff performed an energy cooperation diplomatic mission while serving as the Prime Minister’s Foreign Affairs and Security Policy Officer. From July 29, 2010 to January 26, 2012, the Government Organization Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “the Ministry of Foreign Affairs and Trade”) changed its name to the Ministry of Foreign Affairs and Trade (hereinafter “the Ministry of Foreign Affairs and Trade”)’s name as an energy resources Ambassador, and carried out the work to assist the Minister in performing affairs and negotiations related to energy resources.

(2) On April 26, 2006, Non-Party 1, as indicated in the judgment of the court below, operated the above company as the representative director of the C&K MING KING JC, which is located as the representative director (hereinafter referred to as “C&C mining”), obtained the right to explore Damon mineral deposits located in the Moble area (hereinafter referred to as “instant mineral deposits”) from the government of the Kameronon on April 26, 2006, and searched for the Damond store of the instant mineral deposits (hereinafter referred to as “S&C mining (hereinafter referred to as “Korea”), and conducted the Damond store of the instant mineral deposits (hereinafter referred to as “C&K mining”) as the representative director of the C&K International (hereinafter referred to as “C&W International”), and all of the above companies and the non-party 1 and the non-party 1, both of the above companies and the above companies are “C&C mining (hereinafter referred to as “C&C mining”).”

(3) Around November 2008, Nonparty 1 requested the Plaintiff to provide support and cooperation at the government level on the instant mineral deposit development project, and the Plaintiff provided support to Nonparty 1 to obtain the right to develop mineral deposits from the government with Kamera in a variety of ways.

(4) On December 16, 2010, the Kmercian government granted the right to develop the mineral deposits of this case to C&K mining, and the Ministry of Foreign Affairs and Trade distributed the news report data (hereinafter “the first news report data”) to inform the above facts on the following day.

(5) However, the media raised various doubts as to the economic feasibility of the instant mineral deposit’s multimond store quantity and the mineral deposit development project, and criticism that the Ministry of Foreign Affairs and Trade had caused confusion in the stock market by publicly announcing the multimond store quantity of the instant mineral deposit through the first news report data. The Ministry of Foreign Affairs and Trade distributed additional news report data (hereinafter “second news report data”) on June 28, 201 and intended to raise such doubt.

(6) However, there was a suspicion that the instant mineral deposit’s multimond storage volume was unfilled, and the Plaintiff’s friendship and human relatives, who had the Plaintiff’s shares of the C&K, obtained unfair benefits due to the b&K’s large price increase due to the reported materials of the Ministry of Foreign Affairs and Trade’s office.

(7) Accordingly, the Board of Audit and Inspection requested the Defendant to be dismissed after undergoing investigation procedures against the Plaintiff. On June 12, 2012, the Defendant made, according to the resolution of the Central Disciplinary Committee, ① improper conduct of energy cooperation diplomatic promotion on the development of the instant mineral deposit, ② improper conduct of preparation and distribution of news report data, ③ improper conduct of transaction of stocks by a person related to duties or a relative or relative, as grounds for disciplinary action (hereinafter “Disciplinary Reason 1 through 3”), and made a disposition of demotion against the Plaintiff on the ground of violation of Article 56 (Duty of Good Faith) of the State Public Officials Act (hereinafter “instant disposition”).

C. However, the lower court, on the grounds the grounds indicated in its reasoning, determined that: (a) the preparation and distribution of the first and second reports materials about the second grounds for disciplinary action constituted legitimate grounds for disciplinary action; (b) the Plaintiff’s support activities on the side of the C&K are difficult to be deemed grounds for disciplinary action on the grounds of the following circumstances: (a) while determining that the first and second reports materials about the second grounds for disciplinary action constituted legitimate grounds for disciplinary action; (b) the Plaintiff has discretion to decide on whether to engage in the support activities for a certain company as a senior diplomat; and (c) the Plaintiff’s support activities on the side of C&K may constitute grounds for disciplinary action only with respect

D. First, we examine the grounds of appeal on the grounds of disciplinary action No. 1 in light of the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted.

