(영문) 부산지방법원 2011.11.3.선고 2010구합2235 판결

1. The Defendant’s dismissal on December 21, 2009 against Plaintiff Seo-○ is revoked. The Defendant’s dismissal on December 21, 2009 against Plaintiff Seo-○ is all dismissed.

3. Of the costs of the lawsuit, the part arising between the Plaintiff SOO and the Defendant is borne by the Defendant, and the part arising between the Plaintiff South ○, Gangwon ○ and the Defendant is borne by the Plaintiff South ○ and Gangwon ○.

Purport of claim

Paragraph (1) and Paragraph (1) of this Article and the Defendant’s disposition of suspension of one month against the Plaintiff South ○ and Gangwon ○ on December 21, 2009 shall be revoked (the Plaintiff South ○○ and Gangwon ○ sought revocation of the disposition of suspension of one month from April 21, 2010, respectively from the application for amendment of the purport of the claim, but the above date was merely the date when the Defendant notified the Defendant of the decision of change of the Teachers’ Appeal Committee on the original disposition as stated below, and thus, the above Plaintiffs’ claim for revocation of the original disposition, and entered the same as December 21, 2009).

Reasons

1. Details of the disposition;

A. Status and status of the plaintiffs

1) On March 24, 1985, the plaintiff Seo-○ was appointed as the teacher of the Busannam Elementary School, and worked as the teacher of the Busan High School from March 1, 2009 to Busan High School from March 1, 2009, and was on full-time leave from March 1, 2009, the Korean Workers' Union (hereinafter referred to as the "Seoul High School") was Busan ○○○.

2) On November 23, 1999, the plaintiff Nam-gu was appointed as Busan**** commercial high school teacher from March 1, 2008 and worked as the teacher of Busan High School from March 1, 2008, and was on full-time leave from March 1, 2009.

3) On September 1, 1989, the plaintiff Gangseo-gu was appointed as the teacher of Busan High School and worked as the teacher of Busan High School from March 1, 2007 to Busan High School from March 1, 2007, and was on full-time leave from March 1, 2009, and was on full-time leave from March 1, 200.

B. On December 21, 2009, the defendant issued a disciplinary measure against the plaintiff 00 on the ground that "the plaintiff violated Articles 56, 57, 63, and 66 of the State Public Officials Act and Article 3 (Prohibition of Political Activities) of the Act on the Establishment and Operation of Teachers' Unions (hereinafter referred to as "the Act on the Establishment and Operation of Teachers' Unions")," on the ground that "the plaintiff violated Article 56 (Good Faith's Duty of Good Faith), Article 57 (Duty of Good Faith), Article 63 (Duty of Maintenance), and Article 3 (Prohibition of Political Activities) of the Act on the Establishment and Operation of Teachers' Unions," and that this constitutes grounds for disciplinary action under Article 78 (1) 1 of the State Public Officials Act."

Grounds for Disciplinary Action

Plaintiff ○○○○ was the head of the Jeonyang-gu Busan District Office ○○○, the head of the Plaintiff Nam-○, and the head of the above branch office ○○○○○, and the head of the Plaintiff Gangnam-gu, the head of the above branch office ○○○, and the head of the Busan District Office of Education 4 times, and the teachers did not sign and participate in the assembly and demonstration and was made public notice

On June 18, 2009, Plaintiff OO and other ○○ (hereinafter “the Assembly”) participated in the First Declaration and led and led by the former teachers to participate in the Assembly and Demonstration and led them to the Busan District Prosecutors’ Office. In addition, the Assembly and Demonstration led and urged the latter to participate in the Assembly and Demonstration, and led and encourage the latter to participate in the Assembly and Demonstration, such as creating a public door that the teachers would participate in the Assembly and Demonstration and sending it to the respective departments of the former.

② On June 18, 2009, Plaintiff ○○ participated in the First Declaration of Assembly and Demonstration, which was announced by the Jeon school assistant. The Second Declaration was accused of the Busan District Prosecutors’ Office due to the act that the teachers urged and attempted to participate on the website of the Jeon school assistant Busan District Prosecutors’ Office.

