2010Guhap5791 Revocation of Disposition of revocation of dismissal

RAW (74 years old, women)

Hanam-si Hahnam-si

Law Firm 0.1

Attorney Kim Jong-soo

Hanam Market

Law Firm Doz.

[Defendant-Appellee]

April 14, 2011

May 19, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s dismissal disposition against the Plaintiff on October 21, 2009 is revoked.

1. Details of the disposition;

A. The plaintiff's status

The plaintiff is a vice-chairperson of the National Democratic Public Officials' Union (hereinafter referred to as the "Public Officials' Union") as a local administrative secretary who was appointed as Grade 9 local administration on August 9, 199 and worked in the Hanam-si Autonomous Affairs Bureau from June 9, 1999.

B. Declarations by Korean Teachers' Unions

(1) On June 18, 2009, the Korean Teachers’ Union (hereinafter referred to as the “former Teachers’ Union”) announced the Assembly’s notice under the name of 16,171 of teachers affiliated with the previous school under the name of 16, and 171.

(2) The Assembly and Demonstration Act refers to the investigation of candlelight off demonstration, the investigation of PD pocket book, the fire incident, the inter-Korean relations color, and the crisis of education, etc., and the fundamental human rights were seriously damaged due to abuse of governmental authority of the present government, which led to the crisis of democracy. This is based on the present government's team and the Decree of the Porting and Porting.

(c) promoting the 19th Pacific and pan-national meetings;

(1) On June 18, 2009, the public and private union announced “the state of the front school.” The government announced that the government supported the front school by the cancellation of the disciplinary policy, and that the participants would withdraw the disciplinary action. On June 22, 2009, the public and private union members of the National Public and Private Service Workers’ Union (hereinafter referred to as the “Court Workers’ Union”) were the public and private union members of the court, and three public and private union members of the Seoul 00 old OOO's Court Workers’ Union (hereinafter referred to as “three public and private union members”) were the public and private union members of the public and private union.

(2) The Minister of Public Administration and Security, on June 23, 2009, declared that the Declaration of Public Officials’ Unions constitutes a collective act prohibited by the State Public Officials Act, etc., and that the Declaration of Public Officials’ Unions, three public officials’ union chairpersons and executives, etc., were held in the office of the Korean Workers’ Union Federation (hereinafter “the Democratic Labor Union Federation”) on June 26, 2009, and announced that the Declaration of Public Officials’ Labor Union was conducted by asserting that the Declaration of Public Officials’ Labor Unions was suspended in relation to the discussion of three public officials’ Labor Unions, and that the Declaration of Public Officials’ Labor Unions was demoted.

(d) Posting on the website;

After the Ministry of Public Administration and Security’s guidelines, the Defendant and the head of a local government, including the Defendant, have reached several times a public announcement that may cause public officials under his jurisdiction to suspend the promotion and public relations activities of the Si Council or the Si Council, but the government’s public announcement of June 30, 2009, “The government’s public announcement of the official announcement of the official announcement of the official announcement of this case’s official announcement of the official announcement of the official announcement of this case’s official announcement of the official announcement of the official announcement of this case’s official announcement of the official announcement of the official announcement of this case’s official announcement of the official announcement of the official announcement of this case’s official announcement of July 1, 2009, the official announcement of the official announcement of this case’s official announcement of the official announcement of the official announcement of this case’s official announcement of the official announcement of the official announcement of this case’s official announcement of the official announcement of this case’s official announcement of the official announcement of this case’s official announcement of this case’s official announcement.

(e) Advertisements and placards;

(1) On July 13, 2009, the private labor union had been placed on the front advertisement (hereinafter “the front advertisement of this case”) on the 32 pages of the Jindo newspaper and on the 7th page of the Han Gindo newspaper, but its content is “I want to become a public official other than the government. No public official may speak about democracy, the ordinary people economy, the Korean Peninsula peace and labor welfare. He can not speak about the peace and labor welfare of the Korean Peninsula. Heed and her farb feb feb feb feb feb feb feb feb feb fe., July 19, 2009.