(1) According to the third master plan for the development of overseas resources of the Government, the details of the grounds for the first disciplinary measure set the goal of developing overseas resources in order to enhance the self-reliance ability of major energy resources, such as petroleum, gas, and six strategic minerals (gas), and the Plaintiff did not undergo a review by the relevant specialized agencies on December 2008 as to whether the basis and content of store quantity claimed by the Plaintiff is appropriate after Nonparty 1 explained the current status of the promotion of the Damon development project from the representatives of C&K, which are private companies, on the basis of the fact that the Plaintiff did not have dealt with the Africa's Africa (No. 2-5 May 11, 2009)'s Africa's Africa's Africa's Africa's 2nd Africa's Africa's Africa's 10th e-mail process support for the Plaintiff's 10th 2nd 10th 2010.

(2) However, even based on the reasoning of the judgment of the court of first instance, the circumstances that were based on the grounds for the grounds for the first ground for disciplinary action are consistent with the actual facts.

(A) The Government of the Republic of Korea established the third master plan for overseas resources development (2007-2016) and emphasized the importance of enhancing the self-reliance ability of major energy resources, such as petroleum, gas, and six strategic minerals. In order to implement the above master plan, since the establishment of and support for diplomatic relations with countries with abundant resources was important, Korea has re-established the Embassy of the Republic of Korea in Canada on September 2008 and designated the said Embassy as an energy cooperation diplomatic mission. However, Damond did not include six strategic minerals as set forth in the above master plan.

(B) On March 208, 2008, the C&C Study requested exploration to Nonparty 3 professors affiliated with ○○ University, and conducted a research result that the estimation quantity of the instant mineral deposit was approximately KRW 736 million. The research result is based on the UN Development Plan from 1982 to 1987, and the report is based on the survey report on the mineral deposit in the area of the Mobulon zone. The report states that “The Damon level of the Mabul is still almond. The anticipated level of dignity differs depending on the place or 0.3 to 0.7 m..). However, the Embassy of the Republic of Korea sent the media report based on the above research result to the Ministry of Foreign Affairs and Trade three times, etc., on a three-dimensional basis, an objective approach to the press report by the said specialized institution was insufficient until the objective data of the report is insufficient.

around November 2008, at the time of Nonparty 1’s request for government support and cooperation on the instant mineral deposit development project, and around November 2008, C&K (Korea) and C&K mining (C) recorded a net loss in the year 2009 and year 2010, by taking over part of the share of C&K personal information whose net loss had been continuously accumulated since 2002, and by acquiring the control right of C&K’s personal information through third party’s allocation of new shares, it can be seen as having the same effect as being listed on the KOSDAQ market bypassing it. However, C&K’s capital erosion rate was 40% in 209 and 43% in 2010, and was 40% in 209 and 2010.

(C) Although the Damond store quantity of the instant mineral deposit is not clearly clear from an objective point of view, and it was not verified that the companies of the CWK have the capital ability to promote the development of the Dmond mineral deposit due to its poorness, the Plaintiff requested Nonparty 2 to cooperate in the development of the Dmond mineral deposit by sending a domain to Nonparty 2 on January 12, 2009 at Nonparty 1’s request.

On February 17, 2009, Nonparty 2 respondeded to the Plaintiff on February 17, 2009 that “The survey of the UN Development Plan is a simple basic survey, and thus, it is not possible to prove that Nonparty 3 professor announced that the quantity of mineral deposits of this case is 700 million won or more can be verified through the actual exploration. According to the person related to the Kameri mineral department, the exploration and exploitation of rare mineral resources, such as Damond, is very low possibility of success, so companies will take part in full-scale and have a large and significant number of companies at the early stage and are expected to take part in extraction, and CNK also is one of the luxi small companies in some respects.”

(D) On January 21, 2009, CCWK submitted a final exploration report containing the fact that the Damond store volume of the instant mineral deposit was 416,150,236 gress from the Government of Canada. The estimated store volume was measured by the method of multiplying the volume of Damond gres contained in the sample 1 cubic meter (hereinafter “average dignity”) by the body volume of the stramond gres to which the sample belongs. The average dignity of the gravel story of the instant mineral deposit in the above final exploration report was 0.304 m or 40 m or 0 m or 0.0 m or 0 m or 0 m or 0 m or 0 m or 0 m or 0 mlomond gres from the above final exploration report. Furthermore, according to the above final enmond mlomond gres from the production of the above average omond gres from the production of the 3rd ms.

