(영문) 부산지방법원 2016.8.11. 선고 2015구합2766 판결

1. Of the instant lawsuit, the part concerning the claim for the cancellation of removal from position on April 21, 2015 is dismissed. 2. All of the Plaintiff’s remaining claims are dismissed.

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

Purport of claim

The defendant's disposition of removal from his/her position on April 21, 2015, removal from his/her position on June 19, 2015, and reduction of his/her salary on July 13, 2015 against the plaintiff shall be revoked respectively.

Reasons

1. Details of the disposition;

A. At the time of December 18, 1981, the Plaintiff was appointed as an administrative secretary to the B Office in the Ministry of Labor, and from February 28, 2014, the Plaintiff served as a labor inspector from the Busan Regional Employment and Labor Office’s work improvement guidance division. B. On April 21, 2015, the Defendant released the Plaintiff’s position pursuant to Article 73-3(1)2 of the State Public Officials Act (hereinafter “instant dismissal disposition”).

C. On June 18, 2015, the Ministry of Employment and Labor conducted an investigation into the Plaintiff, and then notified the Plaintiff of the request for a mid-term disciplinary decision to the Busan Regional Employment and Labor Office. On June 19, 2015, the head of the Busan Regional Employment and Labor Office requested a mid-term disciplinary decision to the Plaintiff on the ground of the act of misconduct, such as the attached Tables 2 through 7 (hereinafter “instant misconduct”). On June 19, 2015, the Defendant released the Plaintiff’s position pursuant to Article 73-3(1)3 of the State Public Officials Act on the ground of the request for a mid-term disciplinary decision (hereinafter “the second removal”).

D. On July 13, 2015, the Defendant, following a resolution of the Ordinary Disciplinary Committee of the Busan Regional Employment and Labor Agency, was subject to disciplinary action for the Plaintiff for two months of salary reduction (hereinafter “instant disciplinary action”).

E. Meanwhile, on May 19, 2015, the Plaintiff filed a petition review with the Ministry of Personnel Management seeking revocation of the instant first removal from position, but the said committee dismissed the Plaintiff’s petition review on August 17, 2015. In addition, the Plaintiff filed a petition review with the Ministry of Personnel Management Review Committee seeking revocation of the instant second removal from position on July 16, 2015 and a petition review seeking revocation of the instant disciplinary action on August 7, 2015. However, the said committee dismissed the Plaintiff’s petition for appeal review on October 19, 2015.

[Reasons for Recognition] In the absence of a dispute, evidence Nos. 1, 2, 1, 3, and 10 of the 2015-Gu 2766 case, evidence Nos. 1, 3, and 10 of the 2016-Gu 194 case, evidence Nos. 1, 2, 1, and 3 of the 2016-Gu 194 case, and the purport of the whole pleadings

A. Defendant’s defense prior to the merits

Since the removal from the first removal from position was implicitly withdrawn due to the second removal from position, there is no interest in the lawsuit to seek revocation of the removal from the first removal from position.

B. Determination

It is reasonable to view that an administrative agency explicitly withdrawn the removal from the position before the removal from the position based on the ground for new removal from the position. As such, it is unlawful as there is no legal interest in the lawsuit (see, e.g., Supreme Court Decision 2003Du5945, Oct. 10, 2003). In this case, the Defendant issued the first removal from the position to the Plaintiff on April 21, 2015 pursuant to Article 73-3 (1) 2 of the State Public Officials Act, but requested a heavy disciplinary resolution against the Plaintiff on June 18, 2015, the first removal from the position to the Plaintiff on June 19, 2015, and therefore, it is reasonable to deem that the first removal from the position was explicitly withdrawn, and the first removal from the position to the Plaintiff on June 19, 2015, the first removal from the position to the Plaintiff on the ground that there is no interest in the Defendant’s lawsuit prior to the removal from the position.

3. Whether the removal from the position of the second case and the disciplinary action in this case are legitimate

A. The plaintiff's assertion

1) In relation to the act of violating the duty to maintain dignity, the Plaintiff made a statement to the effect that he/she has the characteristic of art with respect to his/her subordinate employment, referring to the relevant contents of the thesis of the Seoul High Labor Law Research Council and the Korea Labor Law Association, after completion of the investigation, on the premise that he/she was private, and did not intentionally or intentionally make a statement related to labor.

