(영문) 서울행정법원 2013.2.19. 선고 2012구합8885 판결

1. The Defendant’s ex officio dismissal of the Plaintiff on August 4, 2011 shall be revoked. 2. The litigation cost is assessed against the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. From July 2, 1979, the Plaintiff served as an allowance position equivalent to Grade 7 with the Ministry of Employment and Labor, and served as an industrial counselor on January 1, 1981, and on August 2, 1989. From March 3, 2006, the Plaintiff was promoted as Seoul Regional Labor Relations Commission B for the same period from March 9, 2006 to February 6, 2008, from the 3rd of the same month to the 1st of the same year to the 1st of the same year, the head of Seoul Regional Labor Management Agency C from the 4th of the same month to the 1st of the same month, from the 1st of the same month to the 1st of the same month to the 2nd of the same month, the head of Seoul Regional Labor Management Agency C from the 2nd of the same month to the 1st of the same month to the 1st of the same month, and the head of Seoul Regional Labor Management Agency C from the 28th of the same month to the 1st of the same month.

D. After that, on March 26, 2011, the Defendant: (a) constituted an evaluation committee on research tasks submitted by the Plaintiff; (b) evaluated the first research tasks (I) to be 'unsatisfy' or 'unsatisfy'; and (c) with respect to the second research tasks (J), 'unsatisfy'. On the 21st of the same month, the Defendant submitted to the Human Resources Development Service of Korea an answer proposal that is not completely related to the issue given by the Plaintiff, and received 0 points (175 marks) from the evaluation committee members. Accordingly, the Defendant dismissed the Plaintiff ex officio based on Article 70(1)5 of the State Public Officials Act, following the resolution of the Central Disciplinary Committee; (d) Nos. 1 through 4; (e) evidence No. 1 to 3; (e) evidence No. 1 to 4; (e) evidence No. 1 to 3; and (e) evidence No. 1 to 4; and (e) evidence No. 2) evidence No. 70-1 to 5.

2. Judgment on the main defense of this case

A. On October 5, 2012, the Plaintiff, who already reached the retirement age, voluntarily retired on December 31 of the same year, which was before the date of closing argument in this case, pursuant to Article 74(4) of the State Public Officials Act, and thus, it is impossible to recover his status as a public official even if the instant disposition is revoked, and thus, the instant lawsuit is unlawful as there is no benefit of lawsuit.

B. Determination

In general, even if recovery is impossible due to the cancellation of an administrative disposition, there is a benefit to seek cancellation of the disposition if there are special circumstances to deem that any other legal interest is infringed due to the existence of the administrative disposition. In this case, even if the plaintiff could not recover the status of the public official due to the cancellation of the disposition of this case, it is reasonable to view that there still still exists a legal interest to seek cancellation of the disposition of this case, such as where the plaintiff can seek payment of remuneration for the period from the date of the disposition of this case to the date falling under the retirement age (see, e.g., Supreme Court Decision 2007Du13487, Jan. 30, 2009). The defendant's above assertion is without merit.

A. The plaintiff's assertion

1) procedural defect

The Defendant did not go through the procedures prescribed by the Administrative Procedures Act, such as notifying the Plaintiff of the grounds for disposition and providing the Plaintiff with an opportunity to vindicate or state his opinion.

2) Non-existence of grounds for disposition

During the period of removal from position of this case, the subjective test conducted by the Defendant to assess the Plaintiff’s ability to perform his duties is conducted arbitrarily without legal basis. Therefore, the instant disposition based on the result of the test is unlawful.

(iii) deviation from and abuse of discretionary power;

The instant disposition did not evaluate the Plaintiff’s ability to perform his duties in accordance with objective standards, but was assessed according to arbitrary and subjective standards as above, and was excessively harsh to the Plaintiff and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On April 23, 2010, the Ministry of Employment and Labor held a workshop to improve the personnel system in 2010 in which 100 public officials of Grade IV or below participated, and at the workshop, an education for strengthening the capacity of managers was proposed.

2) On May 28, 2010, the Defendant, based on the above capacity strengthening plan, prepared a personnel system improvement plan for the 5th chief director who is an interim manager on May 28, 2010. On June 14 of the same year, each local employment and labor office made a multi-level 5 manager a multi-level 5 manager, and selected those subject to the capacity strengthening method, conducted education for strengthening capacity for the 5th class manager, and conducted on-site customer satisfaction support activities for the 1 month and within 2 months, and the Ministry of Employment and Labor formulated a plan for strengthening capacity for the 5th class manager of the agency under its jurisdiction (hereinafter referred to as the “instant capacity strengthening plan”).