(E) In such a situation, from May 2, 2009 to May 11, 2009, the Plaintiff visited the African countries including the Republic of Africa as a member of the “Energy Cooperation Diplomatic Representative”. At the time, the Plaintiff had an interview with the government-related persons of the Republic of Korea, such as the Minister of Commerce, Industry and Energy, and continued to engage in support activities for acquiring the right to develop the mineral deposit of this case.

(f) On March 5, 2009, the C&K mining submitted a final report accompanied by a development plan for the instant mineral deposit, and submitted an environmental impact assessment report on April 27, 2009. On this issue, the Katmanian government requested an additional investigation on the C&K mining omitted from the above final exploration report on July 2009. Accordingly, C&K processing conducted an additional investigation for calculating the estimated volume of the instant mineral deposit in six omans (one area, submitted a report after priority examination, and conducted an additional investigation on five areas thereafter) located in the new line of the instant mineral deposit from August 2009 to February 2010.

On January 7, 2010, Nonparty 2 sent a full text to the Minister of Foreign Affairs and Trade to report the progress of the above additional projects to the President of the Ministry of Foreign Affairs and Trade, and the full text was transferred to the Plaintiff as a copy. However, the above full text is divided into “a fixed mineral deposit amount, estimated mineral deposit amount, and anticipated mineral deposit amount” depending on the certainty of the deposit. However, multiple number of 416,150,000 of the mineral deposit of this case is expected to be a large store, while the past geological Resources Research Institute of France was investigating the relevant area, and it was not verified that it was failed to attract investment due to high-level exploration costs (However, the Plaintiff asserted that the exploration of the above Geological Resource Research Institute of Korea did not explore the area of this case, and the Defendant also did not present accurate data on this point. Meanwhile, Nonparty 4 of the Ministry of Foreign Affairs and Trade at the same time, Nonparty 2 of the Ministry of Foreign Affairs and Trade, at the same time, reported the development of the previous project to Nonparty 2 of this case, and the necessity of the development of the project.

However, as seen earlier, as a result of the implementation of an additional investigation into the new reverse cancer as seen earlier, the average dignity of the reverse cancer omond was significantly lower than the average dignity value (0.340 square meters/metres) as stated in the final exploration report in the previous report (0.340 cubic meters) in terms of a number of multiple or cubic meters/metres. C&C mining submitted an additional report on the results of the said investigation to the Kamere Government around the beginning of March 2010, while submitting all documents to conclude the development agreement for the development of the instant mineral deposit in the future.

(G) On February 1, 2010, the Plaintiff arranged for an interview with Nonparty 1 to Nonparty 5 (former Prime Minister) in the Office of Prime Minister, and Nonparty 1 was able to explain this opportunity to Nonparty 5 (former Prime Minister) regarding the instant mineral deposit development project. Furthermore, on May 3, 2010 through May 14, 201, the Plaintiff visited the African Republic of Africa as a member of the Africa’s “Energy Diplomatic Diplomatic mission Representative,” and the representative members, including Nonparty 5 (former Vice Minister), the representative of the Africa Africa, were the head of the Africa, by participating in the Council between the relevant ministries of the Republic of Korea, to discuss whether to conclude the development agreement on the mineral deposit of this case and dealt with the instant mineral deposit development activities.

After that, on June 15, 2010, Kameri had been held at the Cheongdae-gu's meeting for the selection of a priority cooperation station (the plaintiff attended the meeting above), which was finally selected as a priority cooperation station, and the C&K concluded on July 9, 2010 a development agreement on the development of the mineral deposits of this case with the Kameri-gu Government on the development of the mineral deposits of this case, and on December 16, 2010, Kameri acquired the development right with a term of twenty-five years with respect to the mineral deposits of this case from the Government of Kameri-gu.