2) With respect to the misconduct in breach of the duty of good faith, most of the improper processing parts of the report case are cases that are terminated by mutual agreement. The improper processing part of the report case is that the business owner requested the extension of the corrective period and extended two weeks for justifiable grounds. The portion of the phone tamping omitted on the withdrawal of the reporter is mostly recorded and completed before the civil petition processing, and most of the telephone tamping part on the withdrawal of the reporter is delayed due to unavoidable reasons or concurrent handling, etc., and the portion of the approval is delayed due to reasons such as the failure to report. The Plaintiff did not violate

3) Since the violation of the Plaintiff’s duty to maintain dignity is weak and transitional, it is unlawful for the Defendant to take the second disposition of removal from position and the instant disciplinary action on the ground that the head of the Busan Regional Employment and Labor Office requested a disciplinary decision among the branch officers of the Korea Employment and Labor Office, even though not subject to heavy disciplinary action.

4) The Plaintiff had already been subject to minor disciplinary action from the head of the Busan Regional Employment and Labor Office, due to his remarks related to old times. The instant disciplinary action constitutes double disciplinary action. The Defendant’s ground for violation of the duty of good faith, which was caused by the instant disciplinary action, is based on the result of the emotional audit against the Plaintiff, and the instant disciplinary action is unreasonable in this regard.

5) The Plaintiff did not have been subject to a disciplinary action for about 34 years, and was selected as a person with merit of labor supervision in 2014. The instant misconduct constitutes a case where the degree of misconduct is weak and has passed, and the case related to the violation of the duty to maintain dignity was concluded by mutual agreement between the parties. Considering these circumstances, the instant disciplinary action is excessively heavy.

(b) Related statutes;

Attached Table 1 shall be as stated in the relevant statutes.

C. Facts of recognition

The following facts are acknowledged in full view of each of the aforementioned evidence, evidence Nos. 2, 4, and 6 of the 2015Guhap2766 cases, evidence Nos. 5, and evidence Nos. 2, 4, 5, and 11 of the 2016Guhap194 cases, and the purport of the whole pleadings as a result of regeneration.

1) On October 15, 2014, D and seven others filed a petition against E related to overdue debts, and the Plaintiff as a labor inspector was in charge of the said case.

2) On March 20, 2015, the Plaintiff made a statement to the petitioner representative D as described in attached Table 8 (hereinafter “instant statement”) in the process of the second petition investigation.

3) Around March 27, 2015, D filed a civil petition with the Ministry of Employment and Labor to the effect that the Plaintiff was urged the Plaintiff to investigate the instant speech, through the F Internet People’s Newspapers. On March 30, 2015, the Plaintiff submitted a statement of particulars concerning the instant speech to the Busan Regional Employment and Labor Office. The head of the Busan Regional Employment and Labor Office C Branch requested the Plaintiff to pay attention to the Plaintiff on March 30, 2015, following an interview and investigation with the Plaintiff.

4) After that, the Plaintiff’s instant remarks were broadcasted through GBS news9, and were reported in series with the title “H” in various media, including KBS.

5) After the above broadcasting and news reports, the Defendant issued a disposition to release the Plaintiff from the first position. After examining whether the Defendant violated the duty to maintain dignity following the instant speech of the Ministry of Employment and Labor with respect to the Plaintiff, and whether the instant misconduct, including the instant speech, was subject to the request for disciplinary decision, the removal from the second position, and the instant disciplinary action in order.

D. Whether the removal from the second disposition of this case is legitimate

1) The removal from position under Article 73-3 (1) 3 of the State Public Officials Act is a separate disposition that differs from the disciplinary action, which is a punitive measure, because the purpose of the removal from position is to prevent a specific risk of undermining the fairness of the performance of official duties and the trust of the people, if a state public official who is in need of a resolution of dismissal, removal, demotion, or suspension from position continues to hold a position and perform his/her duties.

