A disciplinary decision shall be made without the attendance or statement of a person to be disciplined on the basis of a written waiver of attendance prepared by force of the person to be disciplined.

According to the provisions of the Rules of the Court Officials, in principle, a disciplinary decision may not be made without the attendance and statement of a person to be disciplined, and exceptionally, a disciplinary decision may be made without the attendance of a person to be disciplined only when a person to be disciplined fails to attend two or more times after being notified of his/her attendance. Therefore, a disciplinary decision made without the attendance or statement of the plaintiff on the ground of a written waiver of attendance prepared by an investigator before receiving a request for attendance

Articles 89, and 90 of the Court Rules of Public Officials

Supreme Court Decision 77Nu96 delivered on June 28, 1977

Maximum number of life

Chief Justice

1. The defendant's removal against the plaintiff on March 3, 1976 shall be revoked.

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

The same shall apply to the order.

1. The defendant's dismissal of the plaintiff on March 3, 1976 by the resolution of the Plaintiff Disciplinary Committee of the Law, etc., and the reason for the removal of the plaintiff is the Seoul Criminal District Court, that is, the plaintiff who was a participating assistant as a result of the Seoul Criminal Court from October 20, 1975 to December 31, 1975, and the defendant received 2,000 won per each case provided as a solicitation that the number of non-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-ap

2. The plaintiff's attorney did not commit the same misconduct as the above disciplinary ground. Second, the disciplinary action is premised on the invalid disciplinary decision without the plaintiff's attendance at the plaintiff's disciplinary committee, and the plaintiff's dismissal of the plaintiff who has faithfully worked for about minor misconduct such as the above disciplinary ground is deviating from the scope of discretion. Thus, the disciplinary action in this case is asserted to be revoked because it goes beyond the scope of discretion. Thus, first, according to Article 89 of the Court Officials Rules, the chairperson of the disciplinary committee must request the person to be disciplined to appear at the date and place of the disciplinary deliberation, and if the person to be disciplined fails to appear at the date of the deliberation after receiving two or more requests for attendance, the disciplinary committee shall provide that the person to be disciplined shall be allowed to make a resolution without his/her attendance, and according to Article 90 (2) of the above Rules, the disciplinary committee shall provide sufficient opportunity to make statements to the person to be disciplined, and the purport of the above provision is that the person to be disciplined may make a statement without his/her attendance and oral statement.

However, in full view of Gap evidence Nos. 1 and 2 (written disciplinary decision), evidence Nos. 2-1, 3-1, 2 (written request for a review and decision) and testimony on Kim Jong-ro without dispute, the chairman of the Seoul District Criminal Justice Disciplinary Committee requested the plaintiff to make a disciplinary decision on the plaintiff by designating 3 p.m. on the same day as the disciplinary review date and sending the plaintiff a notice of attendance on the same day to the plaintiff on the same day before the plaintiff is requested to attend the Special Investigation Headquarters of Public Security and Security as the disciplinary review date, and submitting a written report of refusal of attendance prepared by the person in charge of investigation to the plaintiff on the same day without the plaintiff's attendance or statement to the investigation agency on the ground of this, it can be acknowledged that the decision on the disciplinary decision on the plaintiff was made without any other counter-proof evidence. Thus, the above disciplinary decision procedure without the plaintiff's attendance and statement to the plaintiff who is to be disciplined is unlawful under the premise that it violates Articles 89 and 90 of the above court rules (see Supreme Court Decision 797Nu679797.7.

On the other hand, the defendant defense that the above disciplinary resolution procedure is lawful since the plaintiff's refusal of attendance was not required more than twice. However, the provisions of Articles 89 and 90 of the above Rules of Court Officials are not voluntary regulations or decoration regulations, but compulsory regulations for the disciplinary committee (refer to Supreme Court Decision 63Nu144 delivered on November 7, 1963). In addition, there is no exception provision that the refusal of attendance by the person subject to disciplinary action can substitute two or more requests for attendance as a waiver of attendance by the court official rules, and as seen in the above facts of recognition, the plaintiff's refusal of attendance was submitted to another institution that is not the disciplinary committee prior to the designation of a request for disciplinary decision and the date for deliberation on disciplinary action. Thus, the plaintiff's refusal of attendance was submitted to the institution that is not the disciplinary committee, and thus,

3. If so, the disciplinary action against the plaintiff is unlawful without having to determine the remaining arguments, and thus, the plaintiff's claim of this case shall be accepted as without merit, and the costs of lawsuit shall be assessed against the losing defendant. It is so decided as per Disposition.

Judges Shin Jong-chul (Presiding Judge)