(h) The Plaintiff prepared and distributed the first news report materials on the day following the date on which the C&C case had acquired the right to develop. The Plaintiff stated in the said news report materials “The estimated quantity of the instant mineral deposit is approximately KRW 4.20,000,000,000 (hereinafter “95-97 United Nations Development Plan and the result of ○○○○○ Team exploration in 07,” respectively.

However, prior to the distribution of the first news report data, the Plaintiff stated that the basis for the quantity of a multimond store of the instant mineral deposit was based on the data from the C&C case. In addition, the Korea Exchange pointed out that the said estimated quantity was not objectively verified, and accordingly, the C&K International published the fact of the acquisition of the right to develop the instant mineral deposit on December 17, 2010 as an autonomous publication, but did not publicly announce the quantity of a multimond store of the instant mineral deposit.

(i) After that, the media raises various doubts as to the economic feasibility of the instant mineral deposit’s multimond store volume and the mineral deposit development project, the Plaintiff distributed the second news report data on June 28, 201, and the report data includes “The first news report data is based on the presentation of the Kamere Government,” “The resource holding Government confirms that the method of exploration is appropriate in the course of resource exploration, there is no falsity or exaggeration in the report of exploration, and there is no violation of local laws and subordinate statutes, and that the Kamere government granted the right to develop an Amond development right to it in the course of exploration,” and “The fact that the Kamere Government officially recognized the result report of Kamere mining.”

However, while preparing the second news report data, the Plaintiff did not verify whether or not it was so strict comparison review in the course of exploration as above, and expressed that the first news report data is based on the announcement of the government dealing with Canada, which led to the misunderstanding that the amount of "not less than 4.2 billion won" recorded in the first news report data is officially recognized by the government dealing with Canada. Rather, the Plaintiff did not mention that Nonparty 6 auditors, etc. of the Board of Audit and Inspection visited Non-Party 7 of the Republic of Korea Embassy on December 14, 201, who was investigating the distribution of the news report data, visited Non-Party 7 of the Vice Minister of Foreign Affairs and Trade, and Non-Party 7 did not mention the contents of the first news report report data to be distributed to the Government of the Republic of Korea, which was inappropriate for the Government of the Republic of Korea to have no additional news report data to be distributed to the Government of the Ministry of Foreign Affairs and Trade.

(j) Meanwhile, the share price of C&W International was increased by at least 4.6 times from 3,465 won per week on December 16, 2010, the day before the distribution of the first news report data, to 3,465 won on January 10, 201, and at least 4.6 times as such, as the share price rise from December 27, 2010 to January 12, 201, three officers, etc. of the above company, including Nonparty 9, sold KRW 228,00, and the above company sold KRW 204,222 shares to approximately KRW 5.5 billion in total, and Nonparty 1, the representative of the above company sold the preemptive rights equivalent to at least 750,554 shares from December 17, 2010 to KRW 5.1 billion.

In addition, due to the continuous occurrence of various suspicions on the mineral deposit of this case, the share price of the company was reduced to KRW 7,400 on June 27, 2011, but the rise again after the media report was distributed in accordance with the distribution of the second press data, thereby reaching KRW 18,500 on August 18, 201.

(k) However, the Board of Audit and Inspection announced the audit results that the 4.200 million Won of the mineral deposit of this case was unfolded, and the prosecution conducted an investigation by Nonparty 1, etc. on the suspicion of market manipulation, and the share price of the C&K International rapidly drops rapidly. Even according to the claim of the C&K, only a small amount of 60 million Won (150 million won) was brought into the Republic of Korea for two years after the acquisition of the development right, and the outcome of the development of the mineral deposit of this case, including the fact that the C&K’s personal travel was delisting on May 2015, 201, and the fact that the C&K’s management, including Nonparty 1 and Nonparty 9, and C&K’s personal travel, and the fact that the Korea’s legal details were found to have been found to have been found to have been false and publicly announced through the Internet’s website and other unlawful means related to the transactions of the financial investment instruments.

(3) In addition, examining the above facts in light of the legal principles as seen earlier, the following is determined.

