(영문) 부산고등법원 2012.4.27.선고 2011누4275 판결

1. All appeals filed by the plaintiff, the plaintiff, the plaintiff, and the defendant, and the defendant's appeal against the plaintiff, the second half of whom are dismissed.

2. Of the costs of appeal, the part arising between the Plaintiff ○ and the Defendant is assessed against the Defendant, and the part arising between the Plaintiff ○○ and the Defendant is assessed against the said Plaintiffs, respectively.

Purport of claim and purport of appeal

1. Purport of claim

The Defendant’s dismissal on December 15, 2009 against Plaintiff Seo-○ on December 15, 2009, and the suspension of one month against Plaintiff Nam-○ and Gangwon-do shall be revoked, respectively.

2. Purport of appeal

A. The plaintiff South ○○, and the stronger

Of the judgment of the first instance court, the part of the judgment against the plaintiff South ○○ or Gangwon-do○ shall be revoked. The defendant's disposition of suspension from office for one month against the above plaintiffs on December 15, 2009 shall be revoked.

B. Defendant

The part against the defendant in the judgment of the court of first instance shall be revoked. The plaintiff's claim is dismissed.

Reasons

1. Case issues and the judgment of the court of first instance

A. The key issue of the instant case is ① (i) the Plaintiffs’ teachers belonging to the ○○○○○○ Partnership were urged to participate in or directly participated in the First Declaration of the Union on June 18, 2009 and the Second Declaration on July 19, 2009; and (ii) the accusation against the Busan District Prosecutor’s Office violated the prohibition against collective action under Article 66(1) of the State Public Officials Act; and (iii) the violation of disciplinary reasons under Article 78 subparag. 1 of the State Public Officials Act [the duty of good faith), Article 57, and Article 63 (Duty to Maintain Dignity) of the State Public Officials Act [the duty of care] and Article 78 subparag. 1 of the State Public Officials Act [the duty of care]. (ii) If the Plaintiffs’ violation falls under the grounds for disciplinary action against the Plaintiffs, it is unlawful as the disciplinary action is deviates or abused.

B.1) As to the issue ① The first instance court rejected all the Plaintiffs’ assertion that the Plaintiffs’ misconduct constitutes “collective conduct for activities other than official duties” prohibited by Article 66(1) of the State Public Officials Act, and that the Plaintiffs’ accusation against the Busan District Public Prosecutor’s Office constitutes grounds for disciplinary action under Articles 56(Duty of Good Faith), 57(Duty of Good Faith), and 63(Duty to Maintain Dignity) of the State Public Officials Act, and that there is no grounds for disciplinary action.

2) On issues (2) The first instance court rejected the Plaintiff’s assertion that the disciplinary action against the Plaintiff ○○ constitutes a deviation or abuse of discretionary authority, and that the disciplinary action against the Plaintiff ○○, and the Plaintiff ○○○ was lawful since it did not constitute a deviation or abuse of discretionary authority, and rejected the Plaintiff ○○’s assertion.

2. The judgment of this Court and the acceptance of the judgment of the first instance court

A. First, as to whether there was a cause for disciplinary action against the Plaintiff ○○○ and Gangwon-do (the part against Plaintiff ○○, among the judgment of the court of first instance, did not determine whether there was a cause for disciplinary action against the Plaintiff ○○, since only the Defendant appealed on the part against Plaintiff ○○, among the judgment of the court of first instance), the court of first instance also held that the above Plaintiffs’ act was in violation of Article 66(1) of the State Public Officials Act (the Supreme Court Decision 2010Do6388 Decided May 14, 2012 ruled that the Plaintiff’s act was in violation of Article 66(1) of the State Public Officials Act (the Supreme Court Decision 2010Do6388 Decided May 14, 2012). In this case, the head of the branch office of the ○○○○○○○○○ Association, the head of the branch office of the branch office, and the head of the branch office of the branch office, and the head of the office of affairs.

B. Next, in light of whether the disciplinary action against the plaintiffs constitutes a deviation or abuse of discretionary power, and this court also has the same jurisdiction as the court of first instance, it seems that the disciplinary action against the plaintiff Seo-○ is too harsh in that the dismissal disposition is deprived of the teacher's status, and thus, it is difficult to view that the disciplinary action against the plaintiff Nam-○ and Gangwon-○ is a deviation or abuse of discretionary power in light of the degree of the violation and the details of the disciplinary action (one month in suspension).

C. Therefore, the reason why this case is used by the court is the same as the judgment of the court of the first instance, except for the case where the assembly and demonstration of the 8th 3th th th th th th th th th th th th 2009 "the December 15, 2009" is "the 15th th th th th th th 2009", and the 8th th th th th th th th th th th th th "the assembly of teachers and public officials" as "the assembly of the th th th th th th th th th th th th

3. Conclusion

Therefore, the judgment of the court of first instance is just, and all appeals filed by the plaintiff South ○○ and Gangwon ○ and the defendant and appeals filed by the defendant against the plaintiff Seo-O are dismissed. It is so decided as per Disposition.