(영문) 서울행정법원 2009.11.5. 선고 2009구합18462 판결

A. The Plaintiff is a state public official who was appointed as a local administrative assistant on September 14, 1981 and served in the Ministry of Public Administration and Security B from May 16, 2008.

B. On September 5, 2008, the defendant requested the Central Disciplinary Committee to make a heavy disciplinary decision against the plaintiff on the ground that the plaintiff committed the following acts (hereinafter referred to as the "Disciplinary Reason") and violated Articles 56 (Duty of Good Faith), 58 (Prohibition of Deserting from Office), and 63 (Duty to Maintain Dignity) of the State Public Officials Act. On November 19, 2008, the defendant issued a removal from position against the plaintiff (hereinafter referred to as the "Disposition in this case").

○ Illegal act was committed by preparing false documents and transferring another person’s land under his/her name to the Act on Special Measures for the Transfer of Real Estate Ownership (hereinafter referred to as “Special Measures for Real Estate”).

○ Human relatives damaged the dignity of a state public official due to the bad conduct of moving the land donated to a clan in his name.

The public officials in charge of intellectual information abuse their authority such as demanding assistance in the transfer of ownership of real estate under the Act on Special Measures for Real Estate, performing private duties while working for the transfer of ownership of real estate under the Act on Special Measures for Real Estate and the duties related to clans, and destroying the dignity of public officials.

C. On February 10, 2009, the Central Disciplinary Committee (the Disciplinary Committee) suspended a decision on disciplinary action on the grounds that it is reasonable to make a clear factual basis and make a decision on disciplinary action on the grounds that it is not desirable to resolve the above disciplinary action only because the above disciplinary action is deemed to be a substantial fact.

D. On July 29, 2009, the Seoul Western District Prosecutors' Office issued a disposition to the Plaintiff on suspicion (the fact that the Plaintiff violated the Act on Special Measures for the Registration, etc. of Ownership of Real Estate, including false entry in the authentic copy of the authentic deed and the exercise of the original authentic document, abuse of authority and obstruction of use of the authentic deed, violation of the Resident Registration Act, forgery of the authentic document, and use of the falsified document). On August 14, 2009, the Defendant ordered the Plaintiff to restore the document to the original state.

[Reasons for Recognition: Facts without dispute, entries in Gap 1, 3, 8, 9, and the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the plaintiff was prosecuted on the ground that he prepared a false guarantee under the Act on Special Measures for Real Estate, it was only an act committed by a public official in charge of the plaintiff, who is not a law, through a resolution of the president of a clan, and there was no investigation agency's suspicion as to most suspected facts of accusation against an investigation agency among the disciplinary reasons of this case except this part. It was true that the plaintiff was only a part of a clan-related document while on duty, and a part of his job was not a reason for demanding heavy disciplinary action against the plaintiff.

Nevertheless, the defendant requested the Central Disciplinary Committee to make a heavy disciplinary decision, and the disposition of this case was completed on the ground that it is a person who is in need of a heavy disciplinary measure, even though the defendant did not properly investigate whether there is a reason for requesting a heavy disciplinary measure against the plaintiff, which is unlawful as an exercise of the right of personnel who deviates from the limit of discretion.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(1) Around 2008, the Plaintiff’s private village D transferred the land to the Defendant by using a false guarantee that “the Plaintiff was aware of his/her official status and transferred the land under his/her name,” and the relevant persons raised an objection in the process, etc., the Plaintiff committed an unlawful act, such as finding his/her personal information through the relevant public officials, and his/her relative C transferred the land donated to a clan to his/her own joint name, and he/she was given a donation of the land under the condition that he/she would bring his/her death after his/her death.”

(2) Accordingly, the Defendant investigated the authenticity of the instant disciplinary cause by investigating the petitioner D, E’s wife F, C’s G and F’s fraud, I who is a public official, and attorneys J, etc. who had previously sought advice as a matter of the Act on Special Measures for Real Estate before the Plaintiff. At the time, they made a statement that conforms to the said petition.

(3) As a result of the investigation into relevant public officials I, it was confirmed that, upon the request of the Plaintiff, the Plaintiff issued a false confirmation document, and that the applicant knew the personal information of the claimant, etc., and that the registration of ownership transfer was made in the Plaintiff’s name by using the aforementioned false confirmation document on the size of 704 square meters before K, Yeong-gun, a non-registered land owned by another person.

(4) Upon the commencement of an investigation into the Plaintiff, the Plaintiff deleted all the data stored in the computer used by the Defendant’s office. As a result, the Defendant’s removal of the data reveals that the documents prepared by the Plaintiff at the office for a clan business related to the registration of ownership transfer under the Act on Special Measures for Real Estate had reached the 1,097 pages A4. According to the relevant work log prepared by the Plaintiff, it was confirmed that the Plaintiff left the place of work without permission several times to interview private lawyers and relevant public officials as their duties.