(A) In a case where a high-ranking public official who formulates and implements policies promotes national projects, it is required to make a high-level specialized judgment on various policy factors, such as government policies and economic impacts in the field of industry at the time, and thus, it is difficult to deem that the results of the project do not reach the expectation and take the grounds for the disciplinary action alone. However, if such project leads to a support for a specific company listed in the stock market, and the State promotes the company's business, it may create a preferential cost. Furthermore, if the government promotes the company's business, it may seriously undermine confusion in the stock market, and trust in the government and national policies. As such, the public official who determines the project's support activities should carefully determine whether to provide a reliable project after undergoing objective verification of the feasibility, public interest and feasibility of the project, the financial status and transparency of the company's management, etc., and then decide whether to provide support and support to the company, so that the public official should be able to maintain public trust in government policies and administration and promote public interest. This is the most fundamental and important duty of good faith.

In this case, the Plaintiff’s support for the development project of Damond mineral deposits in the Republic of Korea as part of national overseas resources development policies and energy and diplomacy may be based on a policy decision as a foreign service officer of the Ministry of Foreign Affairs and Trade. However, as to the acquisition of the right to develop the mineral deposits of this case conducted at the level of a small listed company, the Korean government has no choice but to bear national interest in the acquisition of the right to develop the mineral deposits of this case, and as a result, it is directly related to the public trust in implementing the government and overseas resources development policies and to the diplomatic relationship with Kamerc and to the foreign affairs with Kamerc and to the national confidence, and to the interests of the general investors, and thus, the Plaintiff should have carefully determined whether to provide support and support if it is deemed reliable after undergoing objective verification of the economic feasibility of the Damond mineral deposits of this case, the financial status and reliability of the Damond mineral deposits of this case including Nonparty 1.

(B) However, the instant mineral deposit, upon receipt of a request from Nonparty 1 to provide support and cooperation at the government level, is related to a multimond, which is not included in the strategic mineral specified in the basic plan for overseas resources development, and the Plaintiff was aware of the risk of the exploration and development industry of a multimond and the estimated quantity of the instant mineral deposit claimed by the C&K by the Embassy in the State of the Republic of Korea.

In addition, the fact that a large number of 4.20 million won on an estimated store as claimed by the C&K is merely a “e.g. store quantity” on the side of C&K where the basis thereof is not clear. In other words, C&K is based on the results of the investigation into the aforementioned UN development plan and the exploration into the ○○ Team. However, the results of the United Nations development plan are merely a basic investigation to verify the existence of Damond and geologicality, and it is difficult to deem that the ○○○○ University’s professors conducted some exploration activities. Meanwhile, Nonparty 3 did not constitute an independent basis for supporting the “presum store quantity.” However, the fact that the ○○○○○○○○ University’s professors did not form an exploration team, and the results of exploration into the ○○○○○○ Team’s exploration team did not seem to have been derived, and there was no other objective and scientific basis for calculating the estimated quantity of 00 mark, which is the core factor for calculating the estimated quantity, and there was no average 30.

Nevertheless, the Plaintiff did not make objective efforts to objectively verify or verify the validity of the estimated quantity of store and the economic feasibility and appropriateness of the development project of the mineral deposit of this case as well as various diplomatic support and publicity activities to enable CN to acquire the development right of the mineral deposit of this case.

(C) In addition, in around 2009, Nonparty 1’s side accepted for the purpose of bypass listing the C&K (Korea) and C&K (C&K) around 2009, the capital erosion rate was high, the damage was accumulated for several years, and C&K and C&K was merely limited to a small-scale company. As such, the Plaintiff could be sufficiently doubtful as to whether Nonparty 1 had the intent and ability to smoothly carry out the C&K development project, which requires a huge amount of funds. Nevertheless, the Plaintiff appears to have failed to undergo objective verification procedures regarding the financial situation of C&K, the operation plan of the project, etc.