C. On January 13, 2011, the Plaintiffs were dissatisfied therewith, filed an appeal review with the teachers’ appeals review committee. On April 5, 2010, the teachers’ appeals review committee dismissed the Plaintiff’s claim with respect to Plaintiff Seo-○○○ on April 5, 2010, however, the Plaintiff left Q. Gangwon-do decided to change the disciplinary action for two months of suspension from office to one month (hereinafter “the disciplinary action against Plaintiff Nam-○ and Gangwon-do○ in each of the instant dispositions refers to one month of suspension from office changed by the aforementioned series of procedures). On April 21, 2010, the Defendant notified the Plaintiff Nam-○ and Gangwon-do○ by changing it to one month of suspension from office.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, Eul evidence Nos. 1, 7, and 8 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) Absence of grounds for disciplinary action

A) The absence of a ground for violation of Article 66(1) of the State Public Officials Act (Prohibition of Collective Action)

Article 66(1) of the State Public Officials Act refers to a collective act that may affect the duty of good faith for a purpose contrary to the public interest. However, given that the contents of the above assembly and demonstration do not contain any content supporting or opposing a specific political party, the participation in the assembly and demonstration cannot be deemed as going against the public interest. The above assembly and demonstration was conducted on Sundays, and the freedom of expression should be protected as constitutional right, and there is only one person subject to punishment by the assembly and demonstration. In light of the above, it is difficult to deem that the plaintiffs neglected the duty of good faith by participating in the assembly and demonstration and thus neglecting the duty of good faith of public officials, such as infringing students’ right to learn by participating in the assembly and demonstration.

Therefore, it cannot be deemed that the plaintiffs participated in the above assembly and demonstration and committed collective acts for purposes other than official duties under Article 66(1) of the State Public Officials Act.

B) The absence of any ground for violating Articles 56 (Duty of Good Faith), 57 (Duty of Reinstatement), and 63 (Duty of Integrity) of the State Public Officials Act

The Assembly and Demonstration Act does not violate the law as seen earlier, and since the above assembly and Demonstration Act does not have any relation with the teacher’s duty, the principal’s instruction to refrain from participating in the above assembly and Demonstration does not have a duty to obey an official order. In addition, the participation in the above assembly and Demonstration does not violate the teacher’s duty or undermine the teacher’s dignity.

C) Non-existence of grounds for violation of Article 3 of the National Public Officials Service Regulations

In other words, Article 3 (2) of the State Public Officials Service Regulations (Establishment of Work Hours) provides that "public officials shall not oppose the State's policies or interfere with the establishment and execution of the State's policies by means of group, joint signature or the name of organization". However, the above provision was newly established on November 30, 209, which was after the plaintiffs' assembly and demonstration, and thus disciplinary action against the plaintiffs pursuant to the above provision is in violation of the principle of prohibition of retroactive punishment.

(ii) abuse of discretion or deviation from limits of discretion;

Even if there were grounds for disciplinary action against the Plaintiffs, each of the instant dispositions was abused or abused by violating the principle of proportionality or the principle of equality, in full view of the background leading up to the Plaintiffs to the foregoing assembly and demonstration, the degree of violation of the laws and regulations, and the public service of serving as a long-term teacher.

B. Relevant statutes

The entries in the attached statutes are as follows.

1. The First Declarations

A) On June 9, 2009, at the meeting of the 360th Central Execution Committee, which was held at the office of the 360th Central Execution Committee at the Jeon school's headquarters, decided to criticize the present government's policies and to participate in the assembly of June with the contents of demanding the reform of state affairs. b) The plaintiffs led the teachers to sign the assembly for the assembly from June 10, 2009 to June 17, 2009. In particular, the plaintiffs 200,00 were urged to participate in the assembly of state affairs through the 360th Central Execution Committee's homepage, and the plaintiffs participated directly in the assembly of state affairs.

C) On June 17, 2009, the Ministry of Education, Science and Technology issued a public notice to the respective City/Do Offices of Education demanding the restriction on the participation in the promotion and signature campaign. Accordingly, the Defendant sent to the schools and regional Offices of Education the public notice called “the teachers’ office of education” and “the teachers’ office of education related to the signing campaign and the signing campaign.”

