Plaintiff (Law Firm Apex, Attorneys Yoon k-young et al., Counsel for plaintiff-appellant)

Director of the National Intelligence Service (Attorney Lee Jong-il, Counsel for defendant-appellant)

August 20, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's dismissal disposition against the plaintiff on June 11, 2009 shall be revoked.

1. Details of the disposition;

A. The Plaintiff was appointed to the National Intelligence Service on January 200, and served as the five team members (class V) of the Security Investigation Bureau from September 23, 2008.

B. On May 8, 2009, the Defendant requested the High Disciplinary Committee to take disciplinary action against the Plaintiff on the grounds that the Plaintiff committed an act falling under Article 24 subparag. 1 (violation of Acts and subordinate statutes) and subparag. 3 (damages to Dignity and Dignity) of the National Intelligence Service Staff Act as follows. Accordingly, on May 29, 2009, the High Disciplinary Committee held the Disciplinary Committee against the Plaintiff and decided to take disciplinary action against the Plaintiff as “tuition, etc.”

During the course of performing occupational training in Japan, Nonparty 1, who was recruited to Japan, was living together, disclosed confidential information learned in the course of performing his/her duties, such as the actual status of the organization activities in North Korea in South and North Korea, and Nonparty 1 unilaterally notified Nonparty 1 of his/her relationship and caused Nonparty 1 to file a civil petition requesting to punish Nonparty 1 as sexual intercourse in the name of a person having sexual intercourse on the National Intelligence Service website.

C. On June 9, 2009, the Defendant deemed that the High Disciplinary Committee’s resolution is less than that of the grounds for the disciplinary action, and requested a High Disciplinary Committee to re-examine the Plaintiff. On June 9, 2009, the High Disciplinary Committee held a disciplinary committee for re-examination against the Plaintiff and decided to dismiss the Plaintiff.

D. On June 11, 2009, the Defendant issued a dismissal disposition against the Plaintiff, who violated the duty to maintain dignity (Article 63 of the State Public Officials Act) and the duty to maintain confidentiality (Article 17 of the Staff of the National Intelligence Service Act) (hereinafter “instant disposition”).

【Ground of recognition】 The fact that there has been no dispute, Gap's 1 through 7 evidence, Eul's 4 through 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The assertion that there is a procedural error

If there is no disciplinary committee at the immediately higher agency of the National Intelligence Service, the defendant's request for reexamination of the disciplinary decision of the High Disciplinary Committee violates the procedure on review of disciplinary action under Article 82 (2) of the State Public Officials Act.

Even if the High Disciplinary Committee can file a petition for reexamination with the High Disciplinary Committee, it is illegal that the defendant's request for reexamination to the High Disciplinary Committee composed of new members in order to ensure fairness of the Central Disciplinary Committee or the High Disciplinary Committee under the jurisdiction of the Prime Minister so that the independence of the Disciplinary Committee can be guaranteed.

2) Claim that does not constitute a ground for disciplinary action

The Plaintiff’s explanation to Nonparty 1 is irrelevant to the actual status of the activities of North Korea’s North Korea joint venture organization in Japan. The Plaintiff’s act does not constitute a violation of the duty to keep confidential information on his/her duty because it is merely a fact of public notification that is not worth confidentiality.

In addition, the argument of Nonparty 1 is mostly different from facts, and the actual relationship between the Plaintiff and Nonparty 1 is the part corresponding to the private life area, so it cannot be said that Nonparty 1 violated the duty to maintain dignity.

3) The assertion that it is a deviation or abuse of discretionary power

Even if the grounds for disciplinary action are acknowledged, the Plaintiff did not have been subject to a disciplinary action after being appointed to the National Intelligence Service in 2000, and was an excellent employee, such as setting up several times to be selected as a person subject to professional personnel training in security investigation into the Republic of Korea, etc. As such, the instant disposition is considerably more unfavorable than the public interest to be achieved, the instant disposition is unlawful as it deviates from or abused the bounds of discretionary authority.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) The Plaintiff was employed by the NIS from December 1996 to May 1997, and entered the National Intelligence Service around January 2, 200. The Plaintiff inquiredd Nonparty 1’s personal information without permission through the National Intelligence Service’s computer network on May 6, 2004, and expressed the fact that Nonparty 1 met her or the Plaintiff joined the National Intelligence Service around September 2004.

