(영문) 서울행정법원 2016.8.11.선고 2015구합77868 판결

The defendant's disposition is revoked on April 231, 2015, the reduction of salary for the plaintiff and twice of the surcharge for the plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a public official serving as the officer of maritime affairs and fisheries in the Ministry of Oceans and Fisheries, and was appointed as the captain of a ship on September 28, 1994, from February 24, 201 to February 28, 2013, from the 2011, to the 2012 World EXPO Organization Committee, and from April 8, 2013 to April 6, 2014, the Plaintiff served in the Maritime Logistics Department B of the Ministry of Oceans and Fisheries respectively, and from September 2, 2014 to the Ministry of Oceans and Fisheries in the Department of Maritime Safety C of the Ministry of Oceans and Fisheries.

B. On April 10, 2015, the Defendant: (a) upon the resolution of the Central Disciplinary Committee, deemed that the Plaintiff violated Article 61(1) and Article 78-2 of the former State Public Officials Act (amended by Act No. 13288, May 18, 2015; hereinafter referred to as the “National Public Officials Act”); (b) deemed that the Plaintiff breached the duty of integrity; (c) was punished by the reduction of the Plaintiff’s salary for February and the second half of the disciplinary penalty (hereinafter referred to as “64,688 won”) (hereinafter referred to as “the instant disciplinary cause”); and (d) on the ground that the Plaintiff received entertainment equivalent to the total amount of KRW 668,688, including four times of golf entertainment, meal, etc.; and (e) on the basis of two months of the amount of meals and two times of the disciplinary penalty (hereinafter referred to as “the instant disciplinary cause”); and (d) on the ground that the Plaintiff violated Article 78(1) and Article 78-2 of the State Public Officials Act.

The list of sights shall be made.

A person shall be appointed.

C. The Plaintiff dissatisfied with the instant disposition and filed a request for review with the Ministry of Personnel Management, but was dismissed by the said appeals review committee on August 9, 2015.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) Absence of grounds for disciplinary action

The Plaintiff had worked for the period of golf meetings related to the instant disciplinary cause was the Organizing Committee for the EXPO 2012 Yeosu Korea and the Ministry of Oceans and Fisheries having no duty relationship with the Korean National Maritime Affairs and Fisheries. Of 33 general officials of the Ministry of Oceans and Fisheries (ship general official) in total, the Plaintiff did not have a duty relationship with the Korean Maritime Affairs and Fisheries (in relation to the grounds for the disciplinary action Nos. 1 and 2, the Plaintiff did not comply with the golf meetings upon request of the Ministry of Oceans and Fisheries to provide transportation convenience for the loans of the Ministry of Oceans and Fisheries. Regarding the grounds for the disciplinary action Nos. 3, 4 and 5, the Plaintiff did not think of the golf meetings as a friendship group with the Korean university's motive or line, and did not expect that the Plaintiff would attend the said golf meetings or pay the golf expenses at the Korean 0th level or at the expense of the Korean 0th level 10th 6th son 60th son 60th son 60th son 60th son 60th son.

(ii) the deviation and abuse of discretionary power;

The Plaintiff served in good faith as a public official, such as commendation by the Minister of Land, Transport and Maritime Affairs and awarding presidential commendation for about twenty (20) years, and there was no illegal solicitation from Korean-ranking employees at the time of a golf meeting and thereafter thereafter, and the instant disposition was made in accordance with the former Enforcement Rule of the Decree on Disciplinary Action against Public Officials (amended by Ordinance of the Ministry of Security and Public Administration No. 91, Sept. 2, 2014; hereinafter referred to as the “Enforcement Rule of the Decree on Disciplinary Action against Public Officials”), in full view of all the circumstances, including the excessive amount of disciplinary determination, etc., the instant disposition

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the existence of grounds for disciplinary action

Article 61(1) of the State Public Officials Act provides that no public official may give or receive any reward, donation or entertainment, whether directly or indirectly, in connection with his/her duties, and the purport thereof is that a public official is entitled

In order to prevent unlawful solicitation in relation to official duties, rather than to prevent such unlawful solicitation, it is intended to protect the integrity of public officials and the misappropriation of official duties and to ensure the propriety of public officials’ performance of duties by preventing receipt of money and valuables related to official duties without prior request or time of receipt of money and valuables (see, e.g., Supreme Court Decisions 97Nu16794, Jan. 23, 1998; 198Du12383, Nov. 1, 27, 1998). In addition, duties under Article 61(1) of the State Public Officials Act shall not be deemed to include the scope of duties performed in the past or in the future without regard to whether there was an unlawful solicitation, or when there was a time of receipt of money and valuables, etc. (see, e.g., Supreme Court Decisions 91Do364, Feb. 28, 1992; 207Do364, Feb. 28, 197). 197

In light of the following circumstances, it is reasonable to deem that the instant disciplinary cause occurred in relation to the Plaintiff’s duties in light of the facts acknowledged earlier, the evidence as seen earlier, the evidence evidence No. 5, and the evidence No. 1 as stated in the evidence No. 1, and the purport of the entire pleadings, and the following circumstances are comprehensively taken into account. The instant disciplinary cause does not constitute a case where the Plaintiff’s act of cutting golf or eating with golf as stated in the instant disciplinary cause is merely a price for the Plaintiff’s duties, or where it can be clearly acknowledged that the Plaintiff was due to the need for training due to personal relationship.