D) On June 18, 2009, the chairman of the Jeon school division, ○○ et al. announced the first assembly report from around 11:15 to around 11:25 of the same day before the Seoul Jung-gu 0000, which was located 0000, and all the Plaintiffs participated in the said site.

The key contents of the First Declaration were referring to the investigation of candlelights, the investigation of the PDbook, the ‘PDbook fire case', the ‘non-regular fire case', the ‘non-regular inter-Korean relations color, etc., and the fundamental human rights have been seriously damaged due to the abuse of governmental power by the present government, resulting in a crisis in democracy. This was criticized to the effect that this would result from the current government's operation of the state registry, which requires the President's resignation, government reform, government defense, press assembly, human rights and conscience thoroughly guaranteed, care for the socially weak, suspension of acts by force on media law, removal of the suspicion of large-scale canal reform, and suspension of competition-related school policy.

2. Second Declarations:

A) On June 26, 2009, the Ministry of Education, Science and Technology held a meeting of a City/Do superintendent of education on June 26, 2009 to inform the prosecution of the 88 executive officers including the above ○○, and requested the City/Do office of education to take measures such as heavy disciplinary action. On the contrary, the Ministry of Education, Science and Technology held a temporary central executive committee on June 28, 2009 and decided to conduct the second teachers’ assembly.

B) On July 1, 2009, the Jeon school assistant branch, including the plaintiffs, opened and operated a registered coiner to participate in the Second Declaration of the Assembly for the purpose of promoting the Second Declaration on the homepage of Jeon school support Busan District Office, and led teachers to participate, and sent a list of teachers participating in the Jeon school support headquarters on July 2009.

C) On July 19, 2009, from around 14:00 to 14:20 the same day, the chairman of the Jeon school Cho Jong-chul et al. read a press conference containing the following contents: “At ○○○○○○○ located in Jung-gu Seoul, Jung-gu, Seoul, the government’s influence against martial law was unable to interfere with the conscience and will of practice of teachers who open a democracy.” “I would immediately comply with the pressure of unfair public authority to protect the right against the belief of freedom of conscience and expression as an educator who teach democracy as an educator, and to protect the right against the belief of freedom of conscience and expression,” and “ Jeon school will continue to make a strong effort and accusation to confirm the legitimacy of the assembly, and to withdraw the discipline.”

D) On July 19, 2009, the plaintiffs participated in the Second Declaration from 16:0 to 17:00 on July 19, 2009, and expressed the above contents by either putting out relief, such as “the assembly or public official’s admonishment”, “the assembly or public official’s admonishment", “the assembly or public official’s admonment of the assembly or demonstration,” “the assembly or public official’s admonishment of the assembly or demonstration,” “the assembly or public official’s admonment of the assembly or demonstration,” “the assembly or public official’s admonment of the assembly or demonstration,” “the assembly or public official’s non-permanent dismissal,” or “the assembly or demonstration of non-permanent dismissal,” etc.

3) The plaintiffs in the criminal case against the plaintiffs were indicted for violating the State Public Officials Act on the grounds that they engaged in collective action for activities other than official duties by participating in the instant assembly and the Pacific Games. On May 3, 2010, the Busan District Court sentenced a fine of KRW 1,00,000 for the plaintiffs, and a fine of KRW 50,000 for the plaintiffs, 200,000 for the plaintiffs, and a fine of KRW 5,000 for the plaintiffs, 209, 4546, 6729, 2009, 8213, 209, hereinafter referred to as the "the judgment of this case"). The above case is currently pending in the appellate court as Busan District Court 2010No1648.

[Ground of recognition] Facts without dispute, significant facts to party members, Gap evidence Nos. 4, Eul evidence Nos. 2 through 7, the purport of the whole pleadings

D. Determination

1) As to the existence of grounds for disciplinary action

A) As to whether Article 66(1) of the State Public Officials Act (Prohibition of Collective Action) is violated

(1) The main sentence of Article 66(1) of the State Public Officials Act provides that "no public official shall engage in any collective activity for any work other than public duties, such as labor campaign or others." The term "collective activity for any work other than public duties" in this context means any collective activity conducted by public officials for any work other than public duties, not all the collective activities conducted by public officials, but means media, publishing, assembly and association freedom, the constitutional principles, the purport of the State Public Officials Act, the State Public Officials Act's duty to maintain good faith and duty to maintain good faith under the State Public Officials Act, etc. shall be interpreted as "collective activity that has an impact on the neglect of duty to maintain good faith for any purpose contrary to public interest" (see, e.g., Supreme Court Decisions 2003Do2960, Apr. 15, 2005; 2004Do5035, Oct. 15, 2004).

