[1] Whether the head of a local government under his/her jurisdiction is obligated to demand disciplinary action to the competent personnel committee where the specific act of a public official under his/her jurisdiction constitutes grounds for disciplinary action (affirmative)

[2] The case holding that a public official's act of participating in the strike led by the Korean Public Officials' Union constitutes grounds for disciplinary action to the extent that it is recognized as a person with authority to request a disciplinary decision by the head of the local government to whom he belongs, on the grounds that he/she violated his/her official duties such as collective action prohibition duty under Articles 48 through 50 and 5

[3] The purport of Article 73-2(1) of the Local Public Officials Act which provides for the prescription of the grounds for disciplinary action, and the content of the official duty to be imposed by the appointing authority in the event of the grounds

[4] In a case where a public official performs his/her duties in any form with his/her intent to perform his/her duties, whether a crime of abandoning his/her duties is established solely on the ground that the contents of his/her duties are

[5] The case holding that an act of the head of a local government's order to request a disciplinary decision or to provide guidance to public officials belonging to a public official who participated in the strike led by the Korean Public Officials' Union does not constitute a crime of abandonment of duty in consideration of the degree of participation and degree of participation in the disciplinary committee

[1] In full view of the provisions regarding disciplinary action against a local public official, the head of the local government who is the person having authority to take an action and the person having authority to appoint the local government has discretion to determine whether the specific act of the public official under his/her jurisdiction constitutes grounds for disciplinary action under Article 69(1) of the Local Public Officials Act, but is obliged to

[2] The case holding that a public official's act of participating in the strike led by the Korean Public Officials' Union constitutes grounds for disciplinary action to the extent that it is recognized as a person with authority to request a disciplinary decision by the head of the local government to whom he belongs, on the grounds that it violates the duty of prohibition of collective action and prohibition of removal from work under Articles 48 through 50, 58

[3] Article 73-2(1) of the Local Public Officials Act provides that if a public official fails to proceed with a disciplinary procedure or fails to continue to exist for a certain period of time, he/she shall not ask the legitimacy and feasibility thereof if the situation continues to exist, thereby ensuring the stability of the public official, and the appointment authority shall not be construed to have made a request for a disciplinary decision only within the period of prescription. Rather, in light of the purport of Article 2(1) and (6) of the Local Public Officials Discipline and Appeal Regulations, the appointment authority shall, without delay, request a disciplinary resolution to the competent personnel committee where the public official under his/her jurisdiction is deemed to have a ground for disciplinary action after making an adequate investigation into the grounds for disciplinary action, and then, the appointment authority shall be obligated to make a request for a disciplinary decision without delay, unless there are special circumstances.

[4] The crime of abandonment of duties is not established in all cases where a public official neglects his/her abstract duty by law, rule, etc., but is established only in cases of infringement of legal interests with a specific risk of undermining the function of the State and causing damage to the people, such as neglecting of permission from a workplace or waiver of duties, and with a high degree of illegality and responsibility. Thus, if a public official performs his/her duties with his/her intent to perform his/her duties in any form, the establishment of the crime of abandonment of duties is not recognized solely on the

[5] The case holding that an act of the head of a local government's order to request a disciplinary decision or to provide guidance to public officials belonging to a public official who participated in the strike led by the Korean Public Officials' Union shall not constitute a crime of abandonment of duties, in consideration of the degree of participation not requested by the competent personnel committee but the degree of participation

[1] Articles 69(1) and 72(1) of the Local Public Officials Act, Articles 2(1) and 8 of the Local Public Officials Discipline and Appeal Regulations / [2] Articles 48, 49, 50, 58, and 69(1) of the Local Public Officials Act, Article 2(1) of the Local Public Officials Discipline and Appeal Regulations / [3] Article 73-2(1) of the Local Public Officials Act, Article 2(1) and (6) of the Local Public Officials Discipline and Appeal Regulations / [4] Article 122 of the Criminal Act / [5] Article 122 of the Criminal Act

[2] Supreme Court en banc Decision 2005Do62 Decided March 22, 2007 (Gong2007Sang, 543) / [4] Supreme Court Decision 2003Do3718 Decided October 24, 2003, Supreme Court Decision 2004Do5259 Decided October 28, 2004, Supreme Court Decision 2003Do431 Decided May 12, 2005

Defendant

Defendant

Law Firm Busan, Attorneys Yoon In-sap et al.

