[1] Whether the act of consultation, consent, and entrustment between administrative agencies, consent, approval, instruction, receipt of orders, and application, report, etc. to a superior administrative agency of a superior administrative agency is an administrative disposition subject to appeal litigation (negative)

[2] Whether the request for employment decision and employment cancellation by the chairman of the public service ethics committee under Article 19 of the former Public Service Ethics Act is an administrative disposition subject to appeal litigation (negative)

[1] The act of consultation, consent, and entrustment between administrative agencies, consent, approval, instruction, receipt of orders, and application, reporting, etc. to a superior administrative agency of a lower administrative period, as an internal act does not directly affect the rights and obligations of the people as an internal act, and thus, it should not be subject to appeal litigation in principle, and shall not be subject to appeal litigation, and shall dispute specific acts conducted outside.

[2] Article 19 of the former Public Service Ethics Act (amended by Act No. 8098 of Dec. 28, 2006) provides that where a retired public official works for a private enterprise, etc. in violation of Article 17(1) of the same Act, the chairperson of the public service ethics committee, etc. shall request the head of the relevant central administrative agency to devise measures to cancel employment. Upon receipt of such request, the head of the relevant central administrative agency shall demand the removal of the relevant public official from the private enterprise where he/she is employed, and the relevant private enterprise, etc. shall comply with such demand without delay. Even if the chairperson of the public service ethics committee determines that the employment of the retired public official is inappropriate and requested the head of the relevant central administrative agency to take measures to cancel employment from the private enterprise, it is difficult to view that the above decision to deny employment does not directly change the pertinent public official’s status or status, and it is difficult to consider the legal effect of the removal of the Plaintiff’s status only upon the request for dismissal and the private enterprise’s request for dismissal under the relevant provisions of employment ethics regulations or public service ethics.

[1] Article 2 of the Administrative Litigation Act / [2] Articles 17 and 19 of the former Public Service Ethics Act (amended by Act No. 8098 of Dec. 28, 2006); Articles 31, 32, 33, 33-2, and 33-3 of the former Enforcement Decree of the Public Service Ethics Act (amended by Presidential Decree No. 20099 of Jun. 21, 2007); Articles 2 of the Administrative Litigation Act

[1] Supreme Court Decision 82Nu370 delivered on February 14, 1984 (Gong1984, 520)

Plaintiff (Attorney Young-chul et al., Counsel for plaintiff-appellant)

The Chairperson of the Government Public Service Ethics Committee

May 15, 2007

1. The instant lawsuit shall be dismissed.

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

On December 21, 2006, the Defendant’s decision that “the Plaintiff confirmed that employment is not available to the Prosecutor General who made a request for verification as to whether employment is restricted to the Plaintiff’s outside director of Korea-do branch company” was revoked on December 21, 2006, and the Defendant’s decision that “the Plaintiff requested the Prosecutor General to take measures for employment cancellation pursuant to Article 19(1) of the Public Service Ethics Act” was revoked.

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be recognized by comprehensively considering the overall purport of the pleadings in each entry in Gap evidence 1 and Eul evidence 1:

A. The plaintiff was the chief prosecutor of the Cheongju District Prosecutors' Office from February 8, 2002 to March 12, 2003, the chief prosecutor of the Seoul Central District Prosecutors' Office from March 13, 2003 to May 31, 2004, the chief prosecutor of the Daejeon High Prosecutors' Office from June 1, 2004 to April 7, 2005, and the chief prosecutor of the Daejeon High Prosecutors' Office from November 22, 2005 to retired from office on November 22 of the same year and was the person liable for registration under Article 3 (1) 5 of the former Public Service Ethics Act (amended by Act No. 8098, Dec. 28, 2006; hereinafter the same).

