Whether the provisions of the Administrative Procedures Act concerning prior notice and hearing of opinions, etc. are applied to removal from a position under the State Public Officials Act (negative)

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); or Article 2 subparag. 3 of the former Enforcement Decree of the Administrative Procedures Act (Amended by Presidential Decree No. 23383, Dec. 21, 201); thus, the removal from position under the State Public Officials Act constitutes a matter that is deemed difficult or unnecessary to undergo administrative procedures due to the nature of the relevant administrative action

Articles 73-3(1), 75, and 76(1) of the State Public Officials Act; Articles 3(2)9, 21(1), and 22(3) 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)

Plaintiff (Law Firm Young-soo, Attorneys Kim-type et al., Counsel for the plaintiff-appellant)

The Minister of Employment and Labor (Law Firm Jeong, Attorneys Regular-type et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu45612 decided October 18, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Even if the status of the public official cannot be recovered due to nullification or cancellation of the removal from the position exceeding the retirement age during the course of a lawsuit seeking nullification or cancellation of the removal from the position under the State Public Officials Act, there is a legal interest in seeking nullification or cancellation of the removal from the position (see, e.g., Supreme Court Decisions 2007Du18406, Jul. 29, 2010; 201Du5001, Feb. 23, 2012).

In the same purport, the court below is just in deciding on the merits on the premise that the plaintiff, whose retirement age has expired during the fact-finding trial, has a legal interest in seeking revocation of the removal from position of this case, and there is no error of law by misunderstanding

2. As to the grounds of appeal Nos. 2 through 4

A. Based on the evidence adopted, the lower court: (a) based on the fact that the Plaintiff was a public official of Grade V promotion from the Ministry of Employment and Labor on March 9, 2006; (b) the Ministry of Employment and Labor established a plan to enhance the capacity of an interim manager around June 2010; and (c) conducted an evaluation of the evaluation group consisting of at least 37 public officials of Grade VI and lower than 4 years since it was promoted to Grade V; and (d) selected 20 persons, including the Plaintiff, by holding a selection committee in order to enhance the capacity of the Ministry of Employment and Labor; (e) the Seoul Regional Employment and Labor’s implementation of a plan to improve the capacity of the Plaintiff from around 3 months to around 2010, including the process of providing education and field support for the Plaintiff, etc.; and (e) the Ministry of Employment and Labor, based on the result, did not have an opportunity to present opinions regarding the Plaintiff’s removal from position, which is clearly unfavorable to the Plaintiff on the ground that it did not have an opportunity to present the Plaintiff’s position.

B. However, the lower court’s determination is difficult to accept for the following reasons.

Article 3(2) of the former Administrative Procedures Act (amended by Act No. 11498, Oct. 22, 2012; hereinafter the same) provides that “this Act shall not apply to matters falling under any of the following subparagraphs.” Article 3(2) 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 and call under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action under the Acts and subordinate statutes on personnel affairs of public officials, and other procedures similar to administrative procedures, prescribed by Presidential Decree, 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. 2383, Dec. 21, 2011) provides that “the matters prescribed by Presidential Decree” referred to in Article 3(2)9 of the Act refers to the following matters concerning disciplinary action under Article 3(2)9 of the Act:

Meanwhile, the removal from position provided for in Article 73-3(1) of the State Public Officials Act (hereinafter “Act”) is a temporary and provisional measure that prevents a public official from performing his/her duties due to his/her capacity to perform his/her duties in the future if the public official lacks his/her duties or is extremely poor in work performance. In cases where the public official is prosecuted for a criminal case, it is a temporary and temporary measure that prevents the public official from performing his/her duties due to his/her absence of his/her capacity to perform duties in the future. Therefore, it is difficult for the person who has the authority to appoint an appeal to ensure that the public official from his/her position in the past from performing his/her duties in accordance with the provision of Article 73-3(1) of the Act, including disciplinary measures, to ensure that the public official from his/her capacity to perform his/her duties can be guaranteed by the person who has the authority to appoint his/her duties in accordance with the provision of Article 203Du5945, Oct. 10, 2003;

Thus, it is reasonable to view that the provisions of the Administrative Procedures Act concerning prior notice of disposition and hearing of opinion, etc. are not separately applied since the removal from office under Article 3(2)9 of the former Administrative Procedures Act and Article 2 subparag. 3 of the Enforcement Decree of the same Act constitutes a matter deemed difficult or unnecessary to undergo administrative procedures due to the nature of the relevant administrative action or a matter that underwent procedures equivalent to administrative procedures

Nevertheless, the court below determined that the disposition of this case should undergo prior notice and hearing procedures pursuant to the Administrative Procedures Act in order to take the disposition of this case, and accepted the plaintiff's claim of this case. Thus, the court below erred by misapprehending the legal principles on the scope of exclusion from the application of the Administrative Procedures Act and the grounds for exception, which affected the conclusion of the judgment.

3. Conclusion

The lower judgment is reversed without further proceeding to decide on the remaining grounds of appeal, 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 Lee Sang-hoon (Presiding Justice)