(영문) 서울행정법원 2015.4.2.선고 2014구합57775 판결

A. From May 23, 2008 to July 28, 2010, the Plaintiff engaged in energy cooperation diplomatic affairs while serving as the Prime Minister’s Diplomatic Policy Officer. From July 29, 2010 to January 26, 2012, the Government Organization Act was amended by Act No. 11690 on March 23, 2013, and its name was changed to “the Ministry of Foreign Affairs”, but all "the Ministry of Foreign Affairs and Trade" referred to as "the Ministry of Foreign Affairs and Trade, regardless of its name before and after the change," and "the Vice Minister of Foreign Affairs and Trade" refers to the defendant Ambassador as "the defendant").

B. ○○○ is a representative director of CNK bargaining Co., Ltd. (hereinafter referred to as “CNK bargaining (Korea) and K MINGINGINC SA (hereinafter referred to as “C&K”), who has promoted a multi-mond mineral deposit development project in Kamere. around 2009, ○○ was a listed company, and changed its trade name from CNNK to CNK line (hereinafter referred to as “CNK”), and 30 KNK’s (hereinafter referred to as “CNK”), regardless of its mutual change; hereinafter referred to as “C&K’s representative director”); and hereinafter 200 KNK’s (hereinafter referred to as “CNK”), who is a listed company.

C. On November 2008, 2008, the Plaintiff supported that ○○ can be granted the right to develop mineral deposits from the government that dealt with the mineral deposit through various means upon receiving a request from the government for support for the mineral deposit development project within the domain.

D. On December 16, 2010, the KMG government issued a right to develop the Mmond mineral deposits (hereinafter “the instant mineral deposits”) of the Momond (Mobl Long) in the Cameron region (hereinafter “the instant mineral deposits”) with respect to C & K-learning (hereinafter “C”), and distributed the report materials informing the above facts on the following day to the Ministry of Foreign Affairs and Trade (hereinafter “the first report materials”). In relation to the said Dmond mineral deposits, the contents re-written in the said report materials are as follows:

A person shall be appointed.

E. However, the media thereafter raised various doubts as to whether the Rmond store quantity of the instant mineral deposit and the economic nature of the mineral deposit development project, and the Ministry of Foreign Affairs and Trade, through the first news report data, made it difficult for the Ministry of Foreign Affairs and Trade to cause confusion in the stock market by publicly announcing the multimond store quantity of the instant mineral deposit through the first news report data. The Ministry of Foreign Affairs and Trade distributed the report data again on June 28, 201 (hereinafter “the second news report data”) and intended to spread the said suspicion. The relevant contents of the report data are as follows.

A person shall be appointed.

F. However, there was a suspicion that the Damond estimated store quantity of the instant mineral deposit constantly increased, and due to the report materials of the Ministry of Foreign Affairs and Trade’s office, the Plaintiff’s relatives and relatives, who hold the shares of the C&W rink due to the b&K’s large width, obtained unjust benefits. The suspicion was raised.

G. Accordingly, the Board of Audit and Inspection conducted an investigation with respect to the Plaintiff, and conducted various support activities without undergoing an examination by a relevant specialized agency as to whether the amount of Damond store, etc. claimed by the Plaintiff is appropriate, which resulted in abuse of government support activities as a means to solve the business difficulties of insolvent companies, such as C&K. ② Of the first news report materials, “the quantity of Damond's store of the instant mineral deposit is at least approximately 4.2 billion Won (the result of UNDP research from 95 to 97, to 07, the results of the Dannam exploration Team search) and the fact that it was false or not verified, which included it in the news report materials to cause confusion to the stock market, and when the first news report materials were raised, the first and second news report materials were also distributed to the Defendant, which was verified by the Korean government, and the second and second news report materials were also distributed to the Defendant, which was the result of the Plaintiff’s removal of the Plaintiff’s Dand's new news report materials.

H. Accordingly, on January 27, 2012, the Defendant: (a) released the Plaintiff from position pursuant to Article 73-3(1)3 of the State Public Officials Act on the ground that the Plaintiff was released from position; (b) and (c) decided on June 12, 2012 by the Central Disciplinary Committee’s resolution on May 18, 2012, the Defendant took a disposition of dismissal from position against the Plaintiff on the ground that the resolution of dismissal against the Plaintiff was made against a person in need of a request for a resolution of dismissal (hereinafter “instant disposition of removal from position”); (c) taken a disposition of dismissal against the Plaintiff on the ground that it was improper to promote an energy cooperation diplomatic mission with respect to the development of the instant mineral deposit; (d) taken a disposition of dismissal against the Plaintiff on the ground that the Plaintiff’s dismissal against his/her duty-related person or relative-friendly and relative shares were subject to disciplinary reasons (hereinafter “instant disposition of demotion”).

I. On February 19, 2013, the Seoul Central District Prosecutors’ Office prosecuted the Plaintiff on the ground that the Plaintiff’s instant misconduct was detrimental to the violation of the Financial Investment Services and Capital Markets Act, the preparation of false official documents, the use of false official documents, and the exercise of rights and obstructing another’s exercise of rights.

(j) The Plaintiff, who was dissatisfied with the instant disposition, sought revocation of the said disposition to the appeals review committee, but the appeals review committee dismissed the Plaintiff’s request on February 27, 2013.

(k) The Defendant continued to assign any position to the Plaintiff even after the extinguishment of the effect of the instant disposition of removal from the primary position in accordance with the instant disposition of demotion. However, on January 2014, the Safety Administration issued a disposition of removal to the Plaintiff pursuant to Article 73-3 (1) 4 of the State Public Officials Act on the ground that “The Defendant, after the instant disposition of demotion, was subject to the disposition of removal from the position to the Plaintiff, was unable to properly manage the personnel affairs of the public official in charge of corruption, such as placing the Plaintiff at the present presence of the reason for removal from position (criminal prosecution) while he was performing personnel management in the unfounded atmosphere without any legal basis against the Plaintiff (hereinafter “instant removal from position”).

(l) The Seoul Central District Court rendered a judgment of innocence against the Plaintiff on January 23, 2015 (Seoul Central District Court 2013Gohap160, 2014Gohap413, 812 (Joint)). The instant case is currently pending in the appellate court due to the prosecutor’s appeal (Seoul High Court 2015No548).

(m) The Plaintiff filed a lawsuit seeking the revocation of the instant disposition of demotion, and the Seoul Administrative Court revoked the instant disposition of demotion on March 13, 2015 (Seoul Administrative Court 2013Guhap12058).

[Reasons for Recognition] Each entry of Gap's 1, 2, 5, 6, 31 through 33, Eul's 3 and 4 (including each number number; hereinafter the same shall apply), and the purport of the whole pleadings, as a whole, without dispute

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant did not grant the Plaintiff the opportunity to present his opinion prior to the removal from his position, and did not explain the specific reasons for the removal from his position. The instant removal from position is procedurally unlawful.

2) The Plaintiff was already subject to the instant disposition of removal from the first position and demotion due to the same issue. The instant disposition of removal from the position violates the res judicata doctrine.

3) The Plaintiff was