(영문) 부산지방법원 2013.4.12. 선고 2012구합5207 판결

A. The Plaintiff was appointed as an administrative secretary on April 22, 1985 and served as an administrative assistant belonging to the Busan Regional Employment and Labor Office B from February 27, 2012.

B. On August 23, 2010, the Plaintiff: (a) was discovered to drive a vehicle under the influence of alcohol of approximately 5 meters for about 0.079% from the roads in front of the C cafeteria located in the Kim Jong-si, Kim Jong-si to the roads in front of the D Dok-si located in the same Dong; (b) was subject to a suspension of 100 days for a driver’s license on August 26, 2010; and (c) was sentenced to a fine of KRW 700,000 for a violation of the Road Traffic Act at the Changwon District Court on February 11, 2011; and (d) the Plaintiff was not informed the Defendant of the fact of driving a vehicle under the influence of alcohol of about 5 meters due to his/her disclosure as a public official during the investigation process.

C. On March 2, 2012, the Inspector Office of the Ministry of Employment and Labor discovered a public official’s status as a public official including the Plaintiff, and concealed the status of the public official, and notified the public official of the result of the public official’s crime disposition, etc. to an agency affiliated with the Defendant including the Defendant. Accordingly, on April 30, 2012, the Defendant violated the duty to maintain dignity under Article 63 of the State Public Officials Act due to the above drunk driving, and was subject to the disciplinary action of reprimand following the resolution of the General Disciplinary Committee (hereinafter “instant disposition”).

D. On May 14, 2012, the Plaintiff asserted revocation or mitigation of the instant disposition against the instant disposition to the appeals review committee, but the said claim was dismissed on August 29, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 4 of the former Enforcement Rule of the Decree on Disciplinary Action against Public Officials (amended by Ordinance of the Ministry of Public Administration and Security No. 253, Nov. 1, 201; hereinafter referred to as the “former Enforcement Rule”) provides that disciplinary action may be mitigated in cases of public officials selected as exemplary public officials pursuant to the Regulations of Exemplary Public Officials. The proviso of Article 4 of the Enforcement Rule (amended by Ordinance of the Ministry of Public Administration and Security, No. 253, Nov. 1, 201; hereinafter referred to as the “Enforcement Rule”) of the Enforcement Rule (amended by Ordinance of the Ministry of Public Administration and Security, No. 253) of the former Enforcement Rule (amended by Ordinance of the Ministry of Public Administration and Security, No. 2011; hereinafter referred to as the “Enforcement Rule”) provides that disciplinary action in cases of drunk driving shall be mitigated only to public officials who have driven alcohol after December 1, 201

2) Even if it is not so, the instant disposition is unlawful since it is too harsh to the Plaintiff in light of the Plaintiff’s background of the Plaintiff’s public service and drinking driving, that is, the Plaintiff, who was selected as an exemplary public official, i.e., the Plaintiff singing the substitute engineer after drinking sing the driver, and driving the substitute engineer with a volume of 5 meters so that the agent can easily find the car, and thus, it is unlawful by abusing and abusing discretion.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) First of all, Article 4 of the former Enforcement Rule provides that a person in need of a resolution of disciplinary action shall be eligible for mitigation according to the criteria for mitigation, if there is a public service or a public service selected as an exemplary public official by the head of a central administrative agency (including the head of a agency equivalent to loans) or higher official in accordance with the Government Commendation Regulations, and if there is a public service or a public service selected as an exemplary public official in accordance with the exemplary public official regulations, the proviso to Article 4 of the amended Enforcement Rule of November 1, 201 excludes a person subject to mitigation. Meanwhile, Article 1 of the Addenda to the amended Enforcement Rule of the Enforcement Rule of the Enforcement Rule of the Enforcement Rule of the Enforcement Decree of the Enforcement Decree of the Enforcement Decree of the Enforcement Decree of the same Act does not stipulate that the person is subject to mitigation. Article 2(1), attached Table 1, and attached Table 1-2 of the Enforcement Rule of the Enforcement Rule of the same Enforcement Rule as the date of its promulgation, and Article 2(1) and 1-2 of the Enforcement Rule of the Enforcement Rule of the Amendment of the Enforcement Rule.

As above, Article 2(1), attached Tables 1 and 1-2 of the Enforcement Rule which increases the level of disciplinary action of drunk driving shall be separately prescribed as a public official who conducted drinking driving after the enforcement of the amended Enforcement Rule, and it does not separately stipulate the enforcement date or enforcement object of Article 4 of the amended Enforcement Rule on the grounds for exclusion from mitigation even though the subject of the application is separately prescribed as a public official after the enforcement of the amended Enforcement Rule. Thus, even before the enforcement of the amended Enforcement Rule, the disposition of this case against the plaintiff who conducted drinking driving prior to the enforcement of the amended Enforcement Rule shall not be subject to public mitigation by applying Article 4 of the amended Enforcement Rule which was in force at the

2) Next, we examine whether the instant disposition was abused or abused of discretion, and what disposition should be taken in the case of disciplinary action against a person subject to disciplinary action who is a public official is at the discretion of the disciplinary authority. However, if the disciplinary action as the exercise of discretion has considerably lost validity under the social norms and thus it is recognized that the person subject to disciplinary action has abused the discretion assigned to the person subject to disciplinary action, the disposition is unlawful. In order to deem that the disciplinary action against a public official has considerably lost validity under the social norms, the content and nature of the misconduct causing the disciplinary action, the administrative purpose intending to achieve by the disciplinary action, the criteria for disciplinary action, etc. should be considered to be objectively and clearly unfair.

(3) According to the evidence evidence No. 3 and evidence No. 2 of this case, the plaintiff, despite the fact that he/she received an exemplary public official commendation from the Prime Minister on December 31, 2008, labor administration initiative on December 31, 2003 from the Minister of Labor, and labor-management cooperation promotion initiative on December 30, 2010, and the fact that the distance of the plaintiff's drinking operation is about five meters as seen above, although considering the overall purport of arguments as a whole, the following circumstances, namely, ① the regulations on the handling of corruption by public officials (No. 247 of April 22, 2009; hereinafter the same shall apply) and [Attachment 3] Article 3 [Attachment 2] of the Act on the Punishment of Cheating by Public Officials, the plaintiff, who did not disclose his/her status as a public official once with his/her driver's license or who received a disposition of suspension of his/her driver's license twice due to drinking driving, requires the plaintiff to take disciplinary action or reprimand on the same part.

3. Conclusion

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