[1] Whether the order of transfer under Article 29-3 of the Local Public Officials Act requires the consent of the pertinent public official (affirmative), and whether the same provision is unconstitutional or invalid (negative)

[2] The case holding that since the order of transfer under Article 29-3 of the Local Public Officials Act without the consent of the pertinent public official is unlawful and revoked, disciplinary action based on the premise that the order of transfer is legitimate is unlawful, it is unlawful since it exceeds the discretion in disciplinary action

[1] Article 29-3 of the Local Public Officials Act provides that the head of a local government may transfer public officials under his/her jurisdiction with the consent of the head of other local government. The transfer of public officials under his/her jurisdiction by the head of a local government who gave his/her consent under the above provision is necessarily premised on the consent of the public official in question in light of the fact that the appointment authority is moving to a local government with different appointment authority, and

[2] The case holding that since the order of transfer under Article 29-3 of the Local Public Officials Act without the consent of the pertinent public official is unlawful and revoked, a disciplinary action, based on the premise that the order of transfer is lawful, is valid until the order of transfer is revoked by the fair power, it is unlawful because it exceeds the discretion in making a disciplinary decision.

[1] Article 29-3 of the Local Public Officials Act, Article 7(2) of the Constitution / [2] Article 29-3 of the Local Public Officials Act, Article 1 of the Administrative Litigation Act (general administrative disposition), Articles 19 and 27 of the Administrative Litigation Act

Plaintiff

Defendant 1

Seoul High Court Decision 97Gu48939 delivered on December 17, 1998

The appeal on the primary claim is dismissed. The judgment of the court below on the conjunctive claim is reversed, and the case is remanded to the Seoul High Court.

1. Summary of the judgment below

In full view of the evidence adopted by the court below, in order for Defendant 1 to move the plaintiff who is a local public official of the first time under Article 29-3 of the Local Public Officials Act (hereinafter referred to as the "Act"), who is a local public official of the first time, to the first group, on April 22, 1997. Defendant 2 consented on May 1 of the same year, and issued an order to move the plaintiff to the first group local public official of the same month (hereinafter referred to as the "transfer order of this case") on the 3th day of the same month. Defendant 1 ordered the plaintiff to move to the first group local public official of the same month at the same time on the 1st day of the same month without the plaintiff's consent, on the premise that the transfer order of this case was unlawful and thus, Defendant 1 did not appear to the first day of this case without the plaintiff's consent, and that the above order of disciplinary action of this case was unlawful under the premise that the above removal order of this case violated Article 2 of the Act without the plaintiff's consent.

2. Judgment of the Supreme Court

A. Article 29-3 of the Act provides that the head of a local government may transfer public officials under his/her jurisdiction with the consent of the head of another local government. The transfer of public officials under his/her jurisdiction by the head of a local government who gave consent under the above provision is premised on the consent of the public official in question in light of the fact that the appointment authority is moving to a local government with the different appointment authority. Since the above provision does not exclude the consent of the public official in question, it is not a provision unconstitutional or invalid. Thus, although the reasoning of the court below is inappropriate, the conclusion of rejecting the plaintiff's main claim based on

B. However, although the transfer under Article 29-3 of the Act is necessarily based on the consent of the public official concerned, the defendant's order of transfer of this case is the defendant without the consent of the plaintiff. Thus, the order of transfer of this case should be revoked in an unlawful manner without any further viewing. The plaintiff's ground of appeal asserted this is with merit.

In addition, as long as the order of transfer of this case is unlawful and thus should be revoked, the disciplinary action of this case issued on the premise that the order of transfer of this case is legitimate on the ground of this, even if the order of transfer of this case should be treated as effective until it is revoked by fair power, it is found that the order of transfer of this case goes beyond discretionary power, and the plaintiff's ground of appeal disputing this is also justified.

3. Therefore, since the plaintiff's appeal as to the primary claim is without merit, this part of the appeal is dismissed. The plaintiff's appeal as to the conjunctive claim is with merit, and this part of the judgment below is reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae- Jae (Presiding Justice)