(영문) 대전지방법원 2012.6.20.선고 2010구합1950 판결

1. Defendant Chungcheongnam-do’s Superintendent of the Office of Education revoked a dismissal disposition against Plaintiff 00 on November 19, 2009; 2. Plaintiff 00, 00, *, and 00 each of the claims is dismissed.

Of the costs of lawsuit, the part arising between Plaintiff 00 and the superintendent of education in Chungcheongnam-do shall be borne by the superintendent of education, and the part arising between Plaintiff 100 and Defendant 100 and the superintendent of education in Daejeon Metropolitan City shall be borne by the above plaintiffs. The part arising between Plaintiff 100, Plaintiff 00, Defendant 10, 100, and Defendant 200 and the superintendent of education in order to ensure that

Purport of claim

Order Paragraph 1 of this Article and the Superintendent of the Office of Education of Daejeon Metropolitan City on November 26, 2009, the reduction of salary against Plaintiff Kim0

Disposition in March, the Superintendent of the Office of Education in Chungcheongnam-do, the Superintendent of the Office of Education in November 19, 2009, the plaintiff 00, Kim* * each of the dispositions made in March 2009

The salary reduction disposition made against Plaintiff 00 in January of the post and the salary reduction disposition made against Plaintiff 00 shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. On September 1, 1982, Plaintiff Kim 00 was appointed at the Gyeonggi-do 00 elementary school on March 1, 2009 and transferred to Daejeon 00 elementary school on March 1, 2009 (the full-time officer of a trade union as of March 1, 2009) and is the head of the principal site department and the head of the policy office of the Korean Workers’ Labor Union (hereinafter referred to as the “full-time officer of a trade union”) of the Daejeon Branch of the Daejeon Branch of the Daejeon Branch of the Daejeon Branch of the Policy Office (the full-time officer of a trade union as of March 1, 2009) and appointed to the high school on March 1, 1994 (the full-time officer of a trade union as of March 1, 200). Plaintiff 0 was appointed at the 00 elementary school on March 1, 206.

3.1.1. He was transferred to Asan 00 elementary schools (the full-time officer of the union who was appointed from March 1, 2009 to the full-time officer of the union) Jeon Jong-nam branch of the Hasan branch of the Hasan branch of the Hasan branch, and Plaintiff Kim * was appointed to the Dan High School on September 1, 1987 and transferred to the 00 high school on March 1, 2008 (the full-time officer of the union from March 1, 2009 to the full-time officer, who was appointed to the Dansan branch of the Hanam branch, the full-time officer of the labor union), and Plaintiff 00 was appointed to the Dansan branch of the Hanam branch of the Hanam branch of the Hanam branch of the Haan branch of the Hanam branch of the Haan branch of the Haan branch of the Haan branch (the full-time officer of the labor union from March 1, 2009).

B. The Defendants violated Articles 56 (Duty of Good Faith), 57 (Duty of Compliance), 63 (Duty of Maintenance of Dignity), and 66 (Prohibition of Collective Action) of the State Public Officials Act, and Article 3 (Prohibition of Political Activities) of the Act on the Establishment and Operation of Teachers’ Unions due to the grounds for disciplinary action as follows, and the Superintendent of the Daejeon Metropolitan Office Office of Education was subject to one-month suspension from office against Plaintiff Kim 00 on November 26, 2009, and Defendant Chungcheongnam-do Office of Education was subject to one-month suspension from office against Plaintiff 10 on November 19, 2009, and the Superintendent of the Office of Education was subject to one-month suspension from office against Plaintiff 1 and Plaintiff 00 on November 19, 200, respectively.

The grounds of disciplinary action

1. On June 11, 2009, Plaintiff Kim 00- On the homepage of the Daejeon Branch of the Daejeon Branch of the Daejeon Branch of the Assembly, “The First Declaration was directed on the organization of the Assembly and Demonstration” (hereinafter “the First Declaration”) and “the organization of the Assembly and Demonstration is subject to participation, signature, unity, and utilization as a result of the Assembly and Demonstration,” leading and actively participated in the participation of the teachers in the signature movement and the Daejeon Branch of the Assembly. The Assembly and Demonstration led and actively participated in the participation of the teachers in the signature movement and the Daejeon Branch of the 361 Provisional Central Execution Committee (hereinafter “the Second Declaration”).

