Whether Article 14 and Article 1-3 (1) 1 of the Local Public Officials Discipline and Appeal Regulations that prescribe that the appointment authority shall hear the opinions of the City/Do personnel committee when he/she ex officio dismissal of a public official of Grade V or higher in the Si/Gun/Gu is null and void (negative)

Article 14 and Article 1-3 (1) 1 of the Local Public Officials Discipline and Appeal Regulations provide that the person with authority to appoint shall hear the opinion of the City/Do personnel committee when the person with authority to appoint intends to hear the opinion of the main sentence of Article 62 (2) of the Local Public Officials Act with respect to the procedures for hearing the opinion of the public officials of Grade V or higher in the Si/Gun/Gu. Even if the same Act does not stipulate any provision on delegation of the procedures for ex officio dismissal, the Presidential Decree may stipulate matters necessary for the enforcement of the same Act. The Local Public Officials Discipline and Appeal Regulations provide for the procedures for hearing the opinion of the City/Do personnel committee with respect to the ex officio dismissal of Grade V or higher in the Si/Gun/Gu as mentioned above by ensuring objectivity and fairness of the ex officio dismissal. The legislative purpose of the Local Public Officials Disciplinary and Appeal Regulations is to realize the constitutional ideology of guaranteeing the political neutrality of public officials and guaranteeing the status of public officials, and since the opinion of the City/Do personnel committee does not infringe on the authority to appoint the basic local government.

Article 62(2) of the Local Public Officials Act, Article 1-3(1)1, and Article 14 of the Local Public Officials Discipline and Appeal Regulations

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

Jeju Special Self-Governing Province Governor, a lawsuit taking place by the head of South Jeju Gun (Attorney Do-do, Counsel for the defendant-appellant)

Gwangju High Court Decision 2004Nu130 decided September 24, 2004

All appeals by the Defendants are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Article 62(2) of the Local Public Officials Act (hereinafter “Act”) provides that “When a public official is dismissed pursuant to the provisions of paragraph (1), the appointing authority shall hear the opinion of the relevant personnel committee in advance: Provided, That where a public official of Grade V or higher is dismissed pursuant to the provisions of paragraph (1) 7, the consent of the relevant personnel committee shall be obtained; and where a public official of Grade V or higher in a Si/Gun/Gu is dismissed pursuant to the provisions of paragraph (1) 7, the consent of the City/Do personnel committee shall be obtained.” In full view of the language and legislative purport of the above provision, and the purport of the relevant provision of the former Act (amended by Act No. 4370 of May 31, 191), the proviso of Article 62(2) of the Act applies only where the appointing authority ex officio dismissal of a public official of Grade V or higher in a Si/Gun/Gu pursuant to the provisions of paragraph (1) 7 of the same Article, the appointment authority shall not obtain the consent of the City/Do personnel committee.

Meanwhile, Article 62 (4) of the Act provides that "in the event that a public official is dismissed pursuant to the provisions of paragraph (1) 3, it shall undergo a prior resolution of the relevant personnel committee in determining the person to be dismissed, but this is a separate procedure from the procedure to hear the opinion of the main sentence of paragraph (2) of the same Article. Thus, even if it has undergone the resolution procedure under paragraph (4) of the same Article, it shall undergo a separate procedure to hear the opinion of the main sentence of paragraph (2) of the same Article.

In addition, according to Articles 14 and 1-3 (1) 1 of the Local Public Officials Discipline and Appeal Regulations (hereinafter “Disciplinary and Appeal Regulations”), the procedures for hearing the opinion of the main sentence of Article 62 (2) of the Act shall be prescribed to hear the opinion of the City/Do Personnel Committee when the appointing authority ex officio dismissal of a public official of Grade V or higher in the Si/Gun/Gu. Even if the Act delegates disciplinary and appeal procedures only to the Presidential Decree, and does not have any provision on delegation of authority to the procedures for ex officio dismissal, the Presidential Decree may prescribe matters necessary for enforcing the provisions of the Act on ex officio dismissal. The disciplinary and appeal regulations, as seen above, contain strict procedures in favor of the public official who is the subject of ex officio dismissal of Grade V or higher in the Si/Gun/Gu, is to secure objectivity and fairness of ex officio dismissal, thereby infringing on the constitutional ideology of guaranteeing the political neutrality of public officials and guaranteeing their status, and thus, the legislative purport of the Act does not violate the authority of the appointing authority of the above City/Do.

Therefore, the appointment authority should hear the opinion of the City/Do personnel committee in case of ex officio dismissal of public officials of Grade V or higher in the Si/Gun/Gu under Article 62 (1) 3 of the Act.

2. In light of the above legal principles, the court below erred by holding that the disposition of this case, which was conducted without hearing the opinion of the Jeju Provincial Personnel Committee pursuant to the main sentence of Article 62 (2) of the Act and Articles 14 and 1-3 (1) of the Jeju Provincial Personnel Committee's Disciplinary Action and Appeal Regulations, is unlawful, even though it was conducted without hearing the above opinion from the Jeju Provincial Personnel Committee's personnel committee pursuant to the main sentence of Article 62 (2) of the Act and Article 62 (4) of the Act, is just in holding that the disposition of this case was unlawful, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the procedure for ex officio dismissal of local public officials.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)