2013Nu1078 ex officio revocation of revocation of disposition

A

Minister of Employment and Labor

Seoul Administrative Court Decision 2012Guhap8885 Decided February 19, 2013

June 18, 2015

July 23, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's ex officio dismissal of the plaintiff on August 4, 2011 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

From 3. From '1.m.' to '1.m.' to '3.m., whether the disposition of this case is legitimate, (a) the plaintiff's assertion, (b) related Acts and subordinate statutes, and (c) facts of recognition' are as stated in the relevant part of the reasoning of the first instance judgment (as follows, from 3.m. to 9m.). Thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act

○ To delete from heading 18 to 19.

○ The 8th parallel 20 to 9th parallels are as follows.

13) On January 10, 2011, the Plaintiff filed a petition review with the appeals review committee seeking revocation of the removal from position. However, the appeals review committee dismissed the Plaintiff’s claim on April 8, 201 of the same year. The Plaintiff filed a lawsuit against the Defendant seeking revocation of the removal from position of this case under the Seoul Administrative Court 201Guhap16247, but the same court dismissed the Plaintiff’s claim on November 30, 201.

Seoul High Court Decision 201Nu45612, 18. 10, 2012, the appellate court revoked the removal from position of this case on the ground that "the removal from position of this case was unlawful due to the failure to undergo the prior notification and hearing procedures prescribed in the Administrative Procedures Act." However, Supreme Court Decision 2012Du26180, May 16, 201, which was the appellate court, reversed the above appellate court's decision on the ground that "the removal from position of this case from position under the State Public Officials Act, on the ground that Article 3 (2) 9 of the former Administrative Procedures Act and Article 2 (3) of the Enforcement Decree of the same Act, are deemed difficult or unnecessary due to the nature of the relevant administrative action, or through other procedures equivalent to administrative procedures, and thus, the provisions of the Administrative Procedures Act concerning prior notification and hearing of opinions

2. Determination

A. Whether procedural illegality is established

1) Articles 21(1)3 and 22(3) of the former Administrative Procedures Act (amended by Act No. 11498, Oct. 22, 2010; hereinafter “former Administrative Procedures Act”) provide that in cases where an administrative agency imposes an obligation on the parties or imposes a disposition restricting their rights and interests, the administrative agency shall be notified of the facts constituting the cause of the disposition, details of the disposition, legal basis, etc. in advance and give the parties concerned an opportunity to present their opinions. However, under Article 3(2)9 of the former Administrative Procedures Act and Article 2(3) of the Enforcement Decree of the same Act, the Administrative Procedures Act does not apply to the disciplinary action and other measures under the relevant Acts and subordinate statutes concerning the personnel affairs of public officials, which are deemed difficult or unnecessary due to the nature of the relevant administrative action, and which

On the other hand, the person having authority over disciplinary action may ex officio dismiss a public official in general service pursuant to Article 70(1) of the State Public Officials Act, and to take such action ex officio, he/she shall obtain consent from the competent disciplinary committee pursuant to the proviso of Article 70(2) of the same Act and Article 23(1) of the former Decree on Disciplinary Action against Public Officials (amended by Presidential Decree No. 23807, May 23, 2012). In such cases, the provisions on the jurisdiction over disciplinary action against a public official in accordance with the above Ordinance on Disciplinary Action against Public Officials shall apply mutatis mutandis. In addition, in cases where a public official is dismissed pursuant to Article 75 of the same Act,

Therefore, it is reasonable to view that the provisions of the Administrative Procedures Act concerning prior notice of dispositions and hearing of opinions, etc. are not separately applied inasmuch as dispositions by the State Public Officials Act fall under Article 3(2)9 of the former Administrative Procedures Act and Article 2(3) of the Enforcement Decree of the same Act, which are deemed difficult or unnecessary to undergo administrative procedures due to the nature of the pertinent administrative actions or which have undergone procedures