2. On June 9, 2009, Plaintiff 1 attended the 360th Central Execution Committee opened at the Jeon school’s headquarters and passed a resolution of the first assembly. After that, the head of the Jeon school, Chungcheongnam-gu Branch, through facsimile, as the addressee, sent a document stating “the school building will be known (on June 12, 2009)” and “the second school building will be known (on July 1, 2009),” and submitted it to the principal of the Jeon school support headquarters, under the direction of the former school support headquarters.

The Assembly and Demonstration Act (hereinafter “The Assembly and Demonstration Act”) led Plaintiff 00 and Kim * - The Assembly and Demonstration Act (hereinafter “The Assembly and Demonstration Act”) by stipulating the head of the Jeon school branch as the addressee for the same participation of the union members and teachers, and ordering the document “the notice of the Assembly and Demonstration Act,” and “the second teachers’ execution plan,” and managing a list, etc. The Assembly and Demonstration was signed directly at the first Assembly and Demonstration Act.

4. Plaintiff WhiteO - On July 2, 2009, on the homepage of the Jeondae-nam Branch, the report materials was prepared on July 29, 2009, stating that “the plan for the future strike and the request for coverage of one person’s demonstration” was “the person in charge of the social affairs of each press organization,” and the second assembly materials were sent to the person in charge of the social affairs of each press organization, and led the person to participate in the assembly by notifying him of the second assembly materials and soliciting his signature.

C. On December 15, 2009, Plaintiff KimO filed a petition with each teachers' appeals review committee on December 18, 2009. On March 16, 2010, the teachers' appeals review committee changed the disciplinary action against Plaintiff Kim 00 for three months, and all remaining plaintiffs' appeals review claims were dismissed (hereinafter referred to as "each of the instant disciplinary action against the Plaintiffs, including the disciplinary action against Plaintiff Kim 00 as a result of the appeal review).

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 7 (including number satisfy) and the purport of the whole pleadings

2. Whether each of the disciplinary actions in this case is legitimate

A. The plaintiffs' assertion 1) The non-existence of grounds for disciplinary action

The Assembly and Demonstration Act’s main contents are criticism on the government’s policies. This is within the scope of the freedom of expression as provided in the Constitution, which would result in promoting public interest. Thus, it cannot be deemed a collective act that may affect the duty of care for the purpose of violating the public interest. Therefore, there is no ground for disciplinary action against the Plaintiffs. In addition, in the case of Plaintiff WhiteO, the Assembly and Demonstration Act only prepared the report materials on the second one and distributed them to the reporters or made them on its website, and there is no fact that they recommended teachers to sign.

2) improper determination of disciplinary action

Even if there are grounds for disciplinary action against the Plaintiffs, each of the instant disciplinary action is unlawful as it deviates from and abused the scope of discretion.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

1) On May 28, 2009, the First Declaration was announced with 100 members of the Assembly and Demonstration, and on June 9, 2009, the Assembly and Demonstration was conducted with criticism on government policy and government administration and demanding government reform on the whole society level and on the grounds that the Assembly and Demonstration took place on June 9, 2009. 2) Jeon school took place with the attendance of Plaintiff 00 on June 9, 2009, 360 Central Executive Committee (the President, Vice-Chairperson, Vice-Chairperson, Head of Policy Office, Head of Affairs, and Head of the National Office, and Head of the City/Do, etc.)’s demand for the establishment of the Assembly and Demonstration, etc. on the basis of the National Assembly and Demonstration’s resolution on June 1, 2009, it is important to hold the Assembly and Demonstration’s 100 members of the Assembly and Demonstration, etc., which were related with the National Assembly and Demonstration’s 6th National Labor Organization, etc.

