(영문) 부산고등법원 2013.8.14. 선고 2013누1065 판결

On April 30, 2012, the Defendant revoked or mitigated a reprimand disposition against the Plaintiff (hereinafter referred to as “instant disposition”) (the Plaintiff claimed revocation of the instant disposition, and subsequently selected the claim for mitigation of the instant disposition at the trial).

2. Purport of appeal

A judgment of the first instance shall be revoked. A judgment such as the purport of the claim shall be sought.

Reasons

1. Details of the disposition;

The court's explanation on this part is the same as Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, since the reasoning of the judgment of the court of first instance is the same as Article 420.

2. The plaintiff's assertion

The instant disposition should be revoked or mitigated for the following reasons.

A. Article 4 of the Enforcement Rule of the Public Officials Disciplinary Decree (amended by Ordinance of the Ministry of Public Administration and Security No. 253, Nov. 1, 2011; hereinafter referred to as the "former Enforcement Rule") which was in force on August 23, 2010 of the Plaintiff’s ground for the instant disposition (hereinafter referred to as “driving") provides that disciplinary action shall be mitigated in cases where a person subject to disciplinary action was selected as an exemplary public official pursuant to the former Enforcement Rule of the Public Officials Disciplinary Decree. Meanwhile, the proviso of Article 4 of the Enforcement Rule of the Public Officials Disciplinary Decree (amended by Ordinance of the Ministry of Public Administration and Security No. 253, Nov. 1, 2011; hereinafter referred to as the “Enforcement Rule”) at the time of the instant disposition (amended by Ordinance of the Ministry of Public Officials and Security No. 253, Nov. 1, 2011; hereinafter referred to as the “Enforcement Rule”) has been amended more unfavorable than the time of the instant drinking operation.

Therefore, the instant disposition is unlawful.

B. The instant disposition is deemed unlawful since it is excessively harsh to the Plaintiff in light of the Plaintiff’s merits selected as exemplary public officials and the developments leading up to the instant drunk driving, i.e., the Plaintiff’s labing of a substitute engineer after drinking his lab and driving a volume of 5 meters so that the proxy engineer can easily find a car, and thus, there was no intention of drinking driving. Therefore, it is unlawful by abusing and abusing discretionary authority.

As for the above claim under the current Administrative Litigation Act, a lawsuit seeking a performance judgment ordering an administrative agency to take a certain administrative disposition or a lawsuit seeking a formation judgment ordering an administrative agency to directly conduct an administrative disposition having the same effect as the administrative agency rendered a certain administrative disposition is not allowed. Therefore, the part concerning the claim for mitigation of the disposition in this case is unlawful.

4. Part on the claim to revoke the disposition of this case

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. Determination as to the legitimacy of the instant disposition

1) First of all, we examine the argument that the disciplinary action against the plaintiff was not mitigated in accordance with Article 4 of the former Enforcement Rule at the time of the instant disposition. According to Article 4(1) of the former Enforcement Rule which was in force at the time of driving under the influence of alcohol, the Disciplinary Committee received official commendation (limited to official award and proposal award) from the Prime Minister or higher (limited to official award and proposal award) in accordance with the Government Commendation Rules, and public officials of class 6 or below at the time of the act of misconduct, etc. who received official commendation from the head of central administrative agency (including the head of agency equivalent to loan award) or higher, and public officials selected as exemplary public officials in accordance with the model public officials' regulations, according

Article 4(1) of the amended Enforcement Rule of November 1, 201, which was after the date of the pertinent drunk driving, provides that disciplinary action against a drunk driving cannot be mitigated in the event of a disciplinary action against a drunk driving. The instant disposition is a disposition imposing certain sanctions on the Plaintiff’s public official status. As such, the pertinent provision at the time of the instant disposition was amended disadvantageous to the Plaintiff, and there was no special provision as to which the Enforcement Rule should be applied when mitigation of a disciplinary action against a public official who conducted a drunk driving prior to the enforcement of the amended Enforcement Rule. Therefore, the instant disposition should be based on the former Enforcement Rule, which is the relevant provision at the time of the instant drunk driving.