(2) We examine the instant case in accordance with such legal doctrine.

In full view of the facts as seen earlier, the First Declaration contains some educational policies (such as the expansion of educational welfare, the democratization of school operation, student human rights, etc.). However, government policies such as the amendment of the Media Act and the promotion of the fourth lecture development project, the investigation of candlelights and persons concerned, the occurrence of plelight fire-fighting and the election of the former president before the present labor force, and the unilateral opinion on specific policies or cases where various political interests are sharply conflicting. As the first Declaration was not in a non- democratic military regime, the first Declaration’s assertion that it is the true democratic resistance spirit against it constitutes a liquor, and the second Declaration’s second Declaration’s assertion that it was unconstitutional to impair the basic order of democracy at the time of military Germany, and that the first Declaration’s improvement of the first Declaration’s disciplinary measures and accusation policies are unconstitutional, and that the first Declaration’s contents or opposition to the second Declaration’s political policy were justifiable or unlawful.

In light of the above circumstances, the Assembly Nos. 1 and 2’s act criticizes the government’s policy against the present government’s policy, and furthermore, an expression of political intent to exercise influence in the policy-making process by pressureing the government in connection with the political forces of political parties opposing the policy, and constitutes a collective act that may affect the public official’s political neutrality at the same time as a collective political activity, which infringes upon the public official’s political neutrality.

In addition, considering the fact that it is highly likely to increase social conflicts and confusion and that it is difficult to deny that the public confidence of teachers in political neutrality of teachers and that there was a significant negative impact on the trust of students and parents in relation to the political neutrality of teachers, in particular, the act of expressing political opinions to exercise influence in the process of decision-making of government policies in connection with a specific political party or political force as seen above is also included in the "political activity" prohibited by Article 3 of the Teachers' Labor Relations Adjustment Act.

Therefore, the plaintiffs' act, which was urged and led not only to participate in the assembly and demonstration but also to encourage other teachers to participate in the assembly and demonstration, constitutes a collective act for the purpose of violating the public interest, and thus, it constitutes a violation of the political neutrality of education. Therefore, the above argument that the plaintiffs did not violate Article 66 (1) of the State Public Officials

B) As to whether Article 56 (Duty of Good Faith), Article 57 (Duty of Reinstatement), and Article 63 (Duty of Integrity) of the State Public Officials Act are violated

(1) Whether the duty of good faith is violated

Article 56 of the State Public Officials Act provides that "All public officials shall observe Acts and subordinate statutes and perform their duties faithfully." As seen earlier, the plaintiffs' participation in the Assembly and Demonstration Act and Article 66 (1) of the State Public Officials Act violated Article 3 of the Teachers' Unions Act and Article 66 (1) of the State Public Officials Act. As long as they violated the above Acts and subordinate statutes, the plaintiffs cannot be deemed to have faithfully performed their duties. Thus, this is contrary to Article

(2) Whether the duty of obey is violated

Article 57 of the State Public Officials Act provides, “A public official shall obey an official order of his superior in performing his duties.” As seen earlier, the plaintiffs received an order from the defendant who is his superior officer to refrain from participating in the assembly or demonstration. After the First Declaration, the Ministry of Education, Science and Technology stated the accusation and severe disciplinary measure against the former officer, but the plaintiffs took part in the assembly or demonstration, disregarding the above official order and government policy, and participated in the above assembly or demonstration. Thus, the plaintiffs' act constitutes a violation of the above provision.

It is clear that it is.

(3) Whether the duty to maintain dignity has been violated

Article 63 of the State Public Officials Act provides that "no public official shall commit any act detrimental to his/her dignity, regardless of whether it is for his/her duties," and such duty to maintain dignity is widely entrusted by the people to the public and serves for the whole of the people in light of the status of public officials.