3) According to the above resolution, the Presidential Committee on the Execution of the Korean War shall prepare a draft and signature form for the Assembly and Demonstration, distribute them to each branch and sub-branch and sub-branch of the previous school, and encourage the teachers to participate in the Assembly and Demonstration by notifying the guidelines for the execution of the Assembly and Demonstration on the website, and puts the list of the Signatories. The plaintiff Kim 00 directed the City/Do Office of Education to actively guide the teachers to actively guide the teachers' participation in the Assembly on June 17, 2009, since it violated the provisions related to the service of the State Public Officials Act.

5) At around 11:00 on June 18, 2009, Jeon Jae-gu announced the first assembly and demonstration under the name of 16,171 teachers affiliated with the former school and the first assembly and demonstration. The plaintiffs signed on the first assembly and demonstration with the first assembly and demonstration.

6) The Assembly’s First Declaration referred to as “the investigation of candlelight demonstration,” “the investigation of the persons related to the PDbook,” “the death of the former President before labor force,” “the MD Fire incident,” “non-regular fire incident,” “the fourth class project,” “inter-Korean relations color,” and “an educational crisis,” etc., and criticizes that the crisis of democracy has occurred due to the current government’s reading and the operation of the Pdlelight and the Pdlelight. The Assembly’s first Declaration was a content that demands the President’s history, government reform, the thorough guarantee of the freedom of speech, media, assembly, human rights, and conscience, social consideration, suspension of the operation of the media law, the removal of competition-related school policy, the suspension of operation of school operation, and the guarantee of democratization in school operation.

7) On June 26, 2009, the Department of Education held a meeting of the Superintendent of the Provincial Office of Education of the City/Do on June 26, 2009 and accused all of the headquarters and branch officers of the First Declaration, including the Chairperson of the Jeon school assistant who led the First Declaration, and put a heavy disciplinary measure at the same time, and requested the Office of Education of the City/Do to issue caution or warning to general sign teachers.

8) On June 28, 2009, during the attendance of Plaintiff 1 on June 28, 2009, Jeon school opened a meeting jointly with and severally with the public officials on July 19, 2009 at the 361 Provisional Central Execution Committee, and decided to conduct the second assembly, and encourage the teachers belonging to Jeon school to participate in the second assembly with the form of notice on the website, e-mail, and dispatch of official correspondence, etc. In order to encourage the teachers belonging to Jeon school to participate in the second assembly, and the list of Signatories was taken. The Plaintiff KimO recommended the teachers to sign at the Daejeon Branch of Daejeon, Plaintiff 00, 00, and Kim ** in accordance with the direction of the headquarters at the Chungcheong Branch of Chungcheongnam branch, and was combined with the list of Signatories.

19) On July 1, 2009 and on the 15th of the same month, the Department of Education again notified that the acts of the former and its teachers’ signatures and acts were in violation of the provisions related to the service of the State Public Officials Act, and ordered the Office of Education of City/Do to actively guide the teachers’ participation. 10) on July 19, 2009: 00 to 14:20 on the same day; 14:00 to 20:0, the former and the Seoul plaza failed to prevent the government’s influence against martial law from harming the conscience and practice of the teachers who are able to open democracy; hereinafter, as an educator teaching democracy, it would be fit for the suppression of unfair public authority; hereinafter, “the former and the latter’s efforts to direct and withdraw the assembly and demonstration,” which include the three-way assembly and demonstration for the purpose of confirming the right of conscience and freedom of expression; and hereinafter, “the former and the latter’s efforts to 2nd democracy.”

11) The main contents of the second assembly and demonstration are as follows: “The freedom of speech and expression to the teachers who are all the members of the nation is a natural fundamental right,” and “the freedom of speech and press cannot be viewed as a fundamental right,” and it cannot be said that the entrance of teachers is reconvened and democratic and human rights. Therefore, the direction of disciplinary action and accusation by the Department of Education is unconstitutional abuse of public authority that destroys the basic democratic order.”

