(영문) 서울행정법원 2011.6.10. 선고 2010구합46388 판결

1. The Defendant’s disposition of suspending qualification against the Plaintiff on December 15, 2010 is revoked for one year. 2. The costs of lawsuit are assessed against the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On November 7, 2006, the Plaintiff, a person who works as a certified labor affairs consultant of the branch office of the labor law firm C in Seo-gu, Seoan-gu, Seoan-gu, Seoan-gu, and was paid KRW 7,200,000 under the Employment Insurance Act to the Plaintiff’s new documents prepared and reported to the Plaintiff’s office on November 7, 2006, the unemployed who was registered with the employment security office, etc.

B. On December 15, 2010, the Defendant issued a new employment promotion subsidy under the Employment Insurance Act as if the Plaintiff was newly employed on November 7, 2006, after employing D as an employee on July 2006, and allowing the Plaintiff to register job seeking fraudulently. Such act was in violation of the duty to maintain dignity under Article 12(1)4 of the Certified Public Labor Attorney Act, on the ground that the Plaintiff violated the duty to maintain dignity under Article 12(1) of the Certified Public Labor Attorney Act (hereinafter “instant disposition”). In accordance with Article 20(1)4 of the Certified Public Labor Attorney Act, the Defendant was subject to one year suspension of qualification for the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] A without dispute, entry of Gap evidence 2, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Absence of grounds for disciplinary action

D, on November 7, 2006, upon which the Plaintiff entered into a labor contract on a regular basis on and around July 2006, came to move to the Plaintiff’s workplace for the purpose of more stable employment by acquiring practical knowledge about personnel, labor, and salary affairs. The Plaintiff paid KRW 8,50,00 per month on the condition that D’s office’s work work is performed in consideration of D’s type of work and credit conditions. The period from July 2006, when D’s vocational training period, to November 7, 206, from July 2006, to November 7, 2006, the Plaintiff did not receive a new employment promotion subsidy under the Employment Insurance Act, and the obligation to maintain dignity under Article 12(1) of the Certified Labor Affairs Consultant Act is premised on the performance of the Plaintiff’s duties as a certified labor affairs consultant. The Plaintiff’s receipt of a new employment promotion subsidy is conducted in the course of performing the Plaintiff’s business, and does not constitute a violation of the above duty to maintain dignity.

(ii) the deviation and abuse of discretionary power;

In light of all circumstances, the Plaintiff’s receipt of the new employment promotion subsidy was unrelated to the performance of duties as a certified labor affairs consultant; the Plaintiff was already subject to a disposition such as a return order and additional collection of new employment promotion subsidy, a disposition of restriction on payment of various incentives, etc.; the Plaintiff, including the Plaintiff, was subject to a civil petition filed by the Board of Audit and Inspection; and the Plaintiff’s instant disposition against the Plaintiff was too excessive compared to the disciplinary action taken against the pertinent public official and the newly established labor affairs consultant, compared to the disciplinary action taken against the pertinent public official and the newly established labor affairs consultant. As such, the instant disposition was excessively harsh and thus deviates from or abused the scope of the discretion of disciplinary action.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) According to the purport of the Plaintiff’s statement and pleading as to the existence of grounds for disciplinary action Nos. 1 through 7, 9 through 12, the Plaintiff was found to have received new employment promotion incentives from 0.1 to 200,000 won on Nov. 7, 2006, and applied for new employment promotion incentives to 60,000 won on Nov. 28, 2006 from 0.1 to 70,000 won for new employment promotion incentives from 0.20,000 won on Feb. 12, 2007 to 20,0000 won for new employment promotion incentives from 0.20,000 won on Feb. 16, 2007, the Plaintiff was found to have received new employment promotion incentives from 0,200,000 won on Feb. 16, 200 to 0,000 won on the 20,000 won.

In addition, Article 12 (1) of the Certified Tax Accountant Act provides that a certified tax accountant shall perform his/her duties in good faith and maintain dignity, while Article 12 (1) of the Certified Tax Accountant Act provides that a certified tax accountant shall maintain his/her dignity and perform his/her duties in good faith. In light of these provisions, it is reasonable to see that the obligation to maintain dignity under the Certified Tax Consultant Act is related to the performance of his/her duties as a certified tax accountant.

Therefore, the above act of the plaintiff is an act that lowers the dignity of a certified labor affairs consultant, who is a professional qualified worker in labor-related Acts and subordinate statutes, and constitutes grounds for disciplinary action under Article 20 (1) 4 of the Certified Labor

2) Whether the discretion is deviates or abused

Although it is recognized that the plaintiff violated the duty to maintain dignity as above, the following circumstances are acknowledged by Gap evidence Nos. 10 through 14, Eul evidence No. 8, and the purport of the entire argument, i.e., the plaintiff did not employ a new employee, but employed D employee and received some of the benefits from the Ministry of Employment and Labor. This is regardless of job performance as a certified public labor attorney in the course of operating one's workplace. ② The plaintiff did not have any record of being subject to disciplinary action before the case, and paid faithfully the amount of the above order for return and additional collection for the plaintiff on the ground that the plaintiff did not have any record of being subject to disciplinary action as a certified public labor attorney, and ③ The defendant did not separately provide the criteria for disciplinary action based on the type and degree of misconduct committed by a certified public labor attorney, and even after 200, the defendant did not establish the criteria for disciplinary action based on the disciplinary status (Evidence No. 8) of a certified public labor attorney, which is similar to the case of this case, but did not change the disciplinary action to a new job performance contract for a non-business assistant (the defendant did not have reported a new work for a new work.

④ Meanwhile, in a case where a certified public labor attorney who is entrusted with the autonomous improvement of working conditions and entrusted with the inspection of 31 places of business requests a labor inspector belonging to the Regional Employment and Labor Agency to participate in a workplace guidance and inspection, and the labor inspector replaced the above certified public labor attorney with the above certified public labor attorney at the inspection place and supervised regular labor affairs, the defendant recognized that the above certified public labor attorney violated his duty to maintain the dignity of the certified public labor attorney and was subject to the disciplinary action for two months of suspension. The above case is not only the case where the pertinent certified public labor attorney has breached his duty to maintain the dignity of the certified public labor attorney, but also the case is found to be inconsistent with equity when compared with the disciplinary action against the plaintiff by 11 certified public labor attorney in the astronomical area including the plaintiff as the certified public labor attorney at the Board of Audit and Inspection. In full view of other circumstances and degree of the plaintiff's misconduct, it is too excessive that the disadvantage suffered by the plaintiff compared to the public interest to be achieved due to the disposition in this case. The defendant can achieve the purpose of the short period of qualification suspension or other types.

3) Therefore, the Defendant’s disposition of this case is unlawful.

3. Conclusion

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