(영문) 서울행정법원 2020.7.9. 선고 2019구합85867 판결

A. On August 13, 1992, the Plaintiff was appointed as a teaching staff and promoted to the teaching staff on August 13, 2007, and served in the B prison welfare division of the Seoul Regional Correctional Agency from October 30, 2017.

B. On December 3, 2014, the Plaintiff was punished by a fine of KRW 1.5 million due to the violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents in relation to the said traffic accident, where the Plaintiff was negligent in failing to make a left-hand turn at the intersection and shocked the front-hander of the vehicle driven on the opposite side, thereby causing injury to the other party for about two weeks (hereinafter “the instant traffic accident”).

C. On January 13, 2015, the head of the atomic correctional institution issued a warning against the Plaintiff on the ground that the Plaintiff caused the instant traffic accident, thereby violating the duty of good faith provided in Article 56 of the State Public Officials Act and the duty to maintain dignity provided in Article 63 of the same Act (hereinafter “instant warning”).

D. On January 14, 2015, the Minister of Justice enacted the Regulations on the Personnel Management of Correctional Officials (Ordinance of the Ministry of Justice No. 975, Jan. 19, 2015), and prepared a ‘standards for examination of disadvantages in promotion to disciplinary persons, etc.'. According to the above criteria, a person subject to minor disciplinary action (including warning of non-explosion) is limited to promotion once.

E. On May 31, 2019, the base date for promotion for continuous service at Grade 6, 2019, the Plaintiff was included in a person subject to promotion review, meeting the 11-year period of continuous service promotion as of May 31, 2019.

F. The Defendant, on June 10, 2019, excluded the Plaintiff from the scope of promotion for continuous service as an assistant principal on the ground that the appointment for continuous service promotion was made to a person eligible for promotion for class 6 continuous service promotion, and that there was a power of being subject to the instant written warning against the Plaintiff, and that the promotion was limited once (hereinafter “instant disposition”).

G. On July 4, 2019, the Plaintiff appealed and filed a petition review with the Ministry of Personnel Management, but the appeals review committee dismissed the Plaintiff’s petition on September 4, 2019.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Determination on this safety defense

A. Summary of this defense

The Defendant issued an appointment for continuous service promotion of class VI on June 10, 2019, and did not impose any restriction on appointment against the Plaintiff. Therefore, the instant lawsuit is unlawful as it does not exist any disposition subject to appeal, on the ground that there is no disposition subject to appeal.

B. Determination

Article 40-2 (3) of the State Public Officials Act provides that promotion other than promotion by promotion and promotion examination for public officials of Grade I shall be appointed from among public officials of the immediately lower grade in the same series of class, but with regard to the number of vacancies to be filled, appointment shall be made in order of precedence in the list of candidates for promotion within the extent prescribed by Presidential Decree. Article 35-4 (4) of the former Decree on the Appointment of Public Officials (amended by Presidential Decree No. 29868, Jun. 18, 2019; hereinafter the same shall apply) provides that candidates for continuous service promotion for public officials of Grade VI shall be public officials of Grade VII who are listed in the list of candidates for promotion and meet the requirements necessary for continuous service promotion, and Article 13 (1) of the former Rules on the Appointment of Public Officials (amended by Ordinance of the Ministry of Personnel Management No. 73, Jun. 18, 2019; hereinafter the same shall apply) provides that general promotion screening committees shall examine all the persons subject to promotion in the same rank.

According to the aforementioned relevant statutes, the person who has the authority to appoint correctional public officials shall examine whether to promote a candidate in the order of priority after the promotion candidates list, and accordingly, a candidate included in the promotion candidates list is expected to undergo a justifiable examination from the appointing authority. However, in cases where the appointing authority, etc. excluded the candidate included in the promotion candidates list for arbitrary reasons, if such exclusion disposition is not considered a disposition subject to appeal litigation, then there is no other way to remedy the right infringed upon. Accordingly, the act of excluding the candidate included in the promotion candidates list in the promotion candidates list by the promotion examination method by the promotion candidates list should be deemed to constitute a disadvantageous disposition, which is subject to appeal litigation (see Supreme Court Decision 2017Du34162, Mar. 29, 2018).

On May 31, 2019, the date of the examination for continuous service promotion of Grade VI, the Plaintiff met the 11 year period of continuous service promotion as of May 31, 2019, and was included in the person subject to examination for promotion. As such, it is reasonable to view that the instant disposition, which excludes the Plaintiff who meets the requirements of employment required for appointment of Grade VI continuous service promotion, constitutes a disposition subject to appeal litigation. Therefore, the Defendant’s principal safety defense is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

1) Although Article 32(1) of the former Decree on the Appointment of Public Officials provides that the grounds for restrictions on promotion under Article 40(3) of the former Decree on the Appointment of Public Officials shall be referred to as “a lecture, suspension from office, reduction of salary, or reprimand,” it is against the superior law and subordinate statutes to determine the ‘unwritten warning' under Article 8(1) and [Attachment 1] of the Rules on the Personnel Management of Correctional Officials on the Appointment of Public Officials as a basis of examination for promotion without any legal basis.

