(영문) 서울행정법원 2011.4.28.선고 2010구합43105 판결

A. The plaintiff is a person appointed as the chairperson of the B Committee (which is a corporation under the jurisdiction of the Ministry of Culture, Sports and Tourism established pursuant to Articles 4 and 5 of the Promotion of the Motion Pictures and Video Products Act) by the defendant of the date C until D, and the defendant is the head of the competent agency of the B Committee.

B. On November 8, 2010, the Defendant, as the chairperson of the Committee, took part in the examination by stating that “the Plaintiff’s act, as the chairperson of the Committee, took part in the examination by phone call from around May 14, 2010 to around May 15, 2010 in the first review of E business (hereinafter “instant business”) to 5 to 7 members of the first review committee, including “F”, while using the language of “internal coordination.” The above act constitutes dismissal of the Plaintiff on the ground that: (a) the officers and employees of B Committee, enacted by delegation under Article 8(3) of the B Committee’s Articles of incorporation; (b) Article 7 of the Act on the Prevention of Corruption and the Establishment and Management of Anti-Corruption and Civil Rights Commission; and (c) Article 382-3 of the Commercial Act, enacted by delegation under Article 35(1) of the Act on the Management of Public Institutions, failed or neglected to perform the duty of prohibition of good offices, solicitation, and solicitation; and (hereinafter “the Plaintiff”).

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The plaintiff explained the policy direction of the B Committee to the examiners and requested their cooperation, but did not select a specific material and make a request for a change.

(ii) the deviation and abuse of discretionary power;

In light of the fact that the term of office is guaranteed to prevent the dismissal of the Plaintiff during his/her term of office, except in cases where the appointment authority is dismissed or there are reasons prescribed by the articles of incorporation, and the Plaintiff faithfully performed his/her duties, such as having achieved the results of overall participation in the organization and management of his/her duties during his/her term of office, the instant disposition was a deviation or abuse of discretion

B. Relevant provisions

The entries in the attached Table shall be as specified in the relevant regulations.

1) On March 18, 2010, the Committee set the direction of the film promotion project as 's creation of a stable investment environment and activation of the additional market, promotion of diversity and public nature of Korean movies, expansion of overseas markets and international exchanges of Korean movies, strengthening of film professionals, improvement of film techniques and strengthening of film policies'. After announcing the project plan of this case, the Committee received and examined the project of this case, and the major contents and progress of the project are as follows.

The name of the business: The receipt period of ○○○ on April 9, 2010 by supporting the creation of creative and experimental video works for the purpose of E business: the number of copies received on April 5, 2010: Part 19, Part 56, Part 49, Part 1, Part 304, Part 304: the first review-examination period on May 12, 2010: the determination of examiners on May 18, 2010: From May 3, 2010 to the 10th of the same month, the chairperson of B Committee recommended by the Plaintiff, who is the chairperson of the review committee, to the 10th of the same month, to the 10th of the same month, to determine the diversification and activation of the domestic environment for production of video products: Part 19, Part 56, Part 56, Part 30, Part 4, Part 2, Part 12, Part 2, Part 2, Part 3, Part 2, etc.

2) The Plaintiff left the Republic of Korea on May 11, 2010, after the first review member became final and conclusive, for the participation of S and T.

3) From May 14, 2010 to the 16th day of the same month, the Plaintiff asked 7 examiners to select ‘F' and ‘V' as a material subject to the second examination, using terms such as ‘internal adjustment', ‘s,' ‘co-operation request' in U as an international telephone from May 14, 2010 to 7 of the same month.

4) On May 18, 2010, the first review examiner sent to the Plaintiff a content-certified mail stating that “the Plaintiff, during the process of the review of the instant project, refers to the words “internal adjustment” and “stamps” and “the Plaintiff forced all of the examiners to select a specific work as a second review object, thereby giving a sense of inhumanity to all of the examiners. To take measures to prevent recurrence in the future and require the Plaintiff’s official apology.”

5) On May 20, 2010, G, I, K, L, andO among the examiners of the first review conducted a press conference with the same content as the above content-certified mail, and theW press, X press, Y press, and Z press reported the above contents of the press.

6) On May 24, 2010, 13 film-related organizations, including AAA Cooperatives, AB Associations, and AC Association, announced a statement of intent to urge the Plaintiff to resign, and reported the Plaintiff to the Anti-Corruption and Civil Rights Commission on the 28th of the same month as abuse of authority and occupational breach of trust. On August 9, 2010, the Anti-Corruption and Civil Rights Commission notified the Defendant of the violation of the public official’s code of conduct, stating that “The Plaintiff violated the provisions of Article 22 of the Code of Conduct for Officers and Employees of the Committee (Prohibition of Brokerage, Referral, etc.).”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 5 (including provisional number), Eul evidence Nos. 3 through 6, and 8, the purport of the whole pleadings

D. Determination

1) As to the non-existence of the grounds for disposition, the Plaintiff asked the members of the B Committee to request the selection of ‘F' and ‘V' as the secondary subject work by calling to 7 members of the B Committee from May 14, 2010 to May 16, 2010, when the first examination was in progress as the chairperson of the B Committee, and using the terms such as ‘internal adjustment ratio', ‘Ss', and ‘request for cooperation', which were provided to the Cator sector, to the effect that the members of the B Committee may be selected as the subject work of the second examination (hereinafter referred to as ‘the instant misconduct') is merely a participation in the examination by soliciting the selection of a specific work to change, and it is to simply explain the direction of policy of the B Committee and seek cooperation thereon.

It can not be seen as being the case.

Therefore, the Plaintiff committed the instant misconduct, and thus, violated the duty of fair and sincere performance of duties and maintenance of dignity as stipulated in Article 8(3) of the B Committee’s articles of incorporation, ② the duty of public officials as stipulated in Article 7 of the Act on the Prevention of Corruption and the Establishment and Management of Anti-Corruption and Civil Rights Commission, ② the duty of prohibiting good faith, solicitation, etc. as stipulated in Article 22(1) of the Code of Conduct, ③ the duty of loyalty as stipulated in Article 382-3 of the Commercial Act applied mutatis mutandis pursuant to Article 35(1) of the Act on the Management of Public Institutions. This constitutes grounds for dismissal as stipulated in Article 35(3) of the Act on the Management of Public Institutions.

2) As to the assertion of deviation and abuse of discretionary power

Whether a punitive administrative disposition deviates from or abused the scope of discretion by social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to such disposition, by objectively examining the content of the offense, which is the reason for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see Supreme Court Decision 2007Du6946, Sept. 20, 2007).

On the other hand, the Plaintiff’s instant misconduct is a serious misconduct that seriously damages the fairness and objectivity of the E business review, the status and external image of the B Committee, and the necessity of public interest to prevent interference with the review of the support project after the instant disposition seems to be unnecessary. The Plaintiff’s term of office system of the B Committee, which is a public institution, is to promote self-management and responsible management, and it does not purport to guarantee its term of office even when it harms the fairness and objectivity of the E business review, which is the main business. In light of the above, even if the Plaintiff has contributed to the improvement of business performance by promoting the advancement of its operation in various sectors, such as reorganization, adjustment of the number of non-regular workers, improvement of treatment for non-regular workers, and development of policies, the instant disposition is not considered to have been abused or abused within the scope of discretionary authority.

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.