Meanwhile, according to the evidence Nos. 3 and 2 evidence Nos. 2, it is recognized that the plaintiff received the exemplary public official commendation from the Prime Minister on December 31, 2008, the publication of labor administration oil from the Minister of Labor on December 31, 2003, the publication of labor administration oil, 12, 30, and the publication of the promotion of labor-management cooperation.

However, according to Article 4 of the former Enforcement Rule, since the public figure selected as a public official and an exemplary public official are grounds for voluntary mitigation of disciplinary action, the disciplinary action against drinking driving of this case does not necessarily have to be mitigated for this reason, even if the plaintiff rendered the aforementioned meritorious service. Moreover, according to the rules on service and disciplinary action of state public officials who were in force at the time of drinking driving of this case, it is stipulated that "the disciplinary mitigation under Article 4 of the Enforcement Rule of the Public Officials Disciplinary Decree shall be avoided for a person who requests disciplinary action due to drinking driving", and according to the evidence No. 1, the defendant's ordinary disciplinary committee seems to have made a disciplinary decision in consideration of the above public service of the plaintiff at the time of disciplinary action on drinking driving

Therefore, the plaintiff's assertion that the disposition of this case erroneously applied the applicable law is without merit.

2) Next, this case’s disposition is examined as to whether it deviates from or abused discretionary power.

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure should be taken at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure is unlawful only when it is deemed that the person having authority to take the disciplinary measure has abused the discretion held by the person having authority to take the disciplinary measure because the disciplinary measure as the exercise of authority has considerably lost validity under the social norms. If a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by taking into account 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 a disciplinary measure, etc., and the contents of the disciplinary measure

The facts that the plaintiff received from the Prime Minister a commendation of exemplary public officials, a publication of the public announcement of labor administration, and a publication of the promotion of labor-management cooperation from the Minister of Labor are as set forth in the above 1.

However, the following circumstances, which are acknowledged by comprehensively considering the facts recognized under the relevant statutes and the overall purport of arguments and the facts admitted under paragraph (1) above, namely, ① Article 3 of the Regulations on the Handling of Cheating by Public Officials, which was in force at the time of driving under the influence of alcohol (Presidential Directive No. 247, Apr. 22, 2009; hereinafter the same shall apply) and attached Table 3, are public officials subject to the disposition of suspension of driver’s license due to

The criteria for disciplinary action on drinking driving under Article 321 of the Regulations on the Service and Discipline of State Public Officials (Ordinance of the Ministry of Public Administration and Security No. 321 of July 27, 2010) also provides that "the criteria for disciplinary action on drinking driving under Article 4 (1) of the Enforcement Rule of the Public Officials Disciplinary Decree shall not be applied to a person who has been requested for a disciplinary action due to drinking under the same contents as the request for cooperation of the competent disciplinary committee." ② The plaintiff was under the suspension of driver's license on August 18, 2005, and was under the suspension of driving under the same case, and was under the suspension of driver's license and the punishment of 70,000 won by driving under the same case. ③ Drinking driving under the influence of alcohol cannot be deemed to have a possibility of criticism by itself taking into account the risk of the accident caused by it, it is a voluntary reason for disciplinary action, and ⑤ The Ministry of Labor’s disciplinary action and improvement committee, which seems to be unlawful by faithfully performing its duties as a public official under the Prime Minister’s authority.

5. Conclusion

Therefore, the part of the claim for mitigation of the disposition of this case among the claims of this case is unlawful, and the part of the claim for revocation of the disposition of this case is dismissed as it is without merit. The judgment of the court of first instance which dismissed the plaintiff's claim for revocation of the disposition of this case is just in this conclusion, and the plaintiff's appeal is dismissed as it is without merit, and the claim for mitigation of the disposition of this case