(영문) 제주지방법원 2019.5.22.선고 2018구합5301 판결

A. The Plaintiff is a police officer who was appointed as the Inspector in 198 and was promoted to be mitigated in 2014. From July 3, 2017 to the Jeju Police Station 112 Overall Situation Office.

B. On September 28, 2017, the Defendant imposed a disciplinary measure for two months of salary reduction under Article 56 (Duty of Good Faith), Article 57 (Duty of Compliance), and Article 63 (1) 1 through 3 of the State Public Officials Act on the ground that the Plaintiff committed misconduct as follows. On September 28, 2017, the Defendant intentionally applied for a disciplinary measure against the Plaintiff during the period of 1st 7th 2nd 2nd 2nd 7th 2nd 2nd 7th 2nd 7th 2nd 7th 2nd 7th 2nd 7th 7th 2nd 1st 7th 2nd 1st 2nd 2nd 2nd 2nd 2nd 2nd 2nd 3th 2nd 2nd 3th 2nd 2nd 3rd 2nd 2nd 2nd 2nd 3rd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 3th 2nd 2nd 2nd 3th 3th 2nd 3.

[Grounds for Recognition] Facts without dispute, entry of Eul Nos. 1, 12 through 15 (including each number if there are several numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The instant disciplinary action shall be revoked on the ground that it is unlawful for the following reasons. (1) The Plaintiff faithfully worked for childcare while taking advantage of leisure time, and only attended a law school. Nevertheless, the Defendant’s determination that the Plaintiff was merely used for the purpose other than the purpose of temporary retirement on the ground that the Plaintiff had a law school during temporary retirement without considering the specific circumstances as to the Plaintiff’s method of temporary retirement (hereinafter “first assertion”). (2) Since the Defendant was aware that the Plaintiff was a law school at the time of the Plaintiff’s application for temporary retirement, it would be in violation of the principle of trust protection to punish the Plaintiff (hereinafter “second assertion”). (3) Although the Defendant issued a reprimand or an unwritten warning to the police officer who attended a law school by taking advantage of existing temporary retirement, it would violate the principle of equality (hereinafter “the Plaintiff’s allegation”).

3. Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

4. Determination

A. According to the contents of the relevant provision and its interpretation 1) Article 71(2) of the State Public Officials Act, when a public official wishes to take a leave of absence for any of the following reasons, the appointing authority may order the public official to take a leave of absence: (2) When the public official is temporarily employed by an international organization, foreign institution, domestic or foreign university or research institute, other State agency, or private enterprise prescribed by Presidential Decree or any other institution (hereinafter referred to as "employment leave") or when he/she is going to take a training course at a research institute or educational institution designated by the head of the multilateral personnel agency (hereinafter referred to as "work leave of absence" in subparagraph 2; hereinafter referred to as "work leave of absence"); (c) when he/she takes a training course at a research institute or educational institution designated by the head of the multilateral personnel agency (hereinafter referred to as "training leave of absence"); and (d) when he/she is required to raise a child under the age of eight or lower

When a public official is pregnant or gives birth (as referred to in subparagraph 4; hereinafter referred to as "child care leave"), when it is necessary to nurse a grandparent, parent (including the parent of his/her spouse), spouse, child, or grandchild who requires long-term medical care due to an accident, disease, etc. (if it is necessary to take care of his/her grandparents or grandchildren, it shall be limited to cases where he/she meets the requirements prescribed by Presidential Decree, such as where he/she is entitled to take care of his/her grandparents or grandchildren; hereinafter referred to as "domestic leave") (as referred to in subparagraph 5; hereinafter referred to as "domestic leave"), when a public official being employed in a foreign country is accompanied by his/her spouse who works, study, or receives training in the foreign country (as referred to in subparagraph 6; hereinafter referred to as "overseas accompanying leave"), or when a public official takes lessons, research, etc. for the implementation of research projects related to his/her duties or his/her development (hereinafter referred to as "temporary retirement") and in cases of a child care leave, the appointing authority shall issue.

In addition, according to Articles 71(4), 72(1)7, and 73 of the State Public Officials Act, a person who has the authority to appoint shall not give unfavorable treatment to the person on the ground of childcare leave, and (2) the period of childcare leave shall not exceed three years for one child; (3) the public official holding his/her status but is unable to perform his/her duties; and (4) the person having the authority to appoint or recommend appointment shall report his/her status to the person having the authority to appoint within 30 days if the reason ceases to exist during the period of childcare; and (5) the person having the authority to appoint or recommend appointment of a public official shall be reinstated as a matter of course when the public official has reported his/her return within 30 days during the period of childcare; and (2) under Article 57-5(1) and (3) of the Decree on the Appointment of Public Officials, the person having the authority to appoint or recommend appointment of a public official under Article 71 of the State Public Officials Act, unlike the reason for his/her temporary retirement, clearly violates the purpose of reinstatement (Article 91-7).