2) From July 5, 2008 to December 31, 2008, the Plaintiff, based on the National Intelligence Service’s operational plan, conducted the National Intelligence Service’s performance of job training for large-day investigation conditions by pretending the status in Japan. On October 2008, the Plaintiff solicited Nonparty 1 to play in Japan around October 2008 during the job training, and Nonparty 1 recommended the Plaintiff to play in Japan, and he did not have to go to Japan in order to play in the match. Accordingly, the Plaintiff continued to attract Nonparty 1 to go to Japan. On November 14, 2008, the Plaintiff continued to go to go to Japan.

3) At the end of November 2008, the Plaintiff took photographs to Nonparty 1 as a pro-North organization decided by anti-government organization, on the building in which the branch of the Korea Democratic Unification Union branch is located, and called ○○ tourr, and took photographs. The Plaintiff took photographs of the guide signboards of the entrance of the building and the occupancy office in North Korea as a tourr who arrived at the building on which the ○○ tourr was located and carries out by proxy the travel procedures for North Korea to North Korea. The Plaintiff took photographs of the establishment site of the ○○ tourr Construction site of the building and took photographs of the guide signboards of the entrance of the building and the occupancy office. The Plaintiff collected data and information related to North Korea. The Plaintiff took photographs of the establishment site of the ○○ tourr Construction site of the building and took the place where the office of the trade company and the youth organization was located in the lower place for North Korea. The Plaintiff finished the work of entering specific information into a map using a computer and stored it in the CD.

4) Nonparty 1 entered the Republic of Korea on December 8, 2008, and the Plaintiff entered the Republic of Korea on December 31, 2008. The Plaintiff met at Nonparty 1’s house located in Jeonju, around January 3, 2009 and around January 17, 2009.

On January 24, 2009, the Plaintiff found at Nonparty 1’s house and notified Nonparty 1 to the effect that “I will know how much time is available to receive money.” The Plaintiff was living together with Nonparty 1, who had been living in the house with the female (e.g., drinking house employee) for more than one year prior to the day, and lent KRW 30 million to that female. The female returned to the house on January 21, 2009. The female returned to the house on January 21, 2009.”

5) Accordingly, Nonparty 1 sent a text message to the Plaintiff that he would report to the National Intelligence Service on that day. On March 5, 2009, on the website of the National Intelligence Service, the Plaintiff engaged in sexual indecent conduct by deceiving the Plaintiff as if he/she were to marry by taking advantage of the position of the NIS investigation staff (official in charge of the National Intelligence Service), and Nonparty 1 explained the information activities, such as taking photographs along with the Plaintiff, and entering the PDA guidance search.

6) 한편, 원고는 2005. 3.경 술집을 운영하는 소외 2에게 2,500만 원을 대여하였고, 수회 소외 2의 숙소에서 소외 2와 동침하기도 하였다. 소외 2는 2009. 2. 21. 소외 1에게 원고의 전화번호 뒷자리와 같은 번호로 ‘기가 꺽였나봐요 소외 1씨 대차게 밀고 나가야죠 일본에서 25일 같이 살았다면서요’, ‘부안 부모님 집까지 다녀온 거 아는데 잘 안 풀렸어요 돈 많다고 들었는데 경 돈 많이 필요할 걸요’라는 내용의 문자메시지를 보냈다.

