(영문) 서울고등법원 2010.7.16. 선고 2009누38499 판결

The judgment of the first instance shall be revoked. The defendant's removal from his position against the plaintiff on November 19, 2008 shall be revoked.

Reasons

1. Quotation of judgment of the first instance;

The reasoning of this case is that the court's appeal was dismissed on May 13, 2010, and the final appeal was made on November 30, 2009. Meanwhile, the Central Disciplinary Committee rendered a three-month decision of suspension against the plaintiff on November 30, 2009. Accordingly, the defendant stated "(7) 24, 26, 27, 294, 36, 245, 37, 275, 47, 275, 36, 47, 207, 47, 207, 47, 200, 2000, 200, 200, 200, 206, 200, 200, 200, 516, 516, 24, 36, 36, 37, 25, 37, 204, 36, 36, 47, 4, 27, 4."

2. Determination on addition

(1) The Plaintiff asserts that the criteria for disciplinary action in attached Table 1 of the former Enforcement Rule of the Act on Disciplinary Action of Public Officials include a heavy and gross negligence, or a minor and intentional act without any relation to the specific circumstances, and that the person having authority over disciplinary action is subject to heavy disciplinary action, which is bound by the above provision, even in the case of minor violation of the duty of good faith and the duty of maintaining dignity, it infringes on the freedom of choice of occupation guaranteed by the Constitution, the right to hold public office, and there is no delegation provision concerning the criteria for disciplinary action in the State Public Officials Act and the Public Officials Disciplinary Ordinance, which is in violation of the principle of prohibition of comprehensive delegation under the Constitution.

However, when a disciplinary measure is taken against a person subject to the disciplinary measure who is a public official, it shall be at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure is unlawful only when the person having authority to take the disciplinary measure has considerably lost validity under the social norms. If a disciplinary measure against a public official has considerably lost validity under the social norms, it should be determined that the contents of the disciplinary measure can be objectively and clearly deemed unreasonable in light of various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, and the criteria for the determination of the disciplinary measure (see, e.g., Supreme Court Decision 2002Du6620, Sept. 24, 2002). In light of the above legal principle, the above criteria for a disciplinary measure are merely one of the criteria for exercising discretion in imposing a disciplinary measure against the person subject to the disciplinary measure, and the criteria for imposing a disciplinary measure against the person having authority to take the disciplinary measure cannot be applied to the above criteria for disciplinary measure. Therefore, the plaintiff's argument that the above criteria for disciplinary measure is unreasonable.

(2) The plaintiff abused his/her right to audit and investigate the plaintiff's petition for the appeal against the plaintiff, without investigating the abuse of authority against the public official of the office of Yeongi-gun, clans day, family affairs, etc. The plaintiff committed a tort focusing on his/her privacy, including abuse of authority, clans day, family affairs, etc. The plaintiff forced B to make a false statement and received a false statement, and made a heavy disciplinary action based on this. The plaintiff asserted that the disposition of this case based on the abuse of his/her

However, each statement of evidence Nos. 6, 32 and some testimony of the party witness B, which the defendant abused his/her right to audit and inspection and forced the defendant to make a false statement to B, do not believe it, and there is no other evidence to acknowledge the plaintiff's above assertion. Therefore, the plaintiff's above assertion is without merit.

(3) The plaintiff asserts that since the defendant demanded a resolution of disciplinary action on September 5, 2008 under Article 9(1) of the Public Officials Disciplinary Decree, the time limit for the resolution is until December 3, 2008, which is the 90th day thereafter, and that the provisional measure, which is a provisional measure, was maintained until August 13, 2009 without any specific ground even though the provisional measure was taken on November 19, 2008 when the resolution was requested, the disposition of this case is unlawful since the defendant exceeded its discretion, and it is obvious in light of the fact that the defendant still did not pass the resolution of disciplinary action against the plaintiff, even though the defendant did not go through the resolution of disciplinary action against the plaintiff.