(2) On the same day, a public-private partnership union set up at each headquarters and branch office of the same day an advertisement with the opinion that supports the pre-public-private partnership in the independent bulletin board with the tendency from July 13, 2009 to July 27, 2009 (hereinafter referred to as "the instant advertisement") and directed the relevant local government to put a banner on the outer wall of the building of the relevant local government. Accordingly, from July 13, 2009 to July 27, 2009, a public-private partnership advertisement was placed in the name of each headquarters and branch under the public-private partnership with the content that supports the pre-private partnership aid in each public-private partnership bulletin board.

(f) 7. 19 Posium and Posium;

(1) The Assembly and Demonstration of Teachers and Public Officials (hereinafter referred to as the “National Assembly and Demonstration”) is called the “National Assembly and Demonstration.”

(A) On July 19, 2009: from 00 to 00, 17:0 on the same day, the Assembly members of the Democratic Labor Party lecture, 00 council members, the representatives of Democratic Party T&M council members, the President of the 66th Democratic Labor Group, the President of the Haak-gu, 1,100 council members, 150 council members, 150 council members belonging to the Jeon Jong-gu, 100 council members belonging to the private sector, 100 council members belonging to the court and labor union, 50 council members belonging to the court and labor union were held as public officials' prior events on September 2, 19, 2007.

(B) A public official, the president of the private sector, has made a speech as a public official's labor union for a public democracy through a newspaper advertisement. The participants participated in the assembly as a way to create relief according to the crypian's initiative. Specifically, the participants in the assembly interfered with the MB MB law by the declaration of the nation's flag, which led to the appearance of "the suppression of the assembly", "the fourth class of the fourth class of the assembly," "the fourth class of the assembly," "the fourth class of the assembly," "the free will of the government," "the public organization," "the public organization," "the free will of the Republic of Korea," "the public organization," "the free will of this government," "the free will of this government," and "the free will of this government," "the free will of this government," "the free will of this country," "the free will of this government."

(C) In addition, in the Seoul Square, the Seoul Square published a political party report or its present government criticism containing the political arguments, such as the “10 workers’ future, the two-dimensional layoffs,” “the 00 socialized labor,” “the Democratic Party of the Republic of Korea Democratic People Economic Dempic, and the Democratic Party of the Republic of Korea’s Democratic People’s Economic Peace,” “The Democratic Party of the Democratic Party of the Republic of Korea’s political arguments,” “MB trial, university students’ solidarity for the recovery of democracy,” etc.

(2) The second Korean People's Congress for Democratic Recovery and Biological Organisms;

(A) From 00 to 19:00 on the same day, from 17:0 to 19:00 on the Seoul YTN Nong-si, to the society of the chairman of the Labor Relations Commission, the second 2nd pan-national conference for the restoration of democracy. The participants of the Assembly have withdrawn from the Press Act and died in the 10th bits of non-regular workers in the press, the freedom of speech is guaranteed. Hah Han Han Han Han Han Han Han Han Han Hah Han Hah Han Hah Hah Hah Hah Hah Li Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah Hah kh Hah kh kh kh kn kn.

( 나 ) 또한 , 한국진보연대 이OO 공동대표는 " 반 MB전선을 만들어 똘똘 뭉쳐 투쟁해 나가자 " 라고 연설하고 , 민주노총 임00 위원장은 " 우리 노동자들은 쌍용차 공 권력 투입과 미디어법 강행처리 시 전면 파업에 돌입할 것이다 " 라고 연설하였으며 , 최 00 언론노조 위원장은 " 언론악법 폐지를 위해 MB정권에 맞서 끝까지 투쟁할 것이 다 " 라고 연설하였다 . 계속하여 민주당 송미 의원은 " 언론은 민주주의 생명이다 . 미디 어법은 절대로 통과되어서는 안 된다 " 라고 연설하고 , 민노당 강00 의원은 " 현 정부는 서민정부를 죽이고 있다 " 라고 연설하였으며 , 창조한국당 유vy 의원은 " 현 정부와 한 판 붙어서 이 지구상에서 영원히 격리시키자 " 라고 연설하였다 .

