Article 30 of the Foreign Service Act and Article 73-3 (1) 4 of the former State Public Officials Act / The purpose of the removal from position under Article 73-3 (1) 4 of the former State Public Officials Act / Whether the removal from position can be justified solely on the ground that a public official is prosecuted for a criminal case (negative

Article 27(4) of the Constitution of the Republic of Korea; Article 30 of the Foreign Service Officers Act; Article 73-3(1)4 of the former State Public Officials Act (Amended by Act No. 13618, Dec. 24, 2015)

Supreme Court Decision 98Du15412 Decided September 17, 1999 (Gong1999Ha, 2221) Supreme Court Decision 2006Da30730 Decided June 26, 2008 (Gong2008Ha, 1046)

Plaintiff (Law Firm LLC, Attorneys Nam Young-gu et al., Counsel for the plaintiff-appellant)

(2) The Minister of Foreign Affairs and Trade (Attorney Gi-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu39073 decided April 7, 2016

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

The grounds of appeal are examined.

1. Article 27(4) of the Constitution provides that a criminal defendant shall be presumed innocent until a judgment of conviction becomes final and conclusive. Meanwhile, the removal from position system under Article 30 of the Foreign Service Officers Act and Article 73-3(1)4 of the former State Public Officials Act (amended by Act No. 13618, Dec. 24, 2015; hereinafter “State Public Officials Act”) is intended to prevent a criminal defendant from continuing to hold a position and performing his/her duties at the stage before he/she becomes retired ipso facto after obtaining a final and conclusive judgment of conviction. Thus, in light of the principle of presumption of innocence under the Constitution or the purpose of the removal from position system as above, removal from position can not be justified solely on the ground that a criminal case is indicted, and it is highly probable that a party to a judgment of conviction falls under subparagraphs 3 through 6-2 of Article 33 of the State Public Officials Act and Article 73-3(1)4 of the former State Public Officials Act will continue to perform his/her duties.

2. On the grounds indicated in its reasoning, the lower court determined that the instant disposition that the Plaintiff was indicted solely on the ground that there was a high probability that the Plaintiff would be convicted of the facts charged, falling under subparagraphs 3 through 6-2 of Article 3 of the State Public Officials Act, which was the reason for ipso facto dismissal from office (hereinafter “instant disposition”), at the time of the Plaintiff’s continued performance of duties, or that there was a specific risk that would undermine the fairness in the performance of official duties and the public’s trust, and that it was unlawful on the ground that the instant disposition that the Plaintiff was indicted on the ground that it was a criminal case, was a deviation or abuse of discretionary authority.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is acceptable, and it did not err by misapprehending the legal principles on deviation and abuse of discretion in removal from position.

4. 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 Kim Jae-hyung (Presiding Justice)