Since injury to dignity of a public official is likely to undermine the people's trust as well as his/her own duties, such act requires a public official to lead a sound life in his/her private part as well as his/her duties. Here, the "decency" refers to a person who is a sovereign citizen and carries out his/her duties by taking charge of his/her duties. Thus, the plaintiffs' act of political expression to exercise influence in the decision-making process of government by pressure with a specific political party or political force constitutes a violation of the duty to maintain the dignity of public officials.

(4) Therefore, the plaintiffs' assertion that they did not violate the above obligations is without merit.

C) As to the violation of Article 3 of the National Public Officials Service Regulations

Although the plaintiffs asserted that they were subject to disciplinary action based on Article 3 (2) of the State Public Officials Service Regulations, the plaintiffs' assertion starting from the premise that the defendant's disciplinary action against the plaintiffs is based on the above provision is without merit, as seen above, since the defendant did not have sufficient grounds for the above provision.

D) Sub-committee

Therefore, the plaintiffs' participation or leading in the First and Second Declarations violates Article 56, 57, 63, and 66 of the State Public Officials Act, and Article 3 of the Teachers' Unions Act, which constitutes grounds for disciplinary action under Article 78 (1) 1 of the State Public Officials Act. Each of the dispositions in this case is a legitimate disposition where grounds for disciplinary action exist.

2) Regarding the adequacy of a disciplinary decision

A) Whether a disciplinary measure should be taken 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 the disciplinary measure as an exercise of discretionary authority has considerably lost validity under the generally accepted social norms, it can be deemed unlawful. If a disciplinary measure against a public official has considerably lost validity under the generally accepted social norms, it should be determined that the contents of the disciplinary measure can be objectively and clearly deemed unreasonable in light of 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 even if the exercise of the authority to take the disciplinary measure is left at the discretion of the person having authority to take the disciplinary measure, it violates the public interest principle that should exercise the authority to take the disciplinary measure for public interest, or if the exercise of the authority to take the disciplinary measure goes against the principle of proportionality or the principle of fair and equitable application of the same degree without reasonable grounds, and thus, it is unlawful as a disciplinary measure beyond the bounds of discretionary authority.

B) We examine the instant case in accordance with such legal doctrine.

(1) According to the overall purport of the Plaintiff’s evidence No. 9 and the argument, the Plaintiff Seo-○○ may recognize the fact of winning the Busan Metropolitan Office of Education’s official commendation May 15, 200, the Busan District Office of Education’s Office of Education on December 26, 2003, and the Ministry of Science and Technology’s official commendation on April 21, 2005. The following circumstances can be revealed based on the aforementioned evidence and facts. In other words, if a state public official is dismissed by disciplinary action, not only the public official’s status is deprived but also the public official’s disadvantage may not be appointed unless three years have passed since the public official was dismissed under Article 33 of the State Public Officials Act. ② Each of the above reports was unconstitutional or anti-social. ③ There was no injury to students or third parties in the process of promoting or announcing the Assembly Declaration, ④ It appears that the Plaintiff’s act was unlawful in addition to the Plaintiff’s opinion that the public official deprived of his freedom of expression as a citizen, and thus, it seems unlawful within the scope of discretionary authority.

(2) According to the evidence and facts of recognition as seen earlier, the following circumstances can be revealed: (i) the above plaintiffs played a leading role in the promotion of the First and Second Declarations; (ii) the acts of the above plaintiffs are not likely to have an adverse impact on the public official’s job fairness and the trust of the people; and (iii) the disciplinary action against the above plaintiffs in two months of suspension from office against the above plaintiffs was mitigated to one month from office at the Appeal Committee for Teachers; (iv) in light of the characteristics and nature of the duties performed by the above plaintiffs, and the contents and nature of the facts causing the disciplinary action against the above plaintiffs, and the purpose of the disciplinary action to be achieved by the disciplinary action, it cannot be deemed that the disciplinary action against the plaintiffs South and North 00, and the above plaintiffs was objectively and objectively unfair, and thus, is objectively unreasonable in light of social norms, and thus, it is not likely

3. Conclusion

Therefore, the plaintiff's claim is justified, and the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.