(5) On February 6, 2009, the defendant requested the Seoul Western District Public Prosecutor's Office to investigate the plaintiff. On July 29, 2009, the Western District Public Prosecutor's Office issued a disposition against the plaintiff on the remaining suspicions (the fact that the original of the notarial deed is not recorded or the original of the notarial deed, the fact that the original of the notarial deed is not recorded or not recorded, the fact that the abuse of authority or obstruction of the exercise of rights, the fact that the dispositive violation of the Resident Registration Act, the fact that the dispositive document is forged, and the use of the dispositive document).

(6) On February 1, 2009, G and H made a statement to the effect that “A had the heir of C donate donate land to a clan and registered it in his/her name, etc.” at the time when the first investigation was conducted by the Defendant, that the Plaintiff made a false statement to the effect that C had his/her heir registered it in his/her name in the clan was made, and that L, M, N et al. made a false statement to the same effect on September 10, 2009.

(7) The criminal punishment against the violation of the Act on Special Measures for the Registration, etc. of Real Estate Ownership was not finalized, and the disciplinary decision against the Plaintiff is still suspended.

[Reasons for Recognition: Facts without dispute, Gap 25, 26 evidence, Eul 5, 7, 9, 10, 14, 15, 16, Eul 17-1, Eul 23-3. Eul 24, 26, 27, 29, 34, 35, and the purport of the whole pleadings]

D. Determination

(1) According to the State Public Officials Act, in cases where a public official lacks the ability to perform his/her duties or his/her job performance or attitude is poor, disciplinary proceedings against a public official is pending in a criminal case, etc., the removal of the position as a provisional measure that prevents the public official from performing his/her duties on a temporary basis due to his/her failure to assign his/her position in order to prevent anticipated occupational failure in the event that the public official continues to perform his/her duties in the future, and its nature differs from disciplinary sanctions conducted for the purpose of maintaining order in the past of the public official. Thus, the legitimacy of the removal from position is determined by whether there exists a reason for the removal from position in question or whether the violation of the procedural provisions for the removal from position would be invalid (see, e.g., Supreme Court Decisions 2003Du5945, Oct. 10, 2003; 2003Du8210, Nov. 1, 2005).

(2) In the instant case, the facts requiring the resolution of heavy disciplinary action against the Plaintiff on September 5, 2008 are as seen earlier, and therefore, there were grounds for removal from position under Article 73-3 (1) 3 of the State Public Officials Act to the Plaintiff. Furthermore, considering the above facts recognized and the following circumstances acknowledged therefrom, it is difficult to deem that the removal from position in the instant case is unlawful or unfair merely because the investigative agency issued a disposition that was not suspected of being suspected of being unconstitutional due to lack of evidence against most of the suspicions for which criminal complaint was filed in the instant disciplinary action after the removal from position.

① Before the request for a disciplinary decision in the instant case, the Defendant summoned the relevant persons, listen to their statements, and performed the procedure for verifying the existence of the instant disciplinary cause, which is alleged by the petitioner, such as recovering the deleted Plaintiff’s computer data, to the extent possible. Although the relevant persons subsequently reversed their initial statements by falsity, at least the relevant persons at the time of the instant disposition, made a statement to the effect that they conform to the substance of the instant petition, and thus, at the time of the instant disposition, it appears that there was considerable reason to believe that the instant disciplinary cause existed to the Plaintiff.

② Since the contents of the irregularities at issue against the Plaintiff are serious and there was a dispute over the denial and dismissal of them, it is necessary for the Defendant to take a provisional measure to prevent the Plaintiff from engaging in his duties in order to prevent the anticipated occupational failure when the Plaintiff continues to perform his duties in the future.

③ According to Article 1-2 subparag. 1 of the Decree on Disciplinary Measures against Public Officials, heavy disciplinary measures include removal, dismissal, demotion, suspension from office, etc., and according to the attached Table 1 of Article 2(1) of the former Enforcement Rule of the Decree on Disciplinary Measures against Public Officials (amended by Ordinance of the Ministry of Public Administration and Security No. 73 of March 30, 2009), where the Plaintiff intentionally commits a violation of the duty of good faith, prohibition of removal from office, or duty of maintaining dignity, he/she shall be subject to heavy disciplinary measures of suspension from office or more without serious seriousness. In this case, the Plaintiff himself/herself recognizes the fact that the Plaintiff was indicted for a violation of the Act on Special Measures for the Registration, etc. of Real Estate Ownership, on the Registration of Real Estate Ownership, on the fact that the Plaintiff was falsely prepared a certificate of guarantee prescribed by the Ordinance on Special Measures for the Registration of Real Estate Ownership, and this constitutes a violation of the duty to maintain dignity through intentional misconduct, which alone constitutes a violation of the obligation to maintain dignity.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.