(g) Disciplinary action, criminal judgment, etc.;

(1) On August 24, 2009, according to the Defendant’s request for disciplinary action, the Gyeonggi-do Personnel Committee planned and attempted to engage in the public relations activities such as the National Assembly by posting the name of support for the public-private partnership as the vice-chairperson of the public-private partnership, posting the website, and posting the front advertisement or banner of the instant case, and participated in the instant Si Council. This was also against Article 48 (Duty of Good Faith), Article 49 (Duty of Fidelity), Article 55 (Duty of Good Faith), Article 58 (Prohibition of Group Action), Article 58 (Prohibition), Article 10 (2) of the former Act on the Establishment and Operation of the Public-Private Partnership Members, Article 10 (3) of the former Public-Private Partnership Act (amended by Act No. 1013, Mar. 17, 2010; 4).

(2) The Plaintiff dissatisfied with the instant disposition and filed an appeal review with the Gyeonggi-do Local Appeals Commission on November 19, 2009, but the said commission dismissed it on February 1, 2010.

(3) Meanwhile, in the case of violation of the Local Public Officials Act by the Seoul Central District Court 2010 Gohap220 on September 13, 2010, the Plaintiff was sentenced to a fine of KRW 1.5 million on the ground that the Plaintiff was sentenced to a fine of KRW 1.5 million on the ground that the Plaintiff was “collective act for any day other than official duties” prohibited under Article 58(1) of the Local Public Officials Act by participating in the instant national conference, etc.

【Uncontentious facts, Gap’s 1 through 8, 10, 12, 15 through 19, Eul’s 1 through 24, and the purport of all or part of the arguments and arguments

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

(1) Normal problems of the grounds for disciplinary action

The posting of the homepage of this case was conducted through the daily union activity of the person in charge of managing the homepage, and there was no fact that the plaintiff led the above act or participated in it. In addition, the defendant issued an official letter prohibiting the participation of the City Council of this case on July 17, 2009 (gold). Since the plaintiff participated in the City Council of this case, the plaintiff did not regard the above official document as he was on the leave of full-time women at the time and was on the leave of full-time women, it cannot be said that the plaintiff did not obey an official order.

(2) Issues in the application of the grounds for disciplinary action

Article 3 of the former Public Officials' Labor Relations Adjustment Act provides that if a group of public officials falls under "reasonable activities related to a trade union" under the premise that it constitutes a group act prohibited under Article 58 of the Local Public Officials' Act, it shall not be exceptionally punished. Article 4 of the former Public Officials' Labor Relations Adjustment Act provides that if a public official engages in a political activity prohibited under other Acts and subordinate statutes, such as Article 57 of the Local Public Officials' Act, he/she shall be construed as having engaged in a "political activity" prohibited under the above Act. Thus, unless he/she violates Articles 57 and 58 of the Local Public Officials' Labor Relations Adjustment Act, it shall not be deemed that the former Public Officials' Labor Relations Adjustment

However, the Assembly and Demonstration Act does not result from the purpose of supporting or opposing a specific political party, political organization, or candidate for a public election. Thus, the act of supporting the public and private union members including the Plaintiff cannot be deemed a political campaign prohibited under Article 57 of the Local Public Officials Act.

In addition, "collective action for activities other than public duties" prohibited under Article 58 of the Local Public Officials Act refers to collective action that affects the duty of loyalty for the purpose of going against the public interest. It is difficult to deem that the plaintiff, who is the period of leave of full-time workers, participated in the National Assembly of this case, which is a lawful and peaceful meeting, on Sundays, and thereby impeding the execution of duties. This is not an action against infringement on the freedom of speech, etc. guaranteed under the Constitution, and thus, it is not an action against the public interest. Thus, the plaintiff cannot be said to have violated Article 58 of the Local Public Officials Act.

