Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

The Chief of the Western Police Station

March 23, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s reprimand disposition against the Plaintiff on June 4, 2010 shall be revoked.

1. Details of the disposition;

A. After being appointed as a police officer on April 3, 199, the Plaintiff was promoted to the police officer on May 7, 2005, and served in the Seosan Police Station from April 30, 2010 to the south of the police station.

B. On April 2, 2010, the Defendant demanded the Plaintiff to take disciplinary action against the police officers belonging to the Seosan Police Station on the ground that “Around May 13, 2010, the Plaintiff violated the above order by avoiding disturbance for about 30 to 40 minutes while under the influence of alcohol in 00:30 to 01:10 on May 13, 2010, while drinking in 00 to 01:40 minutes at ○○○○ Dong-dong, Seosan-si, and violated the duty to maintain dignity as a police official” (hereinafter “instant disciplinary action”). Accordingly, the instant disciplinary action against the Plaintiff on June 4, 2010 was decided (hereinafter “instant disciplinary action”).

The Plaintiff, included in the main text, was aware of a police officer’s status as a police officer, and expressed his/her desire to enter an entertainment establishment while under the influence of alcohol, interfere with his/her business, thereby violating the duty to maintain dignity as a police officer, such as voluntary accompanying from a police officer dispatched upon receipt of a report. On April 2, 2010, the Plaintiff violated the duty to maintain dignity as a police officer, such as a police officer’s duty to voluntarily accompany him/her from the police officer upon receipt of a report. On April 2, 2010, the Plaintiff issued an order to refrain from entering and departing from a police officer’s establishment in order to eliminate any structural corruption factor by removing his/her procopic corruption factors, but it was well aware of the order to visit the police officer’s establishment with culture from his/her superior officer. However, it is recognized that the above act violated Article 56(1) of the State Public Officials Act, Article 57(1)1 of the former Disciplinary Rule and Article 7(1)3(1) of the Act, and 16(2) of the latter.

C. The Plaintiff appealed against the instant disciplinary action and filed an appeal with the appeals review committee of the Ministry of Public Administration and Security, but the said committee dismissed it on September 3, 2010.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disciplinary action is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the instant disciplinary action is unlawful for the following reasons.

1) Absence of grounds for disciplinary action

원고는 ○○○ 단란주점 업주인 소외 1이 원고에게 욕설을 하면서 원고를 모욕하였지만, 그에 대응하여 소외 1을 때리거나 소외 1에게 금품을 요구한 일이 없고 그녀에게 호의로 건넸던 귤의 반환을 요구한 일이 있을 뿐이므로, 지시명령에 위반하거나 경찰공무원으로서의 품위유지의무를 위반하였다고 할 수 없다.

(ii)the illegality in disciplinary proceedings;

Although the Plaintiff was present at the instant disciplinary committee, it was not provided with sufficient opportunity to vindicate the grounds for disciplinary action, etc. In particular, the instant disciplinary committee committed a serious procedural violation by making a disciplinary decision without considering the Plaintiff’s career in the official ruling of the Commissioner General of the National Police Agency around August 31, 2009.

(iii)the deviation from and abuse of disciplinary discretion;

Even if there are grounds for disciplinary action for violation of the duty to maintain dignity at least to the Plaintiff, the instant disciplinary action is excessively harsh in light of the degree of the violation of the duty to maintain dignity, and thus deviates from and abused the disciplinary discretion, taking into account all the circumstances, such as the following: (a) the Plaintiff did not induce the disturbance in the instant ○○○○○○ dan dan dan; (b) the degree of the disturbance was somewhat serious; (c) the Plaintiff did not have any weighted; (d) the Plaintiff received a large number of official commendation while serving as a police official; and (e) the instant disciplinary action is considered disadvantageous to the Plaintiff’s future promotion.

(b) Relevant statutes;

It is as shown in the attached Form.

C. Determination

1) Whether there exist grounds for disciplinary action

가) 살피건대, 갑 제3호증, 을 제 2, 5 내지 11호증의 각 기재 및 증인 소외 1, 2의 각 증언에 변론 전체의 취지를 종합하면, ① 원고가 2010. 5. 12. 23:00경 서산시 읍내동 (지번 생략) 소재 ○○○ 단란주점에 찾아가 그 업주 소외 1에게 호의로 귤 한 상자를 건넨 후 잠시 자리를 비웠다가, 같은 달 13. 00:30~00:40경 술에 취한 채 다시 위 단란주점에 찾아가 소외 1과 이야기를 나누던 도중, 그녀와 수십 분 간 서로 언성을 높이면서 말다툼을 한 사실, ② 그 과정에서 원고는 소외 1에게 욕설을 하면서 “내가 서산의 원고 형사인데, 이 바닥에서 장사를 하려면 1,000만 원을 내놓으라”라는 취지로 말하고, 무릎으로 그녀의 샅 부분을 찬 사실, ③ 이에 소외 1은 같은 날 01:17경 112에 신고를 하였고, 출동한 경찰관들에 의해 원고가 서산경찰서 서부파출소로 임의 동행된 사실, ④ 한편 피고는 2010. 4. 2.경 업소유착 금품수수 비위를 근절하여 대국민 신뢰를 회복한다는 추진 배경 아래 사행성게임장·도박 및 성매매업소(유흥업소 포함) 운영·종사자 및 업소 운영 관련 조직폭력배 등과의 전화 통화, 이메일 송·수신, 면담, 회식, 금전거래 등을 금지한다는 내용을 담은 ‘유착비리 근절을 위한 경찰대상 업소 접촉금지’ 지시사항을 수립하여 서산경찰서 각 간부들에게 하달(이하 ‘이 사건 지시명령’이라 한다)하였고, 서산경찰서 생활안전과장을 통하여 원고에게까지 이 사건 지시명령이 하달된 사실 등을 인정할 수 있다. 이에 의하면 원고는 술에 취한 채 단란주점에 출입하여 소란을 피우고 금품을 요구하는 등 부적절한 언행으로 112 신고의 대상이 되고 경찰서로 임의 동행됨으로써 그 소속 상관의 직무상 명령을 위반하고 경찰공무원의 품위를 손상시켜 국가공무원법 제56 , 57 , 63조 소정의 성실의무, 복종의무 및 품위유지의무를 각 위반하였다고 봄이 상당하다.