【Ground for recognition】 The fact that there has been no dispute, Gap's 6, 7, 10, 13 through 20, 23, Eul's 1, 2, and 4, and the purport of the whole pleadings

D. Determination

1) As to the first argument

In order to review and decide on disciplinary cases of employees, Article 25(1) and (2) of the National Intelligence Service Employee Act provides that the National Intelligence Service shall establish a disciplinary committee in order to review and decide on disciplinary cases of employees; the organization, type, authority, procedures for review, and other necessary matters of the disciplinary committee shall be prescribed by Presidential Decree; Article 30(1) and (2) of the Enforcement Decree of the same Act provides that the High Disciplinary Committee and the General Disciplinary Committee shall be established in the NIS; and the High Disciplinary Committee shall review and decide on disciplinary cases of employees of Grades 1 through 5. In addition, Article 30 of the National Intelligence Service Employees Act provides that the provisions concerning public officials in general service of the State Public Officials Act shall apply mutatis mutandis to employees of Article 30 of the National Intelligence Service Employees Act, except as otherwise provided in special provisions. Article 82(2) of the State Public Officials Act provides that the head of the agency that requested a resolution of disciplinary action may request a disciplinary committee established in the immediately higher agency prior to taking such action.

Article 82 (2) of the State Public Officials Act recognizes the head of the agency who requested a disciplinary decision as to the resolution of the disciplinary committee as to the recognition of grounds for disciplinary action and propriety of the determination of disciplinary action, etc. is bound by the resolution of the disciplinary committee. In addition, the person having authority to request a disciplinary decision is granting authority to the person having authority to request a disciplinary decision to the extent to request a reexamination as to the determination of disciplinary decision. In light of the fact that the authority to request a disciplinary decision has no special provision on the authority to request a reexamination under the National Intelligence Service Employee Act, and that the National Intelligence Service Employee Act separates the disciplinary committee, it is reasonable to deem that Article 82 (2) of the State Public Officials Act applies mutatis mutandis under Article 30 of the National Intelligence Service Personnel Act. Thus, the defendant has the right to request a reexamination.

Furthermore, the President, who is the immediate superior agency of the National Intelligence Service, did not have a disciplinary committee, and Article 82(2) of the State Public Officials Act provides that a request for reexamination of a resolution of the disciplinary committee established under the jurisdiction of the Prime Minister (which does not exist in the superior agency of the National Intelligence Service) shall be made by the Prime Minister; the central disciplinary committee under the jurisdiction of the Prime Minister is not the disciplinary committee of the National Intelligence Service; the central disciplinary committee under the jurisdiction of the Prime Minister is not the higher agency of the National Intelligence Service; the organization of the disciplinary committee does not vary in the relevant Acts and subordinate statutes; and if the composition of the committee differs from the higher disciplinary committee at the time of the reexamination of the High Disciplinary Committee, it is possible to reflect the defendant's intention to appoint the disciplinary committee members; the defendant's request for reexamination is lawful; and it is not unlawful even if the Central Disciplinary Committee of the Prime Minister did not

Therefore, this part of the plaintiff's assertion is without merit.

2) As to the second argument

A) One of the requirements stipulated in Article 17(1) of the National Intelligence Service Employee Act requires protection as a substantial fact that is not known to the general public. Meanwhile, this does not protect the confidentiality itself, but rather is to protect the interests that may be dangerous by infringement of the National Intelligence Service employee’s duty of confidentiality, namely, the national function that may be threatened by the divulgence of secrets. The scope of the confidentiality should be limited to the minimum necessary scope to expand the scope of the citizen’s freedom of expression or the right to know to the maximum extent possible (Supreme Court Decision 2003Do547 Decided November 28, 2003).

In light of the above legal principles, in light of the following circumstances acknowledged by the health team, the above-mentioned facts, and the evidence, the purpose of the training of duties, the subject and method of collecting information, and the photograph information collected, etc., of the Plaintiff’s act of divulging such secrets constitutes a violation of the duty of confidentiality under the Staff of National Intelligence Service Act.

① It is true that the Plaintiff, as an employee of the National Intelligence Service, is staying in Japan to gather information on pro-Japanese organizations based on the disguised status of the National Intelligence Service; the ○ traveler, etc. is subject to the collection of information by the National Intelligence Service; the method of collecting information by photographing pictures of pro-North groups and inputting specific information into guidance; Nonparty 1’s pictures and information on the facilities that were confirmed by Nonparty 1, accompanied by the report on the results of job training prepared by the Plaintiff.