In addition, according to Articles 91-8(5) and 91-10(1) of the Regulations on the Appointment of Public Officials pursuant to delegation of Article 57-5(4) of the Decree on the Appointment of Public Officials, the Review Committee on Temporary Retirement may examine whether the public official has used the public official for any purpose other than his/her original purpose based on the inspection of actual status of temporary retirement and the results of the report on his/her status of his/her service. In such cases, the Committee shall take into account the possibility of achieving the purpose of temporary retirement, the period of use for any purpose other than the original purpose of temporary retirement, whether the public official is intentional, the possibility of permission by social norms, and other cases where the public official on temporary retirement is considerably in violation of the purpose of temporary retirement.

3) Comprehensively taking account of the language, content, form, and system of such relevant provisions, whether a public official on temporary retirement has used it for a long time should be determined objectively by comprehensively taking into account not only the purpose or achievement possibility of the public official’s temporary retirement, but also the intention, the period of use outside the purpose of the temporary retirement, and whether it is permissible under social norms, on the premise that the public official’s use of it for a long time is a beneficial system that guarantees his/her status to the public official for whom the reason for not performing his/her duties arises, and that the public official’

(b) Fact of recognition;

In full view of the aforementioned evidence, evidence No. 2, evidence No. 2, and evidence No. 2 to No. 11, and evidence No. 17, the following facts are acknowledged.

1) From July 31, 2015 to July 30, 2016, the Plaintiff entered the law school on March 2, 2015 and completed the first semester, the Plaintiff took childcare leave for children B as a ground for temporary retirement from July 31, 2015, and thereafter July 7, 2016.

31. From July 30, 2017 to July 30, 2017, the Plaintiff completed 19 credits in the law school prior to the temporary retirement for childcare, and the Plaintiff completed 26 credits in total, including 20 credits in 8, 6 credits in 18, 6 credits in 2016, 6 credits in 6, 2016, 6 credits in 26, 12 credits in 6, 2017, and 68 credits in the law school during the aforementioned temporary retirement period.

3) On April 2015, the Defendant directed the Jeju Provincial Police Agency’s departments, offices, and police stations to strengthen the service management of temporary retirees, including the following:

The Plaintiff prepared and submitted a report on the status of the temporary retirement to the Defendant eight times in total from September 4, 2015 to April 20, 2017, by confirming whether the current temporary retirement employee was used for the purpose other than the purpose of his/her temporary retirement to verify whether the employee was employed for the purpose other than the purpose of his/her temporary retirement, and having the employee submit a written report on the status of his/her temporary retirement for the purpose other than the purpose of his/her reinstatement or inspection to verify the use for the purpose other than the purpose of his/her temporary retirement. However, the Plaintiff did not enter the fact that he/she attends the law school only once at that time.

5) On July 31, 2015, the first time of the childcare leave, the Plaintiff made a commitment to the Defendant with the following contents:

1. The person himself/herself, not in violation of the purpose of temporary retirement, such as prohibition of profit-making activities. 2. The person himself/herself assumes that, if it is impossible to achieve the purpose of temporary retirement or substantially violates the purpose of temporary retirement, he/she will immediately return to his/her original state to the appointing authority. 3. When the use of his/her original purpose is excessive, he/she assumes that he/she will be subject to strict punishment in accordance with the relevant laws and regulations, regardless of the motive.

1) Determination on the first argument

In full view of the contents of the aforementioned relevant provisions and the aforementioned facts, the Plaintiff’s act of attending the law school during childcare leave falls under “the use for purposes other than the purpose of temporary retirement” and this part of the Plaintiff’s assertion is without merit. (1) Article 71(2) of the State Public Officials Act clearly divides the grounds for temporary retirement into so-called employment leave, study leave, temporary retirement, temporary retirement, childcare leave, family leave, accompanying temporary retirement from overseas, and self-development leave. Even if the reason for temporary retirement, which appears to fall under the similar category, also falls under the case of study abroad (Article 2(2)), when a public official who served in the law school during the period prescribed by the Presidential Decree, receives a training from a research institution or educational institution designated by the head of the central personnel agency (Article 3(3)), and a public official’s study and research for the performance of research tasks related to his/her duties or self-development.

In addition, Article 72 of the State Public Officials Act provides different periods of leave for each reason, and in particular, in the case of childcare leave, "the period of leave shall not exceed three years for each child."

In addition, unlike other reasons for temporary retirement, the appointment authority shall order temporary retirement except in extenuating circumstances, and shall not give any disadvantageous treatment to the personnel on the ground of temporary retirement, and in particular, the temporary retirement for public officials is much longer long than the period of temporary retirement for general workers (Article 19(2) of the Equal Employment Opportunity and Work-Family Balance Assistance Act for one child).