(D) Furthermore, as seen earlier, C&C mining had objectively appeared from the date of acquisition of the right to develop the instant mineral deposit to know that the actual multimon store quantity of the instant mineral deposit and the actual quantity of multimond produced in the instant mineral deposit considerably falls short of the estimated store quantity claimed by C&K, but the Plaintiff did not properly confirm it and without properly ascertain it, prepared the first news report data without including the “presumed store quantity” and “the basis for its calculation” presented by C&K on the following day, and prepared the first news report data without objectively verifying the uncertainty of the business. As a result, the said estimated quantity of the instant mineral deposit that was not published to the Korea Stock Exchange based on the point of the Stock Exchange’s pointed out that it did not objectively verify it resulted in misunderstanding as being recognized through the report data of the Ministry of Foreign Affairs and Trade, thereby causing further confusion as being misunderstanding of the content of the said presumption and economic feasibility, which led to the Government’s investigation and verification of the alleged internal content of the said report, despite the fact that the said report was made more severe.

(E) It appears that the distribution of the first and second news reports containing such inaccurate content had an impact on the share market on the rapid increase of the share price in a short period. Using this, the C&K personal and Nonparty 1, by selling the shares and preemptive rights of the said company, gained large profits by selling them, while the rapid increase in the share price, are causing enormous damage to the general investors who acquired the said company’s shares, etc.

(F) As such, the diplomatic capabilities of the State, which should be trusted and successful projects, have been wasteed, the preferential costs for certain enterprises have been incurred, and the media reports that raised and criticize the above contents have been made, the national confidence in the overseas resources development business, energy cooperation diplomacy and the Ministry of Foreign Affairs and Trade promoting this was seriously damaged, and the relationship with Kamera had a negative impact on national confidence in the Republic of Korea.

(G) Comprehensively taking account of the above circumstances, even though the Plaintiff, as a high-ranking foreign service officer, has relatively wide discretion in supporting overseas resources development projects and has not sought personal benefits in relation to the instant mineral deposit development project, the Plaintiff’s selection of defective C&K side as an object of energy cooperation diplomatic support without any particular confirmation measures regarding the volume of the instant mineral deposit stores, the economic feasibility of the mineral deposit development project, and the credibility of the business entity, and not only provided diplomatic support to the C&K side, but also provided support and publicity of the project by preparing and distributing inaccurate news report materials, and thereby causing damage to the national trust and diplomatic credit of the Ministry of Foreign Affairs and Trade by allowing C&K to obtain enormous profits in the stock market, it is reasonable to deem that the instant disposition constitutes a violation of the duty of good faith of a public official. It is legitimate to deem that the instant disposition is a ground for disciplinary action.

(4) Nevertheless, on the grounds indicated in its reasoning, the lower court determined that it is difficult to deem the Plaintiff’s support activities on the side of the C&K constituted grounds for disciplinary action. Accordingly, the lower court erred by misapprehending the legal doctrine on the public official’s breach of duty of good faith, thereby adversely affecting the judgment, and the allegation in the grounds

E. Next, we examine the grounds of appeal on the grounds of disciplinary action No. 3.

In light of the purport of the entire pleadings and the result of the examination of evidence, the court shall determine whether the arguments are true in accordance with logical and empirical rules based on the ideology of social justice and equity by free evaluation of evidence. The fact that the fact that the fact-finding court has legally established is binding on the court of final appeal (Article 8(2) of the Administrative Litigation Act, Articles 202 and 432 of the Civil Procedure Act)

Recognizing the reasoning of the judgment of the first instance, the lower court determined that the third ground for disciplinary action on a different premise is not recognized, on the ground that the Plaintiff’s provision of the instant mineral deposit and multimond development right to relatives and relatives was insufficient.

The allegation in the grounds of appeal is the purport of disputing such fact-finding by the lower court, and is merely an error in the selection of evidence and the determination of the value of evidence belonging to the free evaluation of the lower court. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding

However, around the end of January 2009, the Plaintiff mentioned to the extent that he/she himself/herself is in charge of the duties related to the mineral deposits of this case at the snow family conference, and thereafter, the Plaintiff’s friendship and relatives purchased the shares of the C&K from March 2009 to January 201, 201, and some of the Plaintiff’s friendship acquired market profits by selling shares, and as a result, the Plaintiff’s friendship and relatives obtained unjust profits due to the c&K’s breadth of shares, etc., may cause a high-ranking foreign service officer and his/her affiliated Ministry of Foreign Affairs and Trade, which require high level of integrity and fairness, and thus, such circumstances may be considered as consideration materials for a disciplinary decision.