2) According to the evidence No. 2-3, evidence Nos. 2-2, evidence Nos. 50-1, 2, 51, evidence Nos. 52-1 through 3, 53, and 56, the defendant sent a copy of the written request for consent ex officio, stating the grounds for the instant disposition, to the plaintiff on April 19, 201. The plaintiff received such a copy on April 21, 201. The plaintiff submitted a written argument to the defendant and the Central Disciplinary Committee on May 23, 201. The defendant held a Central Disciplinary Committee to determine ex officio dismissal of the plaintiff on July 15, 201. The plaintiff attended the above Disciplinary Committee, the Central Disciplinary Committee made a resolution of consent ex officio to the plaintiff on the same day, and the plaintiff made a resolution of consent ex officio dismissal on August 25, 2011.

In light of the above facts in light of the legal principles as seen earlier, the disposition of this case is a disposition to dismiss the plaintiff and deprive the plaintiff of his status as a public official on account of the lack of the plaintiff's ability to perform his duties, and the disadvantage to the plaintiff is considerable, and thus, the appointing authority shall notify the relevant public official of the grounds for dismissal and give him an opportunity to present his opinion, and the result shall be considered as an element to consider whether ex officio dismissal is ex officio. However, according to the above facts of recognition, the defendant, prior to the disposition of this case, notified the defendant of the decision of the Central Disciplinary Committee prior to the disposition of this case so that the plaintiff can attend the above Disciplinary Committee and state his opinion, and the plaintiff who was present at the Disciplinary Committee and the Appeal Committee shall be given an opportunity to state his opinion. It is reasonable

(b) The existence of the grounds for the disposition, and whether the grounds for the disposition are deviates or abused from discretion;

1) Articles 70(1)5 and 73-3(1), (2), and (3) of the State Public Officials Act provide that an action for dismissal shall be taken upon the consent of the competent disciplinary committee when the pertinent public official is placed in a position on the ground that he/she falls under “person incapable of performing his/her duties” or “person extremely poor in work performance” and when he/she is deemed difficult to expect the improvement of his/her ability or work performance during the pertinent period within the scope of three months. In light of the purport of the above provision, whether an action for dismissal is to be taken upon the removal is subject to discretionary action based on the decision of the appointing authority. However, when an action for ex officio dismissal is taken, it shall be taken according to reasonable standards, i.e., when it is deemed difficult to expect the improvement of his/her ability or work performance, or when a fair review based on reasonable standards, such as deviation from discretion permitted in the examination for ex officio dismissal or abuse of his/her work performance, is unlawful.

2) In light of the above facts and the following circumstances revealed through the evidence revealed, it is difficult to view the Plaintiff as falling under “where it is difficult to expect the improvement of ability or work performance during the waiting period due to dismissal from one’s position, which is a ground for ex officio dismissal under Article 70(1)5 of the State Public Officials Act,” and even if considering the administrative purpose of the Defendant’s attempt to achieve the instant disposition in light of such a case, the instant disposition is deemed to be excessively unreasonable, and thus, it is unlawful as it deviates from and abused the discretion of the Defendant. Accordingly, the Plaintiff’s assertion pointing this out is with merit.

A) In light of the “Guidelines on the Performance Evaluation, etc. of Public Officials,” the method and criteria of multi-level evaluation conducted against the Plaintiff can be deemed justifiable. However, in light of the “Guidelines on the Performance Evaluation, etc. of Public Officials, etc.,” the Defendant may utilize the results of multi-level evaluation in capacity development, education, training, etc., and may use them as reference materials for promotion, transfer, performance payment, etc., but the Defendant does not plan to utilize the results of multi-level evaluation as reference materials for disadvantageous disposition, such as removal from position or ex officio dismissal. Moreover, the Plaintiff cannot be deemed to have