Ulsan District Court Decision 2005No1065 decided Feb. 3, 2006

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

A. Article 69(1) of the Local Public Officials Act (hereinafter “Act”) provides that “When a public official falls under any of the following subparagraphs, a resolution shall be requested and disciplinary action shall be taken according to the result of the resolution. 1. When this Act, an order issued thereunder, or an ordinance or rule of a local government is violated, 2. When a public official violates his duties or neglects his duties, 3. When he commits an act detrimental to his dignity, 3.” Article 72(1) of the same Act provides that “Disciplinary action shall be taken by the appointing authority through a resolution of the personnel committee.” In addition, Article 2(1) of the Local Public Officials Discipline and Appeal Regulations provides that “Where a public official under the jurisdiction of Article 7(1) of the Act is deemed to fall under any of the subparagraphs of Article 69(1) of the Act, a resolution on disciplinary action shall be requested without delay to the committee having jurisdiction over the relevant disciplinary case.” Article 8 provides that “The standards for disciplinary action or the Minister of Education and Human Resources Development shall be determined within the scope of the committee.”

As above, Article 69(1) of the Act provides that "if a public official falls under a disciplinary cause, ............................." Article 2(1) of the Local Public Officials Discipline and Appeal Regulations provides that "if a public official belonging to the Do is deemed to have a disciplinary cause, a resolution on disciplinary action shall be requested without delay to the committee having jurisdiction over the relevant disciplinary case." In imposing a disciplinary action against a public official belonging to the appointment authority, the appointment authority must make a request for disciplinary action to the personnel committee and comply with the deliberation and resolution. In order to protect the rights and interests of a local public official by checking the appointment authority's arbitrary disciplinary action, and promote the fairness and fair operation of the procedure so as to ensure fairness of disciplinary action as well as to protect the rights and interests of a local public official. In full view of the provisions related to the disciplinary action of a local public official, the personnel committee provides that the head of a local government who has authority to take disciplinary action and the head of a local government shall determine whether specific action constitutes a disciplinary cause provided for disciplinary action.

B. Examining the reasoning of the judgment below in light of the records, the entire strike of this case by the so-called National Public Officials Workers' Union (hereinafter "major union") on November 15, 2004 constitutes a collective refusal of duties committed simultaneously by local governments under a thorough plan, and an act by 213 public officials belonging to the North-gu Seoul Metropolitan City North Korea Office (hereinafter "North Korea Office") by 213 public officials belonging to Ulsan Metropolitan City Office (hereinafter "North Korea Office") violates the duty of prohibition of collective action and prohibition of escape from work as stipulated in Articles 48 through 50, and Article 58 of the Act, and thus constitutes a disciplinary cause to the extent that the appointment authority's duty to request a disciplinary decision is recognized (see Supreme Court en banc Decision 2005Hu62, Mar. 22, 2007).

In the same purport, the court below is just to have determined that the defendant, who is the head of North Korea, has a specific obligation to make a request for a disciplinary decision without delay with respect to public officials belonging to the above North Korea office, and there is no error of law such as misunderstanding of legal principles in relation to such request

2. As to the third ground for appeal

Article 73-2(1) of the Act provides that “The request for a disciplinary decision shall not be made at the expiration of two years (three years in the case of accepting money, goods, and entertainment, and the embezzlement and misappropriation of public funds) from the date on which the grounds for the disciplinary decision occurred.” However, even if there is any misconduct corresponding to the grounds for the disciplinary decision, this purport is to ensure the stability of public officials by respecting the status of public officials by respecting the status of public officials without asking the legality, feasibility, etc. if a public official fails to proceed with the disciplinary decision in accordance with the grounds for the disciplinary decision or where the state of the fact continues for a certain period, and the person who has the authority