Article 9(1) of the former Public Officials Disciplinary Decree (amended by Presidential Decree No. 21351, Mar. 18, 2009; hereinafter the same) provides that a disciplinary committee shall make a disciplinary decision within 30 days (60 days in the case of the Central Disciplinary Committee) from the date of receipt of a written request for a disciplinary decision, and that the period may be extended by up to 30 days upon the resolution of the relevant disciplinary committee if there are extenuating circumstances. However, in the case of removal from position, there is no ground to deem that the effective period of the disposition is determined, and so long as the disposition in this case is entirely separate from the disciplinary action upon the above request for a disciplinary decision, the disciplinary action upon the above request for a disciplinary decision was not made within the period prescribed in the above provision, and thus, it cannot be deemed unlawful. Accordingly, the plaintiff's above assertion has no merit.

(4) On September 5, 2008, the Plaintiff asserted that the instant disposition was unlawful, inasmuch as the Defendant had requested a resolution on disciplinary action against the Plaintiff on September 5, 2008, but did not send the written request for disciplinary action to the Plaintiff in violation of Article 7(7) of the Public Officials Disciplinary Decree.

However, the instant disposition was taken as a provisional measure following the request for a heavy disciplinary resolution against the Plaintiff, and the issue of sending a written request for disciplinary resolution on the original disciplinary case requiring a disciplinary resolution does not affect the validity of the instant disposition. Therefore, the Plaintiff’s above assertion is groundless.

(5) The Plaintiff asserts that the instant disposition, which was conducted on the premise that there was a cause for heavy disciplinary action, cannot be deemed to constitute a cause for heavy disciplinary action, unlike the grounds for disciplinary action stated at the time of the request for a disciplinary resolution.

However, the instant disposition was made on the basis of the provision that "it may not assign a position to a public official in need of a resolution of dismissal, dismissal, or suspension of office." Thus, inasmuch as it is determined at the time of the instant disposition to satisfy the requirements of the above provision, it shall be deemed a legitimate disposition (in fact, the Plaintiff was subject to a heavy disciplinary measure for three months of suspension from office). Accordingly, the Plaintiff’s assertion is without merit.

(6) The plaintiff's act is deemed as a ground for heavy disciplinary action, and in fact, the plaintiff's act constitutes a ground for heavy disciplinary action, but in fact, the plaintiff's act was lent the name of a clan to preserve the family's property, and the private work was not entered in the work status register, but it did not constitute a ground for heavy disciplinary action. Thus, the plaintiff's disposition of this case is in violation of the principle of proportionality and the principle of equality.

However, as seen earlier, it is deemed that the Plaintiff, who is a public official working for the central government department, in the position of enforcing the law, committed an act subject to criminal punishment in violation of the current law, constitutes a heavy disciplinary ground. Therefore, the instant disposition taken by the Defendant under such judgment cannot be deemed as violating the principle of proportionality and the principle of equality. The Plaintiff’s assertion is without merit.

(7) The plaintiff did not consider the fact that the plaintiff won a lot of commendation, such as the Green Support Order, in the course of rendering the instant disposition. Thus, the plaintiff asserted that the instant disposition was unlawful in violation of Article 17 of the Public Officials Disciplinary Decree.

Article 17 of the Decree on Disciplinary Action against Public Officials provides that when a disciplinary committee makes a decision on a disciplinary action, the disciplinary action shall take into account the person under disciplinary action's merits of his performance record, the details of the request for disciplinary action, and other circumstances. However, the instant disposition is conducted based on the provision that "no position may be assigned to a public official for whom a disciplinary decision corresponding to dismissal, dismissal, or suspension from office is required," and it is distinct from the original disciplinary action in accordance with the request for a disciplinary decision. Thus, even if the pertinent disposition did not take into account the examples of the above provision, such circumstance alone cannot be deemed unlawful. The Plaintiff's above assertion is without merit.

(8) Although the Plaintiff requested the instant disciplinary resolution and notified the Plaintiff that the instant disciplinary resolution would be conducted without being released from position, the Plaintiff’s claim that the instant disposition was unlawful as it violated the good faith principle.

However, there is no evidence to acknowledge the Plaintiff’s assertion that the Defendant notified the Plaintiff that he would not be released from position. The Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is just as it is concluded, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.