B) In particular, the Plaintiff asserts that ○○○○○ dan constitutes an entertainment business among the detailed types of business under the Enforcement Decree of the Food Sanitation Act, and that the subject of this case’s order prohibiting contact is limited to entertainment business establishments, namely, entertainment business establishments engaged in entertainment business, among the detailed types of business under the Enforcement Decree of the Food Sanitation Act, or those engaged in entertainment business, which are allowed to employ entertainment workers or install entertainment facilities, and therefore, it does not constitute an object of this case’s order even if the Plaintiff entered the said ○ ○○ ○○ ○○ Ga○ dan.

Therefore, the following circumstances, which can be acknowledged by comprehensively taking account of the entries in Gap evidence No. 3 and the overall purport of oral argument, namely, ① the instant order appears to have been prepared to eradicate the arrival between the police and the business establishment in order to recover trust of the general public in the level of integrity of the police; ② As such, the instant order is merely merely an example of the type of a business establishment that is likely to come with the police officers, and it is interpreted that the scope is not limited. ③ The plaintiff actually attempted to eradicate the instant order, such as demanding money from non-party 1, the proprietor of the instant ○○○○○○○○○○○○○○○○, a police officer, etc. on the ground of the police officer, by considering the fact that the Plaintiff attempted to eradicate the instant order.

2) Whether there is an error in disciplinary proceedings or not

In full view of the overall purport of arguments in Gap evidence 1-2, Eul evidence 2-2, Eul evidence 2-3, Eul evidence 2-3, and Eul evidence 2, the disciplinary committee of this case was held at the meeting room of the General Disciplinary Committee for Police Officers in Seogsan Police Station from June 4, 2010 to 12:00; ② the plaintiff attended the above disciplinary committee and gave an opportunity to present evidence or statements favorable to the plaintiff before his retirement; ③ The chairperson of the disciplinary committee provided the plaintiff with an opportunity to present evidence or statements favorable to the plaintiff; ④ The committee of the National Police Agency prepared a written explanation in advance after its statement, and presented it to the plaintiff; ④ The committee of this case was held at the meeting of the general disciplinary committee for police officers in Seosan Police Station from Jun. 4, 2010 to 12:00; ② The committee of the Ministry of Public Administration and Security to recognize that the plaintiff had been given an opportunity to give an official commendation in light of the above circumstances, including the plaintiff's experience in discipline, and thus, the committee of this case was held.

3) Whether there exists a deviation or abuse of the disciplinary discretion

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 is deemed to have abused the discretionary power that has been placed at the discretion of the person having authority to take the disciplinary measure because the person having authority to take the disciplinary measure has considerably lost validity under social norms, the measure may be deemed unlawful. In addition, in order to deem that a disciplinary measure against a public official has considerably lost validity under social norms, it should be deemed that the content of the disciplinary measure can be objectively and clearly deemed to have been objectively unfair when comprehensively 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 the determination of disciplinary measures, etc. (see Supreme Court Decisions 2005Du6447, Feb. 24, 2006; 2006Du3865, Aug. 24, 2006).

B) In light of the above legal principles, comprehensively taking into account the following circumstances: (a) the Plaintiff was serving as a police officer for about 11 years from the date of the instant disciplinary action after he was appointed as a police officer around April 3, 199; (b) Nonparty 1, the victim of the instant case, suffered minor damages; and (c) the victim expressed his intention not to punish the Plaintiff from the date of the instant disciplinary action; (d) on the other hand, the Plaintiff violated the standards of the instant order only one month after the issuance of the order; and (b) the Plaintiff’s failure to perform his duty and negligence cannot be deemed inappropriate in light of the content and circumstances of the instant disciplinary action; and (c) the disciplinary action against the Plaintiff cannot be deemed as a violation of social norms by taking into account that the disciplinary action against the instant disciplinary action was taken in favor of a police officer, and thus, it cannot be deemed that the Plaintiff’s violation of social norms, including the degree of disciplinary action to which the instant disciplinary action would have been lost due to the violation of social norms.

4) Sub-committee

Therefore, the instant disciplinary action is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

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

[Attachment]

Judges Embryon (Presiding Judge)