Rather, the plaintiff's act at issue should be seen as "reasonable activities related to trade unions" under Article 3 of the former Public Officials' Labor Union Act.

In addition, as seen earlier, the act of preparing, advertising, or participating in the assembly or demonstration of this case is for public interest and is legitimate. Rather, the assembly or demonstration of the Ministry of Public Administration and Security, etc. is not a legitimate official order, such as the public official’s disciplinary policy or prohibition of participation in the assembly or demonstration, and thus, it cannot be deemed that the Plaintiff violated the duty of obeying the Local Public Officials Act, the duty of good faith, or the duty of maintaining dignity.

(3) With respect to a disciplinary action

When considering all the circumstances, such as the developments leading up to the instant disciplinary cause, the equity with other public officials subject to disciplinary action for the same reason, and the Plaintiff faithfully performed his duties as a public official, the instant disposition is an unlawful disposition that deviates from and abused discretion.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

(1) Regarding the fact-finding of the grounds for disciplinary action

First, the following circumstances acknowledged through the process of the above disposition, i.e., the Plaintiff’s status in the public-private partnership, the status of the public-private partnership and the formation of the public-private partnership in the public-private partnership and the formation of the public-private partnership in the public-private partnership, etc., were led to the acts of advertising to be widely known to the subordinate branch of the public-private partnership, etc., and the officers of the public-private partnership including the Plaintiff appeared to play the leading role. The contents posted on the homepage of this case, although the public-private partnership was posted by the staff of the lower court, it was merely the same as the contents of the resolution by the public-private partnership’s guidance division (it is difficult to view that the contents were related only to the lower part of the site, and it is difficult to view that the Plaintiff did not participate in the act of posting on the homepage of this case as the public-private partnership, and it is not possible to see that the Plaintiff did not participate in the act of posting on the homepage of this case as the public-private partnership.

Furthermore, in full view of the above evidence and evidence set forth in the evidence No. 9 (including the number) and the purport of the entire argument, it is reasonable to view that, in addition to the official document of July 17, 2009, the public officials of the Ministry of Public Administration and Security have published the article that the public officials of the Ministry of Public Administration and Security would not participate in the national conference or the second national conference of this case, and in addition to the plaintiff's status and the direction system and communication structure within the public-private partnership, the plaintiff was aware that the whole administrative bill or the defendant was prohibited from participating in the national conference of this case at the time of the participation in the national conference of this case.

Ultimately, all Plaintiff’s assertion related to the fact-finding of the grounds for disciplinary action cannot be accepted.

(2) Regarding the application of the laws and regulations on the grounds of disciplinary action

(A) As to the assertion that the term "justifiable trade union activities" and not "prohibited political activities" or "collective activities" are not "collective activities."

1) In full view of the provisions of Articles 1, 3(1), 4, and 8(1) of the former Public Officials’ Labor Unions Act, and Article 2(4) of the Trade Union and Labor Relations Adjustment Act, the term “justifiable activities related to public officials’ trade unions” under Article 3(1) of the former Public Officials’ Labor Unions Act is interpreted as aiming at maintaining and improving working conditions and improving other workers’ economic and social status.

In this case, on June 18, 2009, the Presidential Decree was criticized for the present government's policies, such as "the investigation of candlelightlight demonstration", "PD's investigation", "PD fire incident", and "inter-Korean relations color", and three public officials' unions such as public officials' will were decided to jointly act in concert with the above. Accordingly, the plaintiff as a vice-chairperson of the public-private partnership did not correspond to the present national assembly, and as a result, the plaintiff expressed his intention to support the contents of the front advertisement and the lelelight advertising, and urged the members to participate in the present national assembly, and he also participated in the present national assembly.