3) If the Defendant conducted a multi-level public official for whom four years have not passed since promotion from among Grade V public officials, a multi-level public official for whom four years have not passed since promotion to Grade V could distort the results. Accordingly, the head of the Seoul Regional Employment and Labor Office conducted a multi-level evaluation on 37 public officials for whom four years have passed after promotion to Grade V public officials from Grade V and Grade V. Accordingly, the head of the Seoul Regional Employment and Labor Office conducted a multi-level evaluation on 20 June 17, 2010 if the evaluation was conducted on 37 public officials from among Grade V public officials from Grade V and Grade V public officials from Grade V in the same month (if it is impossible for an appraiser to be excluded from the evaluation because at all it is impossible for him/her to do so, the order of evaluation subjects was set by adding the evaluation points to 50:50; hereinafter referred to as “multi-level evaluation”). If the Plaintiff’s comprehensive evaluation results in the instant case were the 37th of Grade III.

4) On June 24, 2010, the Seoul Regional Employment and Labor Agency held a committee for the selection of those subject to the competence strengthening, and thereafter selected eight persons including the Plaintiff as those subject to the competence strengthening and recommended them to the Ministry of Employment and Labor.

5) On July 6, 2010, the Ministry of Employment and Labor held a selection committee for persons subject to capacity strengthening and subsequently selected 20 persons among the 23 public officials of Grade 5 recommended by the 6 local employment unions, etc. from among the 23 public officials of Grade 5 who are subject to capacity strengthening based on the comprehensive report, audit room opinion, capacity evaluation data, etc. of the head of each local employment office (the 7 members of the Seoul local employment union, the 7 members of the Busan local employment union, the 2 members of the Busan local employment and labor office, the 2 members of the Daegu local employment and labor office, the 5 members of the Central Local employment and labor office, the 5 members of the Daejeon regional employment and labor office, the 2 members of the Daejeon local employment

6) After that, the Seoul Regional Employment and Labor Agency conducted from July 12, 2010 to August 6, 2010, consisting of 84 hours for collective education, 3 hours for joint examination, 3 hours for joint examination, 39 hours for cyber education, 2 out of recommended books. On-site support activities conducted from the 9th of the same month to October of the same year were selected for individual review tasks, and conducted on-site monitoring of the tasks, and submitted a report.

7) On October 1, 2010, Seoul Regional Employment and Labor Agency held an on-site interim inspection meeting of the on-site support group and assessed the presentation history, logic, etc. of the interim report by four persons except the head of the management division on the interim report of the person subject to the capacity strengthening. The order of the Plaintiff was three of the persons subject to the capacity strengthening of Grade 5.

8) Meanwhile, on October 2010, the Ministry of Employment and Labor requested an external expert to evaluate the research report by 18 persons subject to the 5th degree strengthening capabilities in the early police officer, and notified the result to the 6th of the 15th of the next month Regional Employment and Labor Office and the National Labor Relations Commission. The 11th of the 18 research report submitted by the Plaintiff.

9) The head of the Seoul Regional Employment and Labor Agency decided the overall opinions and rankings of those subject to the capacity strengthening by referring to the above internal evaluation and external evaluation. The Plaintiff was determined at fourth among Grade 5 public officials, and the summary of the evaluation results for the Plaintiff prepared by the head of the Seoul Regional Employment and Labor Agency is as follows.

A person shall be appointed.

10) On October 27, 2010, the Ministry of Employment and Labor held an evaluation committee on the results of on-site support activities for public officials of Grade 4-5 of the Ministry of Employment and Labor and the Secretary General of the National Labor Relations Commission, and reflected five members in the evaluation committee meetings, evaluation results, summary of each report, customer satisfaction site support group, comprehensive report on customer satisfaction site support group, individual education-related data, etc. on the basis of the subjects' results of education (5 points), on-site support activities (5 points), changes in efficacy (5 points), etc. on an individual basis, if the sum of points assigned to each item exceeds 12 points, 12 points, 9 points, 4 points, etc. on the basis that it is difficult for them to perform their duties, and then, the Minister of Employment and Labor recognized them as those subject to on-site support by the Administrator of the National Labor Agency to be subject to evaluation and evaluation of the subjects subject to evaluation by considering the changes in the number of local employment-related curricula individually.