Therefore, in light of the purpose of the system of removal from position, etc., the legality of removal from position based on the grounds under Article 73-3(1)3 of the State Public Officials Act ought to be determined by taking into account the specific circumstances, such as whether the pertinent state public officials are highly likely to undergo a resolution of dismissal, dismissal, demotion, or suspension from office, and whether the pertinent state public officials continuously perform their duties causes danger to fair performance of official duties (see, e.g., Supreme Court Decision 2012Du25552, Oct. 30, 2014).

2) In the instant case, the Minister of Employment and Labor broadcasted on the part of the violation of the duty to maintain dignity among the instant wrongful acts. After investigating the Plaintiff, the Audit Office of the Ministry of Employment and Labor notified the Plaintiff of the request for a mid-term disciplinary decision to the Busan Regional Employment and Labor Office. On June 18, 2015, the head of the Busan Regional Employment and Labor Office requested a mid-term disciplinary decision against the Plaintiff to the Busan Regional Employment and Labor Office. As seen earlier, it appears that there was high probability that the Plaintiff would be subject to a disciplinary decision corresponding to removal, removal, demotion, or suspension from office at the time of the second removal from office, and that there was a possibility that the Plaintiff could be in danger of fair performance of official duties. Accordingly, as seen earlier, the Plaintiff’s assertion seeking the cancellation of removal from office cannot be seen as unlawful merely on the ground that some of the instant improper acts were not recognized after the second removal from office.

E. Whether to recognize the grounds for disciplinary action of the instant case

1) Violation of the duty to maintain dignity

(A) officials serving for the entire people by being widely entrusted with official duties from the people;

Considering the status of a public official’s act detrimental to dignity is likely to undermine the public’s trust as well as the person in question. Thus, all public officials shall not commit any act detrimental to their dignity, regardless of whether it is a matter of duty or not, pursuant to Article 63 of the State Public Officials Act and Article 55 of the Local Public Officials Act, regardless of whether it is a matter of duty. Here, the person’s dignity refers to a person who is a sovereign member and has not been influenced as a matter of duty (see, e.g., Supreme Court Decisions 2011Du2079, Sept. 12, 2013; 97Nu18172, Feb. 27, 1998).

B) In the instant case, comprehensively taking account of the following circumstances acknowledged by the aforementioned facts of recognition, the evidence as seen earlier, the evidence Nos. 7 and 2766 of the 2015Guhap2766, and the overall purport of the statements and arguments Nos. 3 and 4 of the 2016Guhap194, it is reasonable to deem that the Plaintiff violated the duty to maintain dignity by speaking in the instant case.

① In the paper of the Seoul Labor Law Research Council (I, J, and Labor Law Research 2003 second half of the second half of the second half of the second half of the year of 2003), the Plaintiff’s assertion that it was referenced in the instant speech, there is only the content of labor contract, i.e., labor contract, and the thesis of the Korea Labor Law Association (K, L, Labor Law School No. 16, June 2003), which was enacted on the basis of the concept of Roman law, only the content of labor contract under the Rome law, such as that the employee leased himself/herself as he/she leased his/her own honor as he/she leased his/her own as he/she leased his/her own as he/she was she was able to be considered as a free employment contract relationship in Germany, and it is not revealed that there was a fact that most of the judgment on the employee status in Germany was an issue of whether it is a subordinate employment contract relationship.

② A party to the instant statement appears to have filed a petition claiming the payment of wages, retirement allowances, etc. by asserting that he/she is an employee of the Internet opening/repair business place, who is the other party to the instant statement, as the employee of the said Internet opening/repair business place. The Plaintiff repeated the Plaintiff’s statement made immediately after the instant investigation with D, to the effect that he/she has a sacratic nature, and that the purpose of D’s petition is not the recognition of the employee status, but the purpose of D’s petition is not the recognition of the employee status. It is sufficient to view that the Plaintiff’s statement is sufficient to obtain the employee status as well as that of the employee, and it cannot be deemed that the Plaintiff’s statement was merely an expression of the employee status, as alleged by the Plaintiff.