In addition, the present national assembly was widely held by various political parties and political groups opposing government policies, and the contents of the competition were political arguments through the public’s speech, such as “the assembly’s ‘the assembly’, ‘the assembly’, ‘the assembly’, ‘the assembly’, ‘the assembly’, ‘the assembly’, ‘the assembly’, ‘the assembly’, and ‘the assembly’, ‘the assembly’, ‘the assembly’, ‘the assembly’, and ‘the assembly’, ‘the assembly’, and ‘the suspension of non-regular dismissal’, etc. of government policies.

In light of the aforementioned developments and contents of the promotion of the national conference of this case, the original act is an act of expressing political intent to exercise influence over the decision of government policies and the ruling by linking the government with each political party, political and social organization, and it cannot be deemed that the original act is an act of expressing political intent to exercise influence over the decision of government policies and the ruling, and it cannot be deemed that it is intended to maintain and improve the working conditions belonging to the category of the "justifiable labor union activities" under Article 3 (1) of the former Public Officials' Labor Union Act and to improve the economic and social status

2) Also, in light of the following, the Plaintiff’s above act constitutes “political activity” prohibited under Article 4 of the former Public Officials’ Union Act.

In other words, Article 4 of the former Public Officials' Labor Union Act provides that "no trade union nor its members shall engage in any political activity." (1) The former Public Officials' Labor Union Act limits the scope of activities of a public official's trade union, in principle, to activities to improve economic and social status, such as remuneration, welfare, and other working conditions of a public official's trade union or its members, in accordance with the legal reservation of Article 37 (2) of the Constitution by taking into account the characteristics of the public official's duties and status, the influence of a public official's performance of duties on the freedom and rights of the general public.

Article 4 of the former Act on the Assistance to Public Officials' Unions does not limit the scope of political activities to political activities, and Article 4 of the former Act on the Assistance to Public Officials' Unions provides that matters concerning the management and operation of the agency, such as the exercise of the right to appoint, which are not directly related to working conditions, shall be excluded from the scope of activities (Articles 3 and 8 of the former Act on the Assistance to Public Officials' Unions), and that Article 4 of the former Act on the Assistance to Public Officials' Unions does not limit the scope of political activities to political activities or election campaigns. As such, Article 4 of the former Act on the Assistance to Public Officials' Unions takes into account the fact that the activities of a public official trade union with the nature of a collective action are political organizations, which are not directly related to working conditions, but to the extent of their activities (Article 3 of the former Act on the Assistance to Public Officials' Unions).

3) However, the main sentence of Article 58(1) of the Local Public Officials Act provides that "a public official shall not engage in any collective activity for any work other than a public official." In this context, "collective activity for any work other than a public official" means any collective activity conducted by a public official for any work that does not fall under any public official, but rather means any collective activity that affects the public interest in light of the legislative intent of Article 21(1) of the Constitution guaranteeing the freedom of speech, publication, assembly and association, the purpose of the Local Public Officials Act, the duty of good faith under the Local Public Officials Act, and the duty of good faith under the Local Public Officials Act, etc. (see, e.g., Supreme Court Decisions 204Do1050, Oct. 4, 2005; 200Do5798, Oct. 25, 2005).

In this case, the plaintiff mentioned "the investigation of candlelight demonstration", "PDbook investigation", "Grasan Fire Case", and "Inter-Korean Scream, etc., causing a crisis in democracy because fundamental human rights have been seriously damaged due to the abuse of governmental authority by the present government, which supports the assembly assembly and demonstration conducted by the present government's reading team and the independent shipping station operation, and decided that three public officials' union and union should be a public figure, while encouraging public officials to participate in the demonstration of this case such as the advertisement of this case and its affiliated headquarters and branch office of this case to participate in the demonstration of this case, causing conflicts and confusions surrounding the perception of the situation of the present government at the time of attendance, and adversely affecting public officials' political neutrality.