11) On November 5, 2010, the Defendant notified the head of each local labor office, etc. of the result of the evaluation committee, such as field support activities for persons subject to the above 4-5 capacity strengthening, and notified the Plaintiff and other persons subject to the postponement of assignment from the 11th of the same month to the 10th of December of the same year of the period of on-site support activities.

12) Around December 31, 2010, the Defendant determined the Plaintiff as a person subject to removal from position, considering the following results: (a) the assignment of a position is postponed for a person subject to a person subject to the evaluation of his/her competence, including the Plaintiff, and whether he/she was released from position, further examination as to whether he/she was released from position; (b) the evaluation results of work performance evaluation, rating, disciplinary action and decoration data; and (c) the trends identified in the auditor’s office; and (d) it

13) Meanwhile, the Defendant notified the Plaintiff of the grounds for the disposition before the instant dismissal from position and the instant disposition, and did not provide the Plaintiff with an opportunity to vindicate or state opinion.

14) On January 10, 201, the Plaintiff filed a petition review with the appeals review committee seeking revocation of the removal from position. However, the appeals review committee dismissed the Plaintiff’s claim on April 8, 201 of the same year. The Plaintiff filed a lawsuit against the Defendant for revocation of the removal from position under the Seoul Administrative Court 201Guhap16247, but the same court dismissed the Plaintiff’s claim on November 30, 201. The Plaintiff appealed with Seoul High Court 2011Du45612, and the same court rendered a judgment to the effect that the removal from position was revoked on the ground that “the removal from position was unlawful without going through prior notice and hearing procedures prescribed in the Administrative Procedures Act.”

[Reasons for Recognition] A without dispute, Gap evidence 4, Eul evidence 9, Eul evidence 3, Eul evidence 14, Eul evidence 15-1 through 5, Eul evidence 16, Eul evidence 17-1, 2, Eul evidence 18-21, Eul evidence 22-1, 2, Eul evidence 23, Eul evidence 24-1, 2, Eul evidence 25-27, Eul evidence 28-1 through 28, Eul evidence 29-32, Eul evidence 3-1 through 5, Eul evidence 34-38, and Eul's whole purport of oral argument.

1) According to Articles 21(1), 21(4), and 22 of the former Administrative Procedures Act (amended by Act No. 11498, Oct. 22, 201; hereinafter the same), where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the parties, etc. of the facts and legal grounds for the imposition of the obligation, the methods of handling the opinion, etc. in advance, and, where an administrative agency does not present any opinion, it shall give the parties, etc. an opportunity to present their opinions, even if other Acts and subordinate statutes stipulate that the hearing is inevitable, or if a public hearing is not required under other Acts and subordinate statutes, it shall not be required to give prior notice of or hear opinions regarding the relevant administrative procedures. Thus, if an administrative agency did not give such prior notice or give the parties an opportunity to present their opinions, it shall not be exempt from the application of the former Administrative Procedures Act’s penal procedures to ensure transparency in the opinion of the public. 204.

Only a disposition that is deemed difficult or unnecessary to complete an administrative procedure, or that is subject to a procedure equivalent to an administrative procedure, shall be deemed excluded from the application of the Administrative Procedures Act (see, e.g., Supreme Court Decision 2006Du20631, Sept. 21, 2007). Such a legal principle likewise applies to ex officio dismissal of a public official falling under “disposition under a public official’s personnel management law” (see, e.g., Supreme Court Decision 2011Du30687, Jan. 16, 2013).

2) Based on the above legal principles, this case’s health class, ① the deprivation of status as a public official on the basis of Article 70(1)5 of the State Public Officials Act, which limits the Plaintiff’s rights and interests. ② Article 70(1)5 of the State Public Officials Act provides that “When it is deemed difficult for a person who has received a standby order to expect the improvement of his ability or work performance during that period, the dismissal can ex officio be made.” Here, it means cases where the ability or work performance can be expected to be improved considerably or extremely poor in light of the provisions of each subparagraph of Article 78(1) of the State Public Officials Act regarding disciplinary reasons for the public official’s disciplinary action, etc. In order to determine whether it constitutes such a case, it is highly necessary to determine whether it constitutes the above ground after notifying the public official who is subject to the disposition and giving him an opportunity to present his opinion, which reflects the result, (3) It is difficult to apply the provision on disciplinary procedures prescribed by the Ordinance on Disciplinary Action, which is equivalent to ex officio dismissal under the State Public Officials Act.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.