B) If the evaluation is conducted against the plaintiff, it is limited to a public official of Grade V who has been promoted to Grade V or more, and among them, a public official is dispatched to other departments, such as the headquarters, the National Labor Relations Commission, the Employment Insurance Review Committee, and the Industrial Accident Review Committee, and is excluded from the category of multi-level evaluation, and as a result, the plaintiff was judged to have insufficient leadership as an intermediate management officer, and as a result, the purpose of the ability strengthening program implemented by the defendant to the plaintiff is to enhance the central level of ability of the manager. In light of the fact that the reason for the removal from position against the plaintiff is less than one of the intermediate managers, the part that the plaintiff was released from his position and has to strengthen the ability for the three-month waiting period is an intermediate manager. Accordingly, even if the plaintiff failed to strengthen this ability, the part that the plaintiff should be discharged from his position for the three-month waiting period, regardless of the fact that the plaintiff's general duty performance itself is excellent or excellent, it seems that there is no problem other than the duties of the intermediary manager, the plaintiff.

C) The purpose of the special program for capacity strengthening is to enhance the manager-centered ability. The defendant, as a training for capacity strengthening, did not implement a program for capacity strengthening in addition to having conducted a 4-day training mainly for the subject of knowledge in the labor education center, and prepared a “report on the activities after the on-site support.” In addition, most of seven persons subject to the postponement of assignment that occurred as a result of a program for capacity strengthening are long-term employees who have not been actually faced with the retirement age as the plaintiff, and it seems to be more reasonable to change assignment to a position to exclude them from performing their duties, rather than expecting that their ability will be significantly improved through the implementation of the special program for capacity strengthening.

D) According to Article 73-3(4) of the State Public Officials Act, the appointing authority shall take measures necessary for the restoration of ability or the enhancement of work performance against a person under a waiting order, such as the granting of education and training or a special research task. The defendant may have the discretion to determine the means and method for assessing the plaintiff's ability or the degree of improvement of work performance, but in such a case, the rationality and predictability of the criteria and method for evaluation should be ensured. However, the defendant's notification of the subjective and descriptive written examination by assessing the plaintiff whose retirement age remains still, is not based on the basis and precedents of the law, and the defendant's notification three weeks prior to the examination scope of four subjects, such as the Labor Standards Act, is not based on the plaintiff's predictability, and thus, it is an abuse of the defendant's discretion (According to each statement in Articles 40 through 47, the defendant may not be deemed to have reached the conclusion that the plaintiff's removal from position from his/her position from the position of 200 to 209 as a written examination or skill test.

E) Although the Plaintiff received the 'yang' grade from the second half of the year of 2008 to the first half of the year of 2010, according to the evidence Nos. 3, 8-1 through 7, and 11 of the evidence Nos. 11, the Plaintiff received the excellent performance by obtaining recognition of his/her duties from March 9, 2006 to 2010 after promotion to the officer in charge, and the Plaintiff's performance rate from 2008 to 2010 was determined as A (Excellent). The Plaintiff passed the promotion examination for the officer and was appointed as the officer in charge of the promotion examination for the officer at the early time compared to the motive and received the official commendation and the official commendation during his/her service. More than anything else, according to the abstract of the evaluation by the head of the Seoul Regional Employment and Labor Agency for the capacity strengthening program, it is difficult to deem that the Plaintiff was considerably lacking in performing his/her duties at the same time as the result of the evaluation of his/her duties.

C. Sub-decision

Therefore, the instant disposition should be revoked in an unlawful manner because it is deemed that there is no ground for the disposition, or that there is a deviation or abuse of discretionary power.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges of the presiding judge, Yellow Judge

Judges Hun-Ba

Judges Kim Gin-ran

1) Where the appointing authority should hear the opinion of the Disciplinary Committee on the ex officio dismissal pursuant to Article 70 (2) of the Act, the disciplinary action against a request for a minor disciplinary action under this Decree shall be governed by the jurisdiction of the disciplinary action, and where the consent of the Disciplinary Committee shall be obtained, the disciplinary action against a request for a heavy disciplinary action under this Decree shall be placed.