The Assembly and Demonstration Act requires the withdrawal of disciplinary measures against teachers as the Assembly and Demonstration Act. On the other hand, we argued the legitimacy of the First Assembly and Demonstration Act, which is the expression of opinion of the teachers belonging to the previous school group on a political issue where the majority of the public was flick, and urge the President to "the way to protect the people's voice and to build the democracy again in this country," which is the way to overcome the crisis of the present state, to overcome the crisis of the present state, and to build a new state's attitude. 12) After the second announcement of the Assembly and Demonstration, it was from July 19, 200 to 17:00 the same day from the Second Assembly and Demonstration, the Assembly and Demonstration of the Republic of Korea's Democratic Assembly and Demonstration of the People's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Ministry of Labor.

13) The participants of the Assembly held that they participated in the assembly and assembly by taking advantage of the following political arguments: “The assembly and assembly was an assembly and demonstration with a view to blocking the MBA,” and “the assembly and assembly was an assembly and demonstration with a view to taking advantage of the political relief,” “the assembly and assembly with a view to taking advantage of the four major major courses of the assembly and assembly,” “the assembly and assembly with a view to taking advantage of the four major courses of the assembly and assembly,” “the assembly and assembly with a view to taking advantage of the Republic of Korea,” “the assembly and assembly with a view to taking advantage of the four major courses of the assembly and assembly and demonstration,” “the assembly and assembly of the Republic of Korea,” “the democratic party,” “the Seoul Special Metropolitan City Party,” “the creative Korea Party,” “the National Transport Industry Union,” “the thickness,” “the National Transport Industry Union,” and “the alternative for labor and social organization,” etc.

14) From 00 to 19:00 on the same day, from 17:0 to 19:00 on the same day, 'the second national conference for democratic recovery and the second national conference for the people of the YTNn' to the society of the chairman of the YTN NM. The participants of the assembly have withdrawn from the press law, 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the ' the ' the ' the 'the ' the ' the ' the ' the ' the ' the ' the

[Grounds for Recognition] Unsatisfy, entry of Eul evidence 1 to 14 (including each number), the purport of the whole pleadings

D. Determination

1) A judgment on the grounds of disciplinary action is made on the Plaintiff 00’s act more than the purport of the entire pleadings as stated in the evidence 7-5, 9-1, and 2-2 of the evidence 7-1, the Plaintiff 00 signed the First Declaration of the Assembly and Demonstration while the Plaintiff 00 was on the full-time officer of the trade union (the chief of the policy office of the Chungcheongnam-nam branch office) who was performing the duties of the Jeonyang-nam branch as the full-time officer of the trade union, and ② Plaintiff 00 was on July 2, 2009

In light of the above facts, it can be recognized that the Plaintiff 00 actively participated in the assembly and demonstration with other former executives, and the Plaintiff 00 did not actively participate in the assembly and demonstration. Thus, it is not reasonable to conclude that the Plaintiff 00 did not actively participate in the assembly and demonstration. In light of the above facts, it is reasonable to conclude that the Plaintiff 00 did not actively participate in the assembly and demonstration.

B) Determination as to whether the plaintiffs' act violated Article 66 (1) (Prohibition of Collective Action) of the State Public Officials Act

Article 66(1) main text of the State Public Officials Act provides that public officials shall not engage in collective activities for labor movement or any other work other than public duties. Here, “collective activities for purposes other than public duties” means all collective activities conducted by public officials for any work other than public duties, and it means collective activities that affect the public interest’s exercise of duty by comprehensively taking into account the principles of press, assembly and association under the Constitution, the purport of the State Public Officials Act, the duty of good faith and duty of care under the State Public Officials Act, etc. (see, e.g., Supreme Court Decision 2003Do2960, Apr. 15, 2005). (1) The Assembly and Demonstration’s Act does not stipulate that “collective activities for purposes other than public duties have been carried out by the First Assembly and Demonstration’s First Assembly and Demonstration’s First Assembly and Demonstration’s First Assembly and Demonstration’s First Assembly and Demonstration’s First Assembly and Demonstration’s First Assembly and Second Assembly and Demonstration’s First Assembly and Second Assembly and Demonstration’s First Assembly and Demonstration’s First Assembly and Demonstration’s Second.

7. The Assembly and Demonstration Act’s function is to convey basic knowledge generally accepted by the Assembly and Demonstration Act(Article 20(3) of the former Elementary and Secondary Education Act prior to the amendment by Act No. 10914) is to change the nature or content of duties between the teachers of elementary and secondary schools and the teachers of high schools. As such, even if the Assembly and Demonstration were conducted at the national and public universities around the same time, the first Assembly and Demonstration cannot be evaluated on the same line. (4) The Plaintiff’s former officers, including the Plaintiffs, led not only the teachers belonging to the former and non-members to participate in the First Assembly and Demonstration Act on a large scale, such as encouraging them to participate in the First Assembly and Demonstration. In full view of the above, the act may interfere with the teachers’ performance of their duties, changing the school as a political public figure, thereby affecting the educational environment of the students, and ultimately, the Plaintiffs’ act with other senior executives would have a clear political intent or influence on the political purpose of the government, which is a public official.

Article 66(1) of the Assembly and Demonstration Act (amended by Presidential Decree No. 2010, Apr. 19, 2011) provides that “The Assembly and Demonstration Act No. 2000, Apr. 19, 2011)” means “the Assembly and Demonstration Act No. 2000, Feb. 2011, 2011; “The Assembly and Demonstration Act No. 2010, Apr. 19, 2011)” means “the Assembly and Demonstration Act No. 2000, Feb. 19, 2011; No. 2010, Jan. 2, 2011; No. 2010, Jan. 1, 2012; 2010, Jan. 1, 2012; 2010)” means “the Assembly and Demonstration Act No. 2000, Feb. 1, 2011>

(4) In a case where disciplinary action is taken against a person subject to disciplinary action who is a public official, the disciplinary action is held at the discretion of the person having authority over disciplinary action. However, the disciplinary action may be deemed unlawful only when it is deemed that the person having authority over disciplinary action has abused discretion by social norms. In order to determine that disciplinary action against a public official has considerably lost validity by social norms, the disciplinary action should be deemed as clearly unreasonable in light of the contents and nature of the offense causing disciplinary action, administrative purpose to be achieved by disciplinary action, criteria for disciplinary action, etc. And even if the person having authority over disciplinary action has been placed at the discretion, it would be against the public interest principles that should be exercised for the public interest, or would be considered as grounds for disciplinary action against the person who has been subject to disciplinary action against the above public official, and thus, it would be against the principle of proportionality or the principle of disciplinary punishment that would be applied to the same extent as that of an excessive disciplinary action, and thus, it is unlawful for the court to dismiss the plaintiff from office as a public official without justifiable reason.

B) In full view of various circumstances, the above plaintiffs, who are public officials requiring political neutrality under the Constitution, were engaged in active political activities in violation of the positive law, and were in charge of the promotion of each assembly and demonstration as executives of the Daejeon Branch and Chungcheongnam Branch and Chungcheongnam Branch, and the above plaintiffs' act cannot be said to have a negative impact on the official fairness and trust of the public. Thus, each disciplinary action against the above plaintiffs is objectively obvious and unreasonable, and it cannot be deemed that they deviate from or abused the scope of disciplinary discretion.

3. Conclusion

Therefore, the claim of this case by the plaintiff le00 is accepted on the grounds of its reasoning, and each claim of this case by plaintiffs Kim 00, O00, Kim *, and MaO is dismissed on the grounds of its merit. It is so decided as per Disposition.

Judges

Judges in charge of fishing

Judges Jeon Jae-il

Judges Lee Jae-sung

Note tin

1) The Plaintiffs are arguing only that the Defendants violated the prohibition of collective action among the grounds cited by the Defendants as the grounds of the instant disciplinary action, and the remainder.

There is no argument about the duty of good faith, duty of obey, duty of maintenance of dignity, and violation of prohibition of political activities.