(1) Under Article 60 (2) and (4) of the Ship Safety Act, the Minister of Oceans and Fisheries may, with approval from the Minister of Oceans and Fisheries, have a corporation designated and publicly announced by the Minister of the registration of a ship and evaluation on seaworthiness to take out and maintain ship insurance, carry out on his/her behalf the affairs concerning shipbuilding inspection, ship inspection, approval of drawings, etc. (hereinafter referred to as "inspection, etc.") falling under each subparagraph of Article 60 (1) of the Ship Safety Act, limited to the ships registered or intended to be registered in the registry managed by the relevant classification corporation. In such cases, the Minister of Oceans and Fisheries shall conclude an agreement as prescribed by Presidential Decree, and when the classification corporation carries out inspection, etc., he/she shall establish a self-inspection regulation and obtain approval from the Minister of Oceans and Fisheries. D, which is a entertainment provider of the causes of the instant disciplinary action, was the K of the Korean level, and H was M, and the Korean level was the corporation under the Ordinance of the Ministry of Oceans and Fisheries (Ministry of Land, Transport and Maritime Affairs at the time of the Korea Ship Safety Act).

③ From March 18, 2008 to February 24, 2011, 2011, the Plaintiff worked in the Maritime Safety Policy Office of the Ministry of Land, Transport and Maritime Affairs (Ministry of Land, Transport and Maritime Affairs), which is the direction and supervision department for Korean Classification, for about two years and 11 months, from March 18, 2008 to the Organizing Committee for the said Federation. From April 7, 2014, the Plaintiff worked in the Maritime Safety Policy Office of the Ministry of Oceans and Fisheries, which is the direction and supervision department for Korean Classification. Even if the Plaintiff did not engage in business directly related to Korean Classification at the time of the instant disciplinary cause, it is likely that the assignment to a department that may affect Korean Classification would at any time be changed to a department that is directly related to Korean Classification.

④ On July 22, 2014, at the time of the investigation conducted by the public prosecutor belonging to the Busan District Public Prosecutor’s Office, the Plaintiff recognized that golf expenses were paid to the Korean public prosecutor’s card with regard to the instant disciplinary cause, and thus, the Plaintiff received a contact from the Korean public prosecutor’s office to the effect that the business convenience is well considered.

2) Whether the disposition in this case is an abuse of discretionary authority against a person subject to disciplinary action, who is a public official, should be subject to disciplinary action in the discretion of the person having authority to take the disciplinary action. However, if the disciplinary action taken by the person having authority to take the disciplinary action as the exercise of discretionary authority is deemed to be an abuse of discretionary authority, it shall be deemed that the disposition is unlawful, and if it is deemed that the disciplinary action against a public official has considerably lost validity under the social norms, it shall be determined according to specific cases.

When determining the contents and nature of the misconduct causing disciplinary action, administrative purpose intended to be achieved by disciplinary action, criteria for disciplinary action, etc., the details of the disciplinary action should be considered as clearly unreasonable objectively (see, e.g., Supreme Court Decision 2014Du35799, Jun. 6, 2014).

In light of the above legal principles, the following circumstances acknowledged by comprehensively taking account of the evidence and the overall purport of oral argument as seen earlier: ① the Plaintiff’s act subject to disciplinary action as a superior public official belonging to the position of the Ministry of Oceans and Fisheries requires a higher level of integrity in relation to his/her duties, and thus his/her employee’s model. ② In particular, the grounds for disciplinary action of this case include golf contacts from the employees of the Plaintiff who are related to his/her duties, and the degree of the Plaintiff’s breach of duty is not minor in light of the frequency and degree of the act; ③ The golf gathering of the grounds for disciplinary action of this case seems to be likely to cause doubts about the Plaintiff’s fair performance of his/her duties; ④ The Defendant is necessary to take appropriate measures to recover trust and prevent recurrence; ④ The Plaintiff’s act subject to disciplinary action violates the duty of integrity; ④ Article 2(1) [Attachment 1] of the Enforcement Rule of the Act on Punishment of Public Officials, which provides that the Plaintiff’s act of giving and receiving disciplinary punishment of this case is difficult to be considered as disciplinary punishment of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.