Rather, in light of the purport of Article 2(1) and (6) of the Local Public Officials Discipline and Appeal Regulations stipulating that when a public official under his/her jurisdiction is deemed to have grounds for disciplinary action after fully investigating the grounds for disciplinary action, the appointing authority shall request the competent personnel committee to make a disciplinary resolution without delay. In light of the purport, the appointing authority shall investigate the grounds for disciplinary action upon the occurrence of the grounds for disciplinary action, and shall have an official duty to make a request for disciplinary

According to the records, since the prosecution date of this case ( February 22, 2005) which can be deemed to have passed a considerable period from the general strike date has already been specific obligation to request a disciplinary decision to the competent personnel committee, the argument in the grounds of appeal cannot be accepted.

3. As to the fourth ground for appeal

A. Examining the reasoning of the judgment below in light of the records, the court below's determination that the general strike of this case constitutes "the same case where the public officials of the Republic of Korea different agencies belong to different agencies" and therefore the disciplinary jurisdiction of 213 public officials belonging to the North-gu Office participating in it pursuant to Article 72 (1) of the Act is just and acceptable, and there is no violation of the law of misunderstanding the legal principles as to the jurisdiction of disciplinary action like the assertion.

B. As seen earlier, the Defendant, the head of the Gu, at least before the date of the instant prosecution, shall be deemed to have fulfilled specific duties to request a disciplinary decision to the Ulsan Metropolitan City Personnel Committee for Ulsan Metropolitan City with 213 public officials belonging to the North Korean Office who participated in the general strike of major workers on November 15, 2004. As such, the Defendant approved the draft of the statement that he would request a disciplinary decision to the committee for the personnel committee of Ulsan Metropolitan City with regard to the public officials belonging to the North Korean Office who participated in the general strike on December 1, 2004, and rejected the Defendant’s request for a disciplinary measure against eight to eight persons, stating that “the rest of Nonindicted 9 and 205 persons other than 9 are winding to provide guidance,” and the Defendant, as soon as possible, pursuant to the direction of the committee for the personnel committee for the public officials of Ulsan Metropolitan City with regard to the foregoing disciplinary decision, shall be ordered to take a disciplinary measure against those who participated in the strike as soon as possible, and the Defendant’s order to take a disciplinary decision to the same end.

However, according to the records, the following circumstances are recognized.

First, in 202, the defendant was elected to the head of the Gu with the authority to guarantee the three labor rights of public officials including collective action rights in the election of the head of the local government, and it seems reasonable to recognize the three labor rights of public officials in light of the lecture order of the political party to which he belongs or personal convictions. However, since the general strike of this case ultimately causes damage to the people, the strike of this case did not agree or agree with the strike, and did not agree with the task, and decided to faithfully consider the responsibility of the public officials to refrain from collective action. The executive officers such as the deputy head of the local government stated that they conducted a plan to prepare a collective action response plan (see Investigation Records 941, 950 pages. Meanwhile, the ratio of participation in the strike and the number of public officials who participated in the work among four preceding districts in Ulsan Metropolitan City was the largest, and the testimony of the defendant and the chief of the office of the first instance trial to the effect that the defendant and the chief of the first instance trial were not able to participate in the work of the Seoul Metropolitan City.

Second, in the Ministry of Government Administration and Home Affairs and Ulsan Metropolitan City, on September 13, 2004 and the 15th of the same month, the following contents were sent to the local government on September 13, 2004, "Guidelines on the Act of Soliciting Funds by Illegal Public Officials," "Guidelines on the Disciplinary Measures related to Major Labor Relations" on November 6 and 9 of the same year, "Guidelines on the Disciplinary Measures related to Major Labor Relations", and on the 10th of the same month and the 12th of the same month, the "Guidelines on the Additional Measures related to the Disciplinary Measures related to Major Labor Relations" were illegal collective actions against public officials, and the total strike is a serious situation that disturbs the State's function and threatens the State's security, and thus, it cannot be deemed that the measures of compulsory enforcement and order have been taken under the law regulating each local government (see Constitutional Court Order 2006Hun-Ga305, Mar. 13, 2006).