B. On March 24, 2006, the Plaintiff was appointed as an outside director of the non-profit private-making private-law private-making private-law corporation (hereinafter referred to as “limited-profit private-making corporation”) that is publicly notified by the Minister of Government Administration and Home Affairs in the official gazette pursuant to Article 17(2) of the former Public Service Ethics Act and Article 33(3) of the Enforcement Decree of the Public Service Ethics Act, and requested the Supreme Prosecutors’ Office to confirm whether employment is restricted pursuant to Articles 33-2 and 33-3 of the Enforcement Decree of the Public Service Ethics Act. The Supreme Prosecutors’ Office requested the Defendant to confirm

C. On December 21, 2006, the defendant decided that the Seoul District Prosecutors' Office, within three years prior to the plaintiff's retirement, had decided that the three suspects including the representative director of the Korea District Prosecutors' Office in the case of "Interference with Business" in 2003 punishment No. 2333, and that the Daejeon District Prosecutors' Office imposed a fine of KRW 3 million in violation of the Occupational Safety and Health Act in the case of "Violation of the Occupational Safety and Health Act and Death from Occupational Negligence" in 2004 punishment No. 45524 and 53530. However, even if the case dealt with by the Daejeon District Prosecutors' Office did not have relevance to the business, the defendant decided that the case dealt with by the Daejeon District Prosecutors' Office constitutes "business affairs deemed to have a direct and considerable influence on the company's property right according to the method of dealing with other business affairs" under Article 32 (2) 7 of the Enforcement Decree of the Public Service Ethics Act, and requested the Prosecutor General to examine and decide the employment of the plaintiff on the same month 26.

2. The plaintiff's assertion

In applying Article 17(3) of the former Public Service Ethics Act, the scope of duties of the department to which the employee belongs under Article 17(2) of the same Act shall be set and applied so that the freedom and rights of retired public officials shall not be unduly infringed. Thus, in determining whether there is a close relation with the duties of the department to which the employee belonged within three years prior to his retirement, strict and limited interpretation should be made. However, in the case of the Seoul Public Service Ethics Act No. 2003, the Plaintiff, who was the chief prosecutor of the Seoul Central Public Prosecutor’s Office at the time, was the senior prosecutor’s office of Seoul Central Public Prosecutor’s Office, was unaware of the above case because the Plaintiff was not reported or approved in advance. In addition, the above case was forwarded from the police to the prosecutor’s office as non-prosecution opinion, and the case was terminated by a non-prosecution disposition (no suspicion) without any separate investigation by the complainant, and there was no need for the Plaintiff to intervene in the above case. Accordingly,

3. Judgment on the Defendant’s main defense

A. The term “administrative disposition”, which is a subject of an appeal litigation, refers to an act of an administrative agency’s public law that directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations, or by causing other legal effects with respect to a specific matter. Thus, an act that does not directly affect the legal status of the other party or other interested parties is not an administrative disposition that is subject to appeal litigation. Meanwhile, whether an act of an administrative agency constitutes an administrative disposition that is subject to appeal litigation is not an act of which nature and effect of the act, but the purpose of the administrative litigation system or the function of protecting the rights of the citizens by the purpose of judicial power (see, e.g., Supreme Court Decision 2005Du12398, Feb. 23, 2005). Accordingly, an act of consultation, consent, approval, instruction, and delivery between administrative agencies, and an application, report, etc. to a superior administrative agency of a superior administrative agency, which is an internal act, and thus, is not subject to appeal litigation.

B. According to Article 19(1) of the former Public Service Ethics Act, when there is a person employed in violation of Article 17(1) of the same Act, the chairman of the public service ethics committee, etc. shall request the head of the relevant central administrative agency to devise measures to cancel employment. The head of the relevant central administrative agency, upon receipt of such request, shall demand the head of the profit-making private enterprise or the Association under the Public Service Ethics Act where the person is employed. According to Article 19(2) of the former Public Service Ethics Act, upon receipt of the above request for dismissal, the head of the private-profit enterprise or the Association under the same Act must comply with such request without delay. However, even if the defendant decided that the employment of the plaintiff is impossible, and the defendant's request was made to the Prosecutor General who is the head of the relevant central administrative agency pursuant to Article 19 of the former Public Service Ethics Act, it is difficult to consider that the defendant's request for dismissal without any specific legal effect of the penalty provisions that directly change the status or status of the plaintiff, and it is difficult to recognize the legal effect of the plaintiff's request for dismissal.

C. Therefore, the plaintiff's lawsuit of this case is unlawful, and the defendant's main defense pointing this out is justified.

4. Conclusion

If so, the lawsuit of this case is unlawful and dismissed without any further determination on the merits. It is so decided as per Disposition.

Judges Jeong-hee (Presiding Judge)