2) Article 37(1) of the Labor Inspector Work Regulations for Report-Related Cases (amended by Ordinance of the Ministry of Employment and Labor No. 127, Aug. 1, 2014; hereinafter “Office Work Regulations”) provides that, when a labor inspector has been designated to deal with a report-related case, he/she shall investigate and process the reported case rapidly, kind, and fairly. Article 40(1) of the Work Regulations provides that, when a report-related case is found to have violated the law as a result of the investigation, he/she shall issue a corrective order without delay. Article 40(5) of the Work Regulations provides that, where a labor inspector fails to comply with a request by a labor inspector for attendance at least twice in order to hear the reporter’s statement, he/she may issue a corrective order and terminate internal investigation if he/she fails to comply with the request by the labor inspector at least twice, and Article 37(1) of the Work Regulations provides that the Plaintiff is deemed to have violated the duty of care of the entire report-related labor inspector’s report-related case No. 11 through No.78.

3) Follow-up measures following the supervision of the workplace;

Article 21(2) of the Work Regulations provides that a labor inspector shall issue a correction order specifically stating the above matters, method, and deadline for correction with respect to a violation subject to correction. Article 21(4) of the same Act provides that the period of correction may be extended if an employer makes a request for extension of the period of correction due to an unavoidable cause not to correct it within the prescribed period. In full view of the purport of the entire pleadings in the statement in the evidence No. 2015Guhap2766 case No. 19, Sept. 5, 2014, the Plaintiff did not take measures such as extension of the period of correction by September 19, 2014, which was the date of correction, after September 5, 2014, the date of correction, which was the date of correction, and thus, the Plaintiff violated its duty of good faith in violation of Article 21 of the Work Regulations.

4) Article 37(7) of the Regulations on the Omission of Calling away from the reporter’s withdrawal provides that a labor inspector shall prepare the details of confirmation of facts, such as telephone in attached Form 6, if he/she confirms facts by telephone, etc., and comprehensively takes account of the overall purport of pleading in the statement No. 20 of the case No. 2015Guhap2766, the Plaintiff handled each reported case No. 1 through No. 7 of attached Table 5, and handled the case in the same manner as the corresponding statement. Accordingly, the Plaintiff shall be deemed to have breached its duty of good faith in violation of Article 37(7) of the Regulations on the Management of Home Affairs.

5) Article 37(1) of the Regulations on Duties of Neglecting Reporting Cases provides that when a labor inspector has been designated to deal with a reported case, he/she shall promptly, kindly, process, and accurately investigate and process the reported case with respect to the reporter’s report details. In full view of the overall purport of the pleadings in each of the evidence Nos. 21, 22, and 2015Guhap2766 Cases No. 21, 222, and 2016Guhap194 Cases No. 111, it is acknowledged that the Plaintiff did not take any particular measure for handling each reported case as stated in the separate sheet No. 6, No. 1, and No. 211, the Plaintiff breached its duty of good faith. Accordingly, the Plaintiff breached its duty of care in violation of Article 37(1) of the said Regulations.

6) Article 11 of the Ministry of Employment and Labor for one approval and the Regulations on the Delegation Decision of the Ministry of Employment and Labor and its affiliated agencies (Ordinance No. 113 of the Ministry of Employment and Labor, December 31, 2013) provides that when the approving authority is unable to approve on the grounds of leave, business trip, or other reasons, a person acting on behalf of the authority responsible for performing his/her duties may pass a resolution. In full view of the overall purport of the pleadings in each item of the evidence No. 23 and No. 24 of the 2015 Guhap2766 case, the Plaintiff prepared a document as shown in Attached No. 7 No. 1 through No. 5, and obtained one approval by acting on behalf of the director, but the above facts alone are insufficient to recognize that the director who was the approving authority at the time of the draft and draft of each document were in a state where he/she could obtain approval on the one person in violation of the above provision, and there is no other evidence to recognize that the Plaintiff approved

7) As to the Plaintiff’s remaining arguments regarding the grounds for disciplinary action

A) We examine the Plaintiff’s assertion that the instant disciplinary action constitutes double disciplinary action, and the fact that the head of the Busan Regional Employment and Labor Office urged the Plaintiff to take a caution on March 30, 2015 according to the Plaintiff’s civil petition regarding the instant speech, as seen earlier. However, the demand measures of caution are merely a recommendation or guidance for work, and do not constitute a disciplinary action under the State Public Officials Act that affects the Plaintiff’s status as a state public official. Accordingly, the Plaintiff’s assertion on the premise that the demand measures of caution fall under double disciplinary action is without merit.