Ultimately, considering the following circumstances revealed according to the contents of the pertinent provisions, namely, ① the State Public Officials Act classify the grounds for temporary retirement into very detail, and the period of temporary retirement differs, respectively, and ② the temporary retirement is a prolonged period in terms of the period, frequency and permission, and the number of times is not limited, and there is no limit to the number of times, and the right to protect family life and maternity is strongly guaranteed, and ③ the temporary retirement of public officials is a right to protect family life and maternity. In particular, the issue of whether the Plaintiff used temporary retirement for temporary retirement should be determined according to very strict standards. In particular, the circumstances should be taken into account where the temporary retirement for temporary retirement for temporary retirement and temporary retirement for study, temporary retirement for temporary retirement for temporary retirement for temporary use, and self-development for temporary retirement for temporary use

(2) While the Plaintiff asserts that he had attended a school by focusing on raising his children during the period of childcare leave and making use of leisure time, there is no objective evidence to acknowledge this.

Rather, considering the following circumstances, the Plaintiff’s assertion on this part is insufficient to have reasonable persuasive power.

① The Plaintiff’s subjects and credits taken at law school for two years during childcare leave are 26 and 68 credits (averagely equal to the subjects and credits taken by college students, which are 13 and 34 credits per year). The amount of learning is considerably high, and as such, it seems reasonable for the Plaintiff to send classes and credits from law school to the law school.

② In addition, the law school usually has completed at least 90 credits of general law subjects for three years, and it is operated by the method of acquiring the lawyer qualification to pass the bar examination to be conducted immediately after the completion of the law school. Therefore, it is difficult in reality to complete the law school course by taking a careful care and care of the Plaintiff and taking full care of two children, who are infants and children in need of care, while taking full care of childcare activities.

③ The Plaintiff voluntarily testified that two children were placed in a childcare center and completed the course of attending the law school to take part in the school, and that the Plaintiff appeared to have used most working hours for the Plaintiff to take part in the law school rather than childcare. (3) Since 2013, the Defendant has continuously strengthened the service management of the temporary retirees. In addition, around March 2015, the Board of Audit and Inspection knew that the Plaintiff was well aware that police officers were going to take part in the law school during the period of temporary retirement, and that there was an auditor for the childcare children. In particular, the Plaintiff was aware that there was an auditor for the childcare children.

Nevertheless, from September 4, 2015 to April 20, 2017, the Plaintiff prepared and submitted to the Defendant a report on the status of leave of absence from office at least eight times, and did not state that he/she is in school at law school only once.

2) Determination on the second argument

In full view of the above facts and the following circumstances admitted by the aforementioned evidence, it is difficult to view that the Defendant granted the Plaintiff the trust that the Defendant would be allowed to use childcare leave to attend the law school, and there is no other evidence to acknowledge this. Therefore, the Plaintiff’s assertion on this part is not acceptable.

(1) From 2013 to 2013, the Defendant’s purport is to thoroughly manage the act that substantially violates the purpose of temporary retirement, such as going against the duty of prohibition of profit-making business, unlike the reason for temporary retirement.

Around April 2015, the Plaintiff implemented a plan to strengthen the service management for temporary retirement, and around April 2015, the Plaintiff was ordered to strengthen the service management for temporary retirement, such as the departments, offices, and police stations belonging to the Jeju Provincial Police Agency, which were 2 to 3 months prior to the Plaintiff’s filing of an application for temporary retirement. During the content, the Defendant also mentioned the case of temporary retirement for which the Defendant, while taking temporary retirement for childcare, used considerable time for study beyond the purpose of fostering, etc. (2). Even if the Defendant had already been aware of the Plaintiff’s law school as alleged by the Plaintiff, it is difficult to say that the Defendant was aware that the Plaintiff would actually attend the law school. (3) In the case of temporary retirement for childcare, it is difficult to view that the appointment authority was to order temporary retirement, except in extenuating circumstances, since the Defendant ordered the Plaintiff to take temporary retirement upon the Plaintiff’s filing of the Plaintiff’s application for temporary retirement and granted the Plaintiff a trust that the Defendant would use the childcare leave for another purpose.

3) Determination on the third argument

In full view of the following circumstances acknowledged in addition to the purport of the entire pleadings, the instant disciplinary action is difficult to be deemed as violating the principle of equality, and thus, the Plaintiff’s assertion on this part cannot be accepted.

(1) As a result of the Board of Audit and Inspection conducted an audit of police officers' law school attendance in around 2015, three of the 32 police officers who attended the law school during the period of leave of absence is subject to reprimand, 18 of the 198, and 6 of the 2015.

(2) After the Board of Audit and Inspection had reported this problem in the media, it re-checked the status of the service of the first half of the year in 2017, and according to the result, the Korean National Police Agency took the action of suspension from office and eight of the nine of the nine of the nine police officers who were enrolled in the law school during the childcare leave as the Plaintiff.

(3) Prior to the above audit by the Board of Audit and Inspection, it seems that the number of public officials who were enrolled in the law school is not a serious problem during the police officer’s temporary retirement, and it is difficult to view that the possibility of criticism against the plaintiff is the same as that of other public officials who were subject to disciplinary action in 2015, even though the defendant was aware of the fact that the police officer’s temporary retirement after the above audit by the Board of Audit and Inspection was at issue, the plaintiff was attending the law school during the temporary retirement period, and the plaintiff was not in violation of the purpose of temporary retirement on July 31, 2015, when the plaintiff voluntarily takes the first temporary retirement leave.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.