[1] The meaning of "collective action for activities other than public service" prohibited under Article 58 (1) of the Local Public Officials Act

[2] The meaning of "act which does not violate social norms" under Article 20 of the Criminal Code and the criteria for its determination

[3] The case holding that an act of absence from office without permission by a public official belonging to the Korean Public Officials' Union following the resolution of an illegal strike constitutes "collective act for work other than public duties" prohibited under Article 58 (1) of the Local Public Officials Act, and it cannot be viewed as a lawful act not contrary to the social norms

[4] The limits and criteria for the discretion of disciplinary action against public officials

[1] Article 58 (1) of the Local Public Officials Act / [2] Article 20 of the Criminal Act / [3] Article 58 (1) of the Local Public Officials Act, Article 20 of the Criminal Act / [4] Articles 78 and 79 of the State Public Officials Act

[1] Supreme Court Decision 2004Do5035 Decided October 15, 2004 (Gong2004Ha, 1904) Supreme Court Decision 2005Do6923 Decided August 24, 2006 / [2] Supreme Court Decision 2002Do5077 Decided December 26, 2002 (Gong2003Do3000 Decided September 26, 2003 (Gong2003Ha, 2132), Supreme Court Decision 2005Do383 Decided September 9, 2005 / [4] Supreme Court Decision 98Du6951 Decided November 26, 2006

Plaintiff 1 and one other

[Defendant-Appellant] Plaintiff 3 (Law Firm Dup and four others, Counsel for defendant-appellant)

The head of Mapo-gu Seoul Metropolitan Government

Seoul High Court Decision 2006Nu5030 decided Oct. 13, 2006

All appeals are dismissed. The costs of appeal are assessed against each party.

1. Judgment on Plaintiff 3’s grounds of appeal

A. As to the existence of grounds for disciplinary action

Article 58(1) of the Local Public Officials Act does not mean any collective act conducted by public officials for any work other than public duties, but rather means a collective act that may be acceptable in light of the overall spirit of legal order or social ethics or social norms surrounding it, and the legislative intent of the Local Public Officials Act, comprehensively taking into account the duty of good faith and duty of care under the Local Public Officials Act, etc. (see, e.g., Supreme Court Decisions 2004Do5035, Oct. 15, 2004; 2005Do6923, Aug. 24, 2006). Meanwhile, “an act that does not violate social rules” under Article 20 of the Criminal Act refers to an act that may be committed in light of social ethics or social norms, and the legislative intent of the Local Public Officials Act, and an act that may affect the exercise of the duty of care for the purpose of public interest” (see, e.g., Supreme Court Decisions 200Do500, Oct. 24, 2006).

In light of the above legal principles and records, even if the resolution of the general strike of the so-called National Public Officials' Union (hereinafter "major union") was made with the purpose of pointing out the problems of the "Act on the Union and Operation of Public Officials' Unions" which was pre-announcement by the Minister of Government Administration and Home Affairs on August 25, 2004, the court below is a large number of acts detrimental to the nature of public duties, such as concurrent and multiple classes of strikes by public officials throughout the country as a means to achieve these goals, which interfere with the discipline of the duties of public officials or are in violation of this part, and thereby causing severe administrative gap and inconvenience to the public, and the act without permission of public officials belonging to the major union in accordance with the resolution of the general strike of the major union, which is prohibited by Article 58 (1) of the Local Public Officials Act, and the same applies even if the plaintiff 3 did not actually participate in the demonstration, nature, or assembly, etc., and therefore, it is justified in the judgment of the court below that there is no violation of law by the plaintiff's legitimate grounds for appeal.

B. As to whether there is a defect in disciplinary procedure

The court below held that the disciplinary action of this case cannot be deemed unlawful on the ground that the defendant submitted a written confirmation of absence from office without permission from the superior officer of the plaintiff 3 with relevant data under each subparagraph of Article 2 (6) of the Local Public Officials Discipline and Appeal Regulations, and the above plaintiff, who is a person to be disciplined, was not found to have a defect in the defendant's disciplinary request procedure merely because he did not confirm specific facts, and the defendant's request for disciplinary resolution at the second personnel committee of Seoul Special Metropolitan City, which is the prior stage for the disciplinary resolution, was sufficiently given the above plaintiff the opportunity to vindicate at the above plaintiff in the disciplinary procedure held in the Seoul Special Metropolitan City.

In light of relevant Acts and subordinate statutes and records, the judgment of the court below is just and there is no error in the misapprehension of legal principles as to disciplinary proceedings as otherwise alleged in the ground of appeal.

C. As to the deviation and abuse of discretionary authority

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, it shall be at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure has considerably lost validity under the social norms, it shall be illegal. If a disciplinary measure against a public official has considerably lost validity under the social norms, it shall be deemed that the contents of the disciplinary measure can be objectively and clearly deemed unreasonable in light of various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, the criteria for the determination of the disciplinary measure, etc., depending on the specific cases. Even if the person having the authority to take the disciplinary measure is left at the discretion of the person having the authority to take the disciplinary measure, it shall be against the public interest principles that should exercise the authority to take the disciplinary measure for the public interest, or if the person having the authority to take the disciplinary action goes against the principle of proportionality or the standards of fair application of the same degree without reasonable grounds, it shall be deemed that the disciplinary measure violates the principle of equality.

In light of the above legal principles and records, the court below's decision that the disciplinary action against the above plaintiff cannot be deemed as a deviation or abuse of discretionary power because it is too harsh to the extent that the disciplinary action against the above plaintiff considerably lose validity under the social norms is just and acceptable, and there is no error in the misapprehension of legal principles as to a disciplinary action, as otherwise alleged in the ground of appeal.

2. Judgment on the Defendant’s grounds of appeal

In light of the aforementioned legal principles and records as to deviation from and abuse of discretionary power of the disciplinary action, even if the plaintiffs 1 and 2 were to be subject to criminal punishment regarding the act of absence from absence without permission in this case, in light of the various circumstances determined by the court below, the judgment of the court below that the disciplinary action against the above plaintiffs was unlawful since it deviates from or abused the discretionary power, is justified. There is no error of law such as misconception of facts due to violation of the rules of evidence or misunderstanding of legal principles as to deviation and abuse of discretionary power due to the violation of the rules of evidence that affected the conclusion of the judgment, and even if

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)