Third, according to the defendant's visit on December 1, 2004, the defendant's order to take the same measure is " even if it is recognized that three labor rights are demanded," the defendant shall not be held responsible for the part where he knows inconvenience and apprehensions to Gu residents by leaving his workplace without permission. The majority of employees decided to give a warning at the level of strict warning, taking into account the circumstances such as where he was engaged in behavior in accordance with the labor union guidelines, a usual relationship, and a sincere performance of duties, etc. However, the labor union officers who actively organized collective behavior are to refer to the Disciplinary Committee, which is not responsible for general employees. It is the same as that of the head of each organization. It is difficult for him to take the same measure as his own staff, and there is no pain for him to do so. In such circumstances, the defendant's order to take disciplinary action should be interpreted to be excessive in light of social norms, and it should be interpreted to be excluded from the disciplinary action guidelines for the same issue."

Fourth, Article 8(1) of the Ministry of Government Administration and Home Affairs provides that a public official who has received a decoration (including a warning of non-written warning) may suffer disadvantage in the transfer personnel, payment of bonus, commendation, etc. (Article 4), and that the status of disposition shall be recorded and maintained by keeping a disposition ledger, such as a warning, etc. (Article 8(1) of the Ministry of Government Administration and Home Affairs and each local government (Article 8(1) of the same Act). Although the above warning that the defendant's participation was minor at the time, he/she recommended or instructed that he/she will be more faithful to his/her duties so that he/she does not correct any similar mistake in the future, even if not disciplinary action, and it may actually affect or take into account personnel evaluation, such as an illegal promotion or a salary grade. Accordingly, the defendant cannot be deemed to have failed to take any measures against the above 205 person or to have

The crime of neglecting duties is not established in all cases where a public official neglects his/her abstract duty by Acts and subordinate statutes, internal rules, etc., but is established only in cases where there is a specific risk of undermining the function of the State, causing damage to the people, and the degree of illegal and liability is high (see, e.g., Supreme Court Decision 2003Do4331, May 12, 2005). Thus, if a public official performs his/her duties in any form with his/her intent to perform his/her duties, the crime of neglecting duties is not established solely on the ground that the contents of the performance of his/her duties are deemed illegal (see, e.g., Supreme Court Decisions 2003Do3718, Oct. 24, 2003; 2004Do5259, Oct. 28, 2004).

Defendant, a head of the local government, is somewhat excessive in the guidelines of the Ministry of Government Administration and Home Affairs concerning disciplinary action at the time, and the head of the local government, as a head of the local government, concerns over confusion and side effects caused by the demand for disciplinary action against all public officials participating in the strike exceeding half of his/her employees, and further, it is determined that there is room to judge that the participation in the strike does not constitute the same case, and as long as the degree of participation is determined that some of those persons who participated in the strike do not constitute the same case, the request for disciplinary resolution is made to the North-gu Personnel Committee, and the degree of participation is ordered to give a warning to the rest of those who participated in the strike, the above execution of his/her duties cannot be deemed as a violation of the permission of the workplace or a waiver of the awareness of his/her duties, apart from the fact that the above execution of duties by the Defendant is illegal. At least, the Defendant

In contrast, the court below determined that the defendant's above measures are to protect the interests of the public officials participating in the strike, and that it itself, without any justifiable reason, should not be deemed to have renounced or neglected the duty of action imposed by the law. In so doing, the court below erred by misapprehending the legal principles on the crime of occupational abandonment, and the ground of appeal pointing this out has merit.

4. Conclusion

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 Yang Sung-tae (Presiding Justice)