(영문) 서울행정법원 2011.8.26. 선고 2011구합13255 판결

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in the entries in Gap evidence Nos. 1-4, 8, and Eul evidence Nos. 1 and 5.

A. On February 22, 198, the Plaintiff was first appointed as a machine engineer for public bonds of Grade II on April 5, 2005, and was promoted to an administrative officer on April 5, 2005, and the director of the Ministry of Employment and Labor from February 19, 2009 to March 7, 2010, and is a public official in charge of occupational safety and health affairs in the Ministry of Employment and Labor’s jurisdiction.

B. On December 3, 2010, the Defendant dismissed the Plaintiff on the ground that the Plaintiff committed misconduct as stated in the attached grounds for disciplinary action and violated Articles 56, 61, and 63 of the State Public Officials Act. The Plaintiff appealed against this and filed an appeal with the appeals review committee to seek revocation of the above dismissal disposition. On March 17, 2011, the said appeals review committee excluded the Plaintiff Nos. 11,12 from the Plaintiff’s disciplinary action, and did not find any case of golfing during the Plaintiff’s working hours; the Plaintiff received a warning from the former and latter director in relation to the neglect of duties; the Plaintiff was a person of distinguished service to the State; and the Plaintiff submitted a written application for a written application for a dismissal.

D. Accordingly, as of April 5, 201, the Defendant changed the above dismissal disposition to the demotion and appointed the Plaintiff to the administrative assistant as of April 5, 201 (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) Claims on grounds of disciplinary action

A) The entertainment acceptance portion

The Plaintiff merely conducted golf at the request of C, etc., which is a subordinate staff, and did not leave the party involved in the construction site at a golf course. The Plaintiff, who became aware of the construction site by calculating golf costs, did not request the party involved in the construction site to pay golf costs for the construction site. The Plaintiff did not demand the party involved in the construction site to pay golf costs on a large scale. In particular, in the case of No. 6 of the Table No. 1 of the Attached Table No. 1 of the Disciplinary Reason No. 2010, the Plaintiff was transferred from B, B, on March 8, 2010 to the Gwangju Employment Support Center of the D branch, and thus, the party involved in the construction site at the time cannot be regarded as the party involved in the construction site as a business.

B) In light of the frequency of occurrence of a serious accident in the part of the supervision over the investigation of a serious accident, it is impossible for two supervisors to conduct an on-site investigation, and there is no need for two supervisors at all times from the commencement to the completion of the investigation. In the event of a serious accident investigation, submission of reports and expert opinions are required, and thus, an immediate witness investigation cannot be conducted. In ordinary, the Plaintiff did not discover more than a special one even if it was performed in some cases, and even if an investigation on the contractor was omitted, the omission of the investigation on the contractor cannot be said to be neglected.

C) It is difficult to see that inappropriate business performance of guidance and inspection on occupational safety and health is inappropriate to the extent that the business performance of C and E is subject to disciplinary action. Among many guidance and inspection cases, it is not acceptable to conclude that the business performance of guidance and inspection was improper on account of extreme number of cases. The implementation of corrective measures is conducted by the method of electronically binding the “on the date of suspension of time” sent by the labor inspector in charge of the implementation of corrective measures, and even if there are some deficiencies in evidentiary documents submitted by the business owner, it is impossible to confirm daily data that have not been removed from the electronic resolution

(2) Claim concerning a disciplinary decision

Even if the grounds for disciplinary action of this case are acknowledged to the Plaintiff, the Plaintiff’s entertainment acceptance and the amount thereof are the small amount, the Plaintiff’s full-time officer received minor dispositions such as warning on the ground of negligence of management and supervision, the Plaintiff’s receipt of lectures equivalent to E, which is the supervisor, goes against equity, and the Plaintiff’s decoration and decoration experience, E and C were subject to disciplinary action along with the Plaintiff’s disciplinary action, and the disciplinary action was excessive. As such, the instant disposition was excessively harsh to the Plaintiff, thereby deviating from and abusing the discretion.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Judgment on the grounds for disciplinary action