B) We examine the Plaintiff’s assertion that the Defendant’s act of violating the duty of good faith, which is the grounds for disciplinary action of this case, was based on the result of the Plaintiff’s emotional audit, and that the Ministry of Employment and Labor’s office, after media reports such as broadcasting, investigated the Plaintiff’s instant remarks, including the instant remarks, was conducted by the Plaintiff. However, there is no evidence to prove that the above investigation was conducted through the so-called emotional audit. Rather, Article 6(4) of the Ministry of Employment and Labor’s Audit and Inspection Regulations of the Ministry of Employment and Labor provides that an oral audit may be conducted in the event of a violation of the duty of service, accident, or illegality by the employees belonging to the Ministry of Employment and Labor. Since the investigation by the Ministry of Employment and Labor of the Plaintiff was conducted pursuant to the above provisions after the report on the instant remarks, this part of the Plaintiff’

8) Sub-determination

Ultimately, among the instant misconducts, the remainder of the misconducts except for the misconducts listed in the attached No. 7 No. 1 through 5 (hereinafter referred to as "recognized misconducts") can be deemed legitimate disciplinary reasons.

F. Whether disciplinary action of the instant disciplinary action is appropriate

1) Whether to take a disciplinary measure against a person subject to disciplinary action, who is a public official, is at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure is unlawful only when it is recognized that a person having authority to take the disciplinary measure has abused the discretionary power that has been entrusted to the person having authority to take the disciplinary measure since the person having authority to take the disciplinary measure has substantially lost validity as a matter of social norms. In addition, even if some of the grounds for disciplinary measures are not recognized, if it is sufficient to recognize the validity of the disciplinary measure only by some other grounds recognized, the disciplinary measure can be maintained (see, e.g., Supreme Court Decision 2009Du1914

2) In the instant case, in light of the following circumstances acknowledged by the health care program, as to whether the disciplinary action on the recognized misconduct in February of salary reduction was appropriate, each steam, 2015Guhap2766 cases, Eul evidence No. 9, and the purport of the entire pleadings, even if considering the circumstances alleged by the Plaintiff, the instant disposition against the Plaintiff was too excessive compared to the degree of the relevant misconduct, and thus, it cannot be deemed unlawful by abusing or abusing discretionary authority. Accordingly, this part of the Plaintiff’s assertion is without merit.

① Although the Plaintiff, as a labor inspector, is in a position to protect the working conditions so that workers may have an equal relationship with the employer, the Plaintiff violated his/her duty to maintain dignity and caused social controversy. The frequency and content of violation of his/her duty to maintain good faith as a labor inspector is also not easy.

In light of the situation at the time of the Plaintiff’s speaking in this case, the other party, the contents and frequency of improper remarks, and the attitude of the Plaintiff’s speaking in this case, the violation of the duty to maintain dignity due to the instant remarks is serious and intentional or gross negligence. However, the instant disciplinary action was taken against the Plaintiff for February of the salary reduction corresponding to the minor disciplinary action, even though the degree of the violation of the duty to maintain dignity is serious and gross negligence is severe according to the public official’s disposition standards. This is due to the fact that the grounds for the Plaintiff’s assertion of disciplinary action were considered.

③ Since the reported case related to the violation of the duty to maintain dignity, among the recognized misconduct, has been agreed between the petitioner and the employer, the above reported case has not been concluded, and D, the other party to the speech of this case, has not agreed with the Plaintiff in relation to the speech of this case, or has not sought the Plaintiff’s preference.

4. Conclusion

Thus, the lawsuit of this case concerning the cancellation of removal from the first lawsuit of this case is unlawful. Thus, the plaintiff's remaining claims are dismissed. It is so decided as per Disposition.