2. As to the ground of appeal on deviation from and abuse of discretionary power

A. 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, if the person having authority to take a disciplinary measure as an exercise of discretionary authority has considerably lost validity under social norms, such a measure is unlawful. In addition, in order to deem that a disciplinary measure against a public official has considerably lost validity under social norms, it should be deemed that the content of the disciplinary measure can be objectively and clearly deemed unfair in light of various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to achieve the disciplinary measure, the criteria for the determination of disciplinary measures, etc. (see Supreme Court Decisions 98Du6951, Nov. 26, 199; 2006Du16274, Dec. 21, 2006, etc.).

B. The lower court, citing the first instance judgment, acknowledged the grounds for the second disciplinary action, but determined that the instant disposition was unlawful as an excessive disciplinary action that has lost balance compared with the Plaintiff’s flight level.

C. However, examining the reasoning of the judgment below in light of the above legal principles, it is difficult to accept such judgment of the court below for the following reasons.

(1) In light of the circumstances acknowledged by the lower court as lawful by the second ground for disciplinary action and the following circumstances, the degree of the relevant misconduct is not less severe than that of the second ground for disciplinary action recognized by the lower court.

(A) The news report materials produced by an administrative agency shall be prepared in order to protect the people’s right to know. Although it is inappropriate to express their opinions or defend the validity, etc. of their policies in the course of preparing news report materials to promote the state affairs, unlike the objective circumstances known to the administrative agency, even though only the positive aspects of the relevant matters have been emphasized or uncertain, it shall not be allowed for the people to have a wrong perception of the relevant matters by using a decent expression. In particular, in cases where the information that may affect the general public, such as securities transaction, is included in the news report materials, a citizen is aware that the information was verified by an administrative agency or obtained public recognition based on a reasonable basis, and actually causes a similar outcome to the disclosure of the relevant information in the stock market, a public official in charge bears the duty of care to prevent any information that could either be misunderstanding or misconsible from being recorded in the news report materials.

(B) However, the Plaintiff appears to have sufficiently known that the report data in the name of the Ministry of Foreign Affairs and Trade on the instant mineral deposit development project was officially confirmed and publicized in the Ministry of Foreign Affairs and Trade at the level of the Ministry of Foreign Affairs and Trade, and that its content is different from the self-report of the C&K’s own news, and that its content may have a direct and indirect impact on the stock market. Nevertheless, as seen earlier, the Plaintiff’s constructive quantity of the instant mineral deposit stated in the first report data is a weak presumption, and without a specific explanation on the basis of such presumption, it could be distorted about the economic feasibility of the instant mineral deposit when it is announced only “4.20,000,000,000” without a specific explanation on the basis of such presumption. Considering such risk, the Plaintiff’s announcement of the said numerical value in the stock market would not cause serious confusion to investors as if it were supported by objective and scientific exploration results, and it would not be deemed that the Plaintiff’s failure to perform his/her duty to perform his/her duty would be somewhat undermining the Plaintiff’s own interests.

(2) In addition, unlike the judgment of the court below as seen earlier, the grounds for disciplinary action No. 1 may be recognized as legitimate until the grounds for disciplinary action, and the high-ranking foreign service officers or the Ministry of Foreign Affairs and Trade’s reliance on the share transaction of the friendship and personal details may also be considered as the grounds for disciplinary action. In full view of these circumstances, it is difficult to readily conclude that the instant disposition taken by the Plaintiff, which was demoted, was excessively harsh to the Plaintiff to the extent that it considerably lacks validity under the social norms, and thus, deviates from the scope of discretionary authority.

D. Therefore, the lower court’s determination that the instant disposition was unlawful as it deviates from or abused the discretionary power, as seen earlier, is erroneous in the misapprehension of the judgment as to the grounds for disciplinary action No. 1 and by misapprehending the legal doctrine on deviation and abuse of discretionary power, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)