A) The entertainment acceptance portion

According to Gap evidence Nos. 6 and Eul evidence Nos. 2, the Ministry of Labor provides that "individuals or organizations subject to investigation, audit, supervision, inspection, administrative guidance, etc." under Article 2 subparag. 1 (p) of the Code of Conduct for Public Officials in the Ministry of Labor shall be the persons related to their duties, and the Minister of Labor shall not share golf with those who are stipulated in the above Code of Conduct for Public Officials in the Ministry of Labor in relation to their duties and who are on the line of approval for the duties of the individuals or organizations and their employees." However, in light of the above position and duties of the plaintiff, the persons related to the construction site who conducted the golf campaign as stated in attached Form No. 1 (1) of the Reasons for Disciplinary Action shall be the persons related to the plaintiff's duties as those subject to investigation, supervision, administrative guidance, etc., while the public officials' duties related to entertainment shall be in the past or in the future, and the acts of the plaintiff, despite the fact that the plaintiff asserted that he was responsible for the duties of the public officials in relation to entertainment, shall be considered as the whole or part of golf.

The plaintiff's assertion on this part is without merit.

B) The neglect of supervision over serious disaster investigation and supervision

Article 24 (1) of the Regulations on the Management of Labor Inspector in charge of Industrial Safety and Health, as stated in the attached Table, shall require a disaster investigation when the supervisor first investigates the site at the time of commencement of the disaster investigation. The purport of Article 24 (1) of the Regulations on the Management of Labor Inspector in charge of Industrial Safety and Health is that "shall endeavor to secure relevant documents, a witness's statement, etc., such as the date of safety and health education, and thoroughly investigate the cause of the disaster, etc.", and the head of

Article 29 (1) of the Industrial Safety and Health Act provides that "the business owner shall organize and operate a consultative body on safety and health."

According to Gap evidence Nos. 2, 3, 5, and Eul evidence Nos. 9 (including additional numbers), it may be recognized that labor inspector C and Eul, who are employees under the direct control of the plaintiff, independently conduct a field investigation, or did not conduct an investigation into the organization and operation of the consultative body on safety and health of the business owner, as shown in the table Nos. 2 through 2, 5, and 7 of the annexed Disciplinary Reason No. 2. The above acts of Eul and E are contrary to the above provisions, and it is reasonable to deem that the plaintiff, who is the immediate superior, violated the public official's duty by neglecting the management and supervision of the above acts of Eul and E, regardless of the circumstances asserted by the plaintiff. Accordingly, this part of the plaintiff's assertion is without merit.

C) Inappropriate part of occupational health guidance and inspection services

According to the statements in Gap evidence Nos. 2, 3, 5, and Eul evidence Nos. 9 (including additional numbers), it can be recognized that labor inspector C and Eul, who are employees under the direct control of the plaintiff, have breached their duty of good faith by neglecting the management and supervision of the above acts of Eul and E, as shown in the table Nos. 1 to 10, 13-14 of the annexed Disciplinary Reason No. 3.

2) Determination on the assertion on disciplinary action

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure is placed at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure as an exercise of discretionary authority has considerably lost validity under the social norms, it may be deemed unlawful. If a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by 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 the disciplinary measure, etc., and the contents of the disciplinary measure can be objectively and objectively deemed unreasonable (see, e.g., Supreme Court Decision 98Du6951, Nov. 26, 199).

In this case, the following circumstances can be acknowledged by comprehensively taking into account the overall purport of arguments in evidence Nos. 5 and 9, and evidence Nos. 3 and 8 (including each number), i.e., (i) a public official’s act of accepting a bribe infringes on the public’s trust in performing public duties, which in itself constitutes a crime with a high possibility of criticism; (ii) a public official’s act of receiving a bribe constitutes a crime with his or her subordinate employees, and (iii) a public official’s act of receiving a bribe has been repeatedly conducted with his or her subordinate employees by giving and supervising them several times with his or her subordinate employees; and (iv) a person related to the construction company, such as a golf meeting on Nov. 14, 2009, cannot be deemed as a passive act of the Plaintiff; (iii) a public official’s full-time officer cannot be deemed as having been subject to disciplinary action against the Plaintiff for the reason that the Plaintiff’s act of receiving a disciplinary punishment against his or her subordinate act is not subject to disciplinary punishment against the Plaintiff’s disciplinary punishment or disciplinary punishment against the instant act.

The plaintiff's assertion on this part is without merit.

3. Conclusion

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