[1] Whether a disposition is legitimate in a case where an administrative agency did not give prior notice or give the party an opportunity to present opinions under the former Administrative Procedures Act while taking an infringing administrative disposition (negative in principle)

[2] The scope of excluding the application of the Administrative Procedures Act to the matters related to the public official's personnel management law, and whether the legal principle also applies to the ex officio dismissal of the public official in extraordinary civil service (affirmative)

[1] According to Articles 21(1), 21(4), and 22 of the former Administrative Procedures Act (amended by Act No. 11498, Oct. 22, 2012), where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the party concerned of the facts and legal grounds for the disposition, the purport that the party may submit his/her opinion, and the method of dealing with the disposition when failing to present his/her opinion. In cases where other Acts and subordinate statutes stipulate that the hearing shall be conducted naturally or the public hearing shall be held, the party concerned shall be given an opportunity to present his/her opinion, but “where it is deemed that there is a considerable reason to believe that the hearing of opinion is difficult or clearly unnecessary due to the nature of the disposition in question,” the administrative agency shall not give any prior notice or hearing of opinion. Accordingly, if the administrative agency did not give the party an opportunity to present his/her opinion, such disposition may be exempted from its revocation, unless it falls under exceptional cases where prior notice is not given or given an opportunity to present.

[2] In light of the legislative purpose of the Administrative Procedures Act for the purpose of securing fairness, transparency, and reliability in administration and protecting the rights and interests of the people, the application of the Administrative Procedures Act is not excluded in entirety, but rather subject to a disposition that is deemed difficult or unnecessary due to its nature, or a procedure equivalent to administrative procedure. This legal principle applies likewise to ex officio dismissal of a public official in extraordinary civil service corresponding to “disposition under the Acts and subordinate statutes related to personnel affairs of public officials” under Article 3(2)9 of the former Administrative Procedures Act and Article 2 subparag. 3 of the Enforcement Decree of the Administrative Procedures Act (amended by Presidential Decree No. 23383, Dec. 21, 2011).

[1] Articles 21(1) and (4), and 22 of the former Administrative Procedures Act (Amended by Act No. 11498, Oct. 22, 2012) / [2] Article 3(2)9 of the former Administrative Procedures Act (Amended by Act No. 11498, Oct. 22, 2012); Article 2 subparag. 3 of the former Enforcement Decree of the Administrative Procedures Act (Amended by Presidential Decree No. 23383, Dec. 21, 201)

[1] [2] Supreme Court Decision 2006Du20631 Decided September 21, 2007 (Gong2007Ha, 1682) / [1] Supreme Court Decision 99Du5870 Decided November 14, 200 (Gong2001Sang, 56) Supreme Court Decision 2004Du1254 Decided May 28, 2004 (Gong2004Ha, 1088)

Plaintiff (Law Firm Subdivision, Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)

The Minister of Public Administration and Security (Law Firm Corporation, Attorneys Park Sim-si et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu35021 decided November 2, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to Articles 21(1) and (4), and 22 of the former Administrative Procedures Act (amended by Act No. 11498, Oct. 22, 2012; hereinafter the same), where an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, it shall notify the parties, etc. of the facts and details of the dispositions to be imposed, the legal basis thereof, the methods of disposal when failing to present their opinions, etc.; and shall provide the parties, etc. with an opportunity to present their opinions, even in cases where other Acts and subordinate statutes stipulate that hearing shall be inevitably conducted or a public hearing shall be held; however, “where it is deemed difficult to hear their opinions or clearly unnecessary due to the nature of the dispositions in question,” the administrative agency shall not give prior notice or hear their opinions. Accordingly, if the administrative agency did not give the parties an opportunity to present their opinions or give them an opportunity to present their opinions, the administrative agency may not be exempt from the revocation of such dispositions by failing to give prior notice or offering them an opportunity to present their opinions.

Article 3(2) of the former Administrative Procedures Act provides that “this Act shall not apply to matters falling under any of the following subparagraphs.” Article 3(2)9 of the same Act provides that “The matters deemed difficult or unnecessary to undergo administrative procedures due to the nature of the relevant administrative action, such as conscription, call-up under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action under the Acts and subordinate statutes concerning public officials’ personnel affairs, and other dispositions under the Acts and subordinate statutes, and those prescribed by the Presidential Decree, which have gone through procedures equivalent to administrative procedures, are excluded from the application of the Administrative Procedures Act.” Article 2 of the former Enforcement Decree of the Administrative Procedures Act (amended by Presidential Decree No. 23383, Dec. 21, 2011) provides that “Where it is difficult or unnecessary to obtain administrative procedures due to the nature of the relevant administrative action such as disciplinary action under the Acts and subordinate statutes concerning public officials’ personnel affairs or adjustment of interests, it shall be deemed that it is difficult or unnecessary to obtain the application of the Administrative Procedures Act and subordinate statutes, 20.”

2. (1) The lower court: (a) ex officio dismissal of the Plaintiff appointed as the head of the Presidential Archives under the Presidential Records Management Act as a public official in extraordinary civil service for a five-year term; (b) a disposition imposing an obligation on the Plaintiff or restricting the rights and interests of the Plaintiff is imposed; and (c) Article 22(1) of the former Disciplinary Decree (amended by Presidential Decree No. 22199, Jun. 15, 2010; hereinafter the same) provides that “Any disciplinary cause provided for in each subparagraph of Article 78(1) of the State Public Officials Act may be dismissed ex officio or taken a disciplinary action pursuant to this Decree against the public official in extraordinary civil service; (d) unlike the disciplinary action against the public official in extraordinary civil service, the provision of the former Disciplinary Decree on Disciplinary Procedure does not apply; and (e) a disposition of this case does not constitute an exceptional measure deemed difficult or unnecessary due to its nature; and (e) a disposition of this case did not provide the Plaintiff with an opportunity to submit opinions on the unlawful act of disclosure of the Plaintiff’s evidence 2).

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is based on the legal doctrine as seen earlier. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the scope of exclusion and

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)