② The Plaintiff’s aforementioned disclosure of the performance of duties in Japan may lead to diplomatic conflicts between Korea and Japan. The Plaintiff’s activities and information collected are materials that can measure the duty and information capacity, etc. performed by the National Intelligence Service. If the above information is leaked, it may threaten the function of the State or the National Intelligence Service by hindering the National Intelligence Service’s normal collection of information.

B) Next, in light of the following circumstances acknowledged by the health team, the above-mentioned facts, and the evidence, as to whether the Plaintiff violated the duty to maintain dignity, it shall be deemed that the Plaintiff violated the duty to maintain the dignity as a public official.

① Even if the Plaintiff did not intend to marry with Nonparty 1 but did not have any reason to resort to Japan during the job training, the Plaintiff invited Nonparty 1 to enter Japan, and even if Nonparty 1 refused to travel to Japan over several occasions and revoked his airline ticket, Nonparty 1 responded to the invitation of the Plaintiff. Nonparty 1 was living with Nonparty 1 and Nonparty 24 days in Japan, and the Plaintiff was living with the Plaintiff’s family for 2-day days in Japan, and some of the Plaintiff’s wifes known Nonparty 1 as the Plaintiff’s spouse. In light of the above, it is reasonable to deem that: (a) the Plaintiff promised to marry and invited Nonparty 1 to Japan; or (b) Nonparty 1 was aware of Nonparty 1 as the Plaintiff’s spouse; (c) there was a positive attitude on marriage.

② Even if the Plaintiff did not promise to marry to Nonparty 1, Nonparty 1 invited Nonparty 1 to Japan without premised on marriage. In Japan, he liveded for 24 days with the Plaintiff’s relative and travel with the Plaintiff’s family, and had Nonparty 1 visit Nonparty 1’s home or have a sexual intercourse even after returning to Korea, which led to the misunderstanding that Nonparty 1 is taking charge of marriage at least on the premise of marriage.

③ In light of the fact that the back number of the Plaintiff and Nonparty 2 are the same, that Nonparty 1 and Nonparty 2 sent text messages to Nonparty 1, that the Plaintiff extended money to Nonparty 2, and that Nonparty 2 had a sexual relationship at the home of Nonparty 2, the Plaintiff seems to have a close relationship with Nonparty 2.

④ The Plaintiff tried to liquidate the relationship with Nonparty 1 on the ground of the above relationship with Nonparty 2, thereby resulting in submission of a written petition demanding Nonparty 1 to punish the Plaintiff on the website of the National Intelligence Service, which led to the Plaintiff’s relationship with Nonparty 1 and Nonparty 2, and the Defendant’s wife, who was irrelevant to the relationship with Nonparty 1 and Nonparty 2, became known to the NIS employees.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3) As to the third argument

Whether to take a disciplinary measure against a person subject to disciplinary action who is a public official is at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take a disciplinary measure as an exercise of the discretionary authority has considerably lost validity under the social norms, it is illegal to take the disciplinary measure. In order to deem that a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by taking into account various factors, such as the content and nature of the misconduct causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for the determination of the disciplinary measure, etc., and the contents of the disciplinary measure should be deemed objectively unreasonable (Supreme Court Decision 2002Du6620 delivered on September 24, 2002).

In full view of the circumstances asserted by the Plaintiff, such as the fact that an agency in charge of information and security-related affairs related to national security requires more confidentiality than other public officials, and that the Plaintiff’s activities may interfere with the performance of duties of the National Intelligence Service, such as the collection of information in Japan and the performance of special duties in Korea and Japan, if known to the outside, it may interfere with the performance of duties of the National Intelligence Service. As such, even if considering the circumstances asserted by the Plaintiff, the instant disposition cannot be deemed to have considerably lost validity under the social norms, and thus, it cannot be deemed that it deviates from or abused the discretionary power assigned to the person having authority over disciplinary measures. Accordingly,

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

[Attachment Form 5]

Judges Lee Jae-ho (Presiding Judge)