In light of these circumstances, the main purpose of the plaintiff is not to improve working conditions, but to accomplish the argument opposing the government policy by pressureing the government, which is to infringe on the political neutrality of public officials as well as collective political activities.

Therefore, the Plaintiff’s above act constitutes a “collective act that may affect the duty of care, such as neglecting the duty of care for the purpose that goes against the public interest” and it does not change even if the instant conference was held on holidays.

(B) As to the assertion that the duty to maintain good faith, obey, and maintain dignity is not violated

The duty of good faith under Article 48 of the Local Public Officials Act is the most fundamental duty imposed on public officials, and the duty to maintain dignity under Article 55 of the Local Public Officials Act is to faithfully perform the duties in good faith in order to promote the public interest as much as possible and prevent any disadvantage. Since the duty to maintain dignity under Article 55 of the Local Public Officials Act is widely entrusted by the people to the public and to work for the whole of the people, it is feared that the act of dignity of public officials is likely to undermine the people's trust as well as the public official's duty, and therefore, the duty to maintain dignity is to require the public official to live a sound life as well as the part related to the public official's duty. In this context, the term "quality" refers to a person who is a delegate of the people who is a sovereign and has not been frighted, and thus, the act of the plaintiff by pressureing the government in connection with a particular political party or political force and exercising influence over the decision of the government policy constitutes a violation of the duty of good faith and good faith.

In addition, even though it is not necessary for the plaintiff to have an opportunity to obstruct the plaintiff's work in performing the above act, since the duty of a public official who is obliged to faithfully perform his duties by forming the whole character and conscience to promote public interest and prevent the disadvantage is limited to his duty not to engage in an act that adversely affects the fairness of his duties and is highly likely to infringe on the people's trust, the defendant's act of prohibiting the plaintiff from participating in the national conference or engaging in the public relations activities constitutes a legitimate order in the course of duties (the contents that the plaintiff et al. want to express through the national conference of this case are not legitimate as seen earlier cannot be viewed as censorship without any justifiable reason). It is reasonable to view that the plaintiff's act in violation of this duty violates the duty of obey as stipulated in the Local Public Officials Act.

(3) Determination as to whether a disciplinary action is appropriate

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure is held at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take the disciplinary measure is deemed to abuse the discretionary power that has been placed at the discretion of the person having authority to take the disciplinary measure, the measure is unlawful. If a disciplinary measure against a public official has considerably lost validity under social norms, depending on specific cases, the contents and nature of the offense causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, and the criteria for the determination of the disciplinary measure, etc. are considered to be clearly unfair as objective. Even if the exercise of authority to take the disciplinary measure is placed at the discretion of the person having authority to take the disciplinary measure, it is deemed that the contents of the disciplinary measure are clearly unfair. This is against the principle of public interest that should exercise the authority to take the disciplinary measure for public interest, or is generally considered as a disciplinary reason, it violates the principle of proportionality by selecting more than the degree of flight, or violates the principle of fairness and equality 160.

In light of the above legal principles, the following circumstances acknowledged by the evidence mentioned above, namely, the Plaintiff, who is a public official required to maintain political impartiality under the Constitution, was engaged in active political activities beyond the level of government invasion, and the Plaintiff’s act cannot be deemed to have an adverse impact on the public official’s duty fairness and trust to the public. If there is no appropriate disciplinary action against the instant act, it is likely that the same act of the public official’s trade union and its members will continue to be carried out in the future. Furthermore, the Plaintiff’s act similar to the instant case’s collective act, such as illegal labor defense and participation, repetition of workplace, and disturbance of public official discipline on July 30, 207, even if considering all favorable circumstances asserted by the Plaintiff, it cannot be deemed that the instant disposition against the Plaintiff was an unlawful disposition beyond the discretionary power.

3. Conclusion

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

Judge Lee Sang-hoon

Judge Lee Hon

Judges Dok-hee