2) The Plaintiff was subject to the instant written warning on January 13, 2015, and the former Rules on the Personnel Management of Public Officials were subsequently enacted and enforced January 19, 2015. The instant disposition that excluded the Plaintiff from the subject of continuous service promotion on the ground of the instant written warning disposition, which was made before the enactment of the former Rules on the Personnel Management of Public Officials, violates the principle of prohibition of retroactive legislation.

3) In light of the Plaintiff’s decoration and decoration experience, unconstitutional performance of duties, excellent performance of duties, etc., the instant disposition that excluded the Plaintiff from the promotion of the Plaintiff solely on the ground of the instant non-explosive warning disposition constitutes deviation and abuse of discretionary power by excessively harshing the Plaintiff.

B. Whether the application violates superior statutes

1) Contents of the relevant provisions

According to the main sentence of Article 40(1) and (3) of the State Public Officials Act, any appointment by promotion between ranks shall be based on work performance rating, career rating, and other proven capabilities, and the minimum service years by rank, restrictions on promotion, and other matters necessary for promotion shall be prescribed by Presidential Decree, and Article 40-2(3) of the same Act shall be prescribed by Presidential Decree. According to Article 40-2(3) of the same Act, any appointment by promotion, other than paragraphs (1) and (2) of the same Article, from among public officials of the immediately lower class in the same job series, shall be made in order of

In order to promote public officials of class IV or below, the appointment of the Gu shall undergo a promotion screening by an ordinary promotion screening committee, and the appointment authority shall comply with the results of the examination except in extenuating circumstances (Article 34-3(1)); the appointment authority may not be appointed for continuous service in excess of the number of persons equivalent to 30/10 of the candidates for continuous service promotion of the relevant agency (Article 35-4(5)); and matters concerning the methods of promotion for continuous service and personnel management shall be determined by the Minister of Personnel Management (Article 35-4(8)).

The former rules of appointment of public officials stipulate that "the results of the evaluation of service performance, the order in the list of candidates for promotion, whether a person has served for an essential period of service or more, the number of years of service in the relevant rank, etc., "money and valuables and entertainment, public funds embezzlement and misappropriation, drinking driving, etc.", "other career experience, human resources (state position, loyalty, integrity degree, trust degree, responsibility sense, etc.), capacity (such as planning, research and execution ability, ability to conduct duties, ability to command and take command, etc.), etc." (Article 12) In addition, the ordinary review committee provides that all persons subject to promotion screening shall be subject to promotion by examining the eligibility and order of the candidates for promotion in accordance with the above criteria of examination (Article 13). Furthermore, detailed implementation guidelines necessary for the operation of the ordinary promotion committee shall be prescribed by the Minister of Justice (Article 16).

Article 8 (1) of the former Rules on the Personnel Management of Public Officials (amended by the Ministry of Justice Directive No. 1153, May 14, 2018; hereinafter the same) provides that "The examination of promotion for persons subject to disciplinary action, criminal punishment, etc. shall be strict, and any persons subject to minor disciplinary action (including non-written warning) in attached Table 1 shall be subject to unfavorable standards to "one-time restriction on promotion from the relevant class".

2) Specific determination

In full view of the aforementioned provisions of the relevant statutes, the Defendant’s act of promotion for continuous service is discretionary, and the former Rules on Personnel Management of Public Officials provide and notifies the Defendant, which is a subordinate administrative agency, with respect to the act of promotion for continuous service, to the Defendant, etc., the Minister of Justice, who is a senior administrative agency, constitutes the administrative agency’s internal rules on administrative affairs, namely, discretionary rules. As such, setting the standards necessary for the exercise of discretionary authority also belongs to the administrative agency’s discretion, and as long as it is deemed that the administrative agency abused discretionary authority as it objectively unreasonable and unreasonable (see, e.g., Supreme Court Decision 2011Du28783, Nov. 14, 2013).

Considering the fact that the security and management of correctional institutions and the edification of prisoners are in charge of correctional institutions, which requires higher level of morality, ethics and compliance consciousness than general public officials, and the misconduct of correctional officials is likely to undermine the people's trust in the entire correctional institutions as well as individuals of the relevant correctional officials, the former rules on the personnel management of correctional officials, which stipulate the force of non-explosive warning for reasons of restrictions on promotion, can recognize its rationality and validity.

Therefore, Article 8 (1) and [Attachment 1] of the former Rules on the Personnel Management of Public Officials shall not be deemed to violate the superior laws and regulations. Therefore, this part of the Plaintiff’s assertion is without merit.

C. Whether it violates the principle of prohibition of retroactive legislation

1) Relevant legal principles

Retroactive legislation can be divided into a genuine-level legislation that allows the application of a new legislation to a new fact or legal relationship that has already been completed and an in-service legislation that allows the application of a current fact or legal relationship to a pending one. Of these, a genuine-level legislation that imposes a deprivation of an individual’s legal status that has already been formed under the existing law through an ex post facto legislation is in principle not permitted in accordance with the rule of law that covers the protection of individuals’ trust and legal stability. On the other hand, in principle, in the process of a bridge between the reasons for public interest and the reasons for personal protection that require a retroactive effect, the scope of the legislation may be limited. In addition, the principle of prohibition of retroactive legislation is only the meaning that the relevant law cannot be applied to the requirements that have already been completed before the entry into force of the relevant law, and it does not limit the application of the statutes to the facts that have been pending or the requirements that have already occurred (see, e.g., Supreme Court Decision 2015Du60020, Jan. 3

Even in cases where the relevant statute is amended, barring any special provision, an administrative disposition is in principle based on the amended law that enters into force at the time of the disposition and the standards set thereon. Even in cases where the amended law provides a more unfavorable legal effect than the previous one in relation to the rights of the people with regard to the existing facts or legal relations subject to the application of the amended law, if such facts or legal relations are not completed or terminated before the enforcement of the amended law, it shall not be deemed a violation of the rights by retroactive legislation prohibited under the Constitution. In relation to the application of such amended law, there is room for limiting the application of the amended law in order to protect the public’s trust in the existence of the existing statute more than the public interest demand for the application of the amended law (see, e.g., Supreme Court Decision 97Nu13818, Mar. 10, 2000).

2) Specific determination

On August 13, 2018, when three or more years have elapsed since the enforcement date of the former Rules on the Personnel Management of Public Officials, the Plaintiff was included in the person subject to the examination for the promotion of assistant principal as of May 31, 2019, and the former Rules on the Personnel Management of Public Officials for Correctional Service met the 111 year period of continuous service promotion as of August 13, 2018. Thus, the former Rules on the Personnel Management of Public Officials for Correctional Service provide for the reasons for restriction on the promotion of unexplosion warning power, and do not constitute a genuine legislation. Furthermore, the enactment of the former Rules on the Personnel Management of Public Officials for Correctional Service does not constitute an excessive violation of the Plaintiff’s trust in the status prior to the enactment of the said Rules, or a trust in which the Plaintiff’s trust is protected. Rather, the criteria for the examination of promotion of public officials for public officials are higher than that of public officials in our society due to changes in the age, the strengthening of such criteria is reasonable under the social norms, and thus, cannot be viewed as a retroactive application of the former Rules.

(d) Whether the discretion is deviates or abused;

1) Relevant legal principles

The promotion of public officials is subject to more wide discretion than an administrative disposition against the general public or a disciplinary action against a public official within the scope prescribed by statutes. Therefore, if a decision to exclude a candidate included in the promotion candidates list does not violate the relevant statutes that prescribe the qualification of the promotion candidates, but if it is alleged and proved that the candidate was based on reasonable grounds under social norms, it shall not be deemed unreasonable (see Supreme Court Decision 2017Du34162, Mar. 29, 2018).

2) Specific determination

Examining the following circumstances revealed in light of the purport of the entire argument in the above facts, it is difficult to view that the instant disposition was excessively harsh to the extent that it considerably lacks validity under social norms, thereby deviating from or abusing the scope of discretion. Accordingly, the Plaintiff’s assertion on this part is without merit.

A) The correctional officer is required to promote the correction, edification and sound rehabilitation of prisoners, and the level of morality, ethical and compliance consciousness is higher than that of ordinary public officials in that it engages in an institution in charge of treatment and rights of prisoners and the operation of correctional institutions.

B) The Defendant has the discretionary power to decide the person to be promoted by exercising reasonable discretionary power in the promotion for continuous service of correctional officials. The instant disposition was based on the personnel management rules of the former correctional officials, which are discretionary rules, and the former rules on personnel management of the correctional officials, which are reasonable and reasonable.

C) The Defendant has been applying the disposition of an unexplosive warning to the Defendant for a considerable period of time on the basis of disadvantage in the promotion of continuous service, and there is a need to apply a uniform standard of examination to the public officials after continuous service due to the nature of continuous service promotion appointing 30%

D) The public interest intended to achieve the instant disposition is to establish strict public service discipline by strictly examining the promotion of public officials with the record of disciplinary action. On the other hand, the disadvantage suffered by the Plaintiff during the instant disposition is excluded from the relevant rank promotion examination once, and the continuous service promotion is delayed. Therefore, it is difficult to view that the public interest is seriously infringed on compared to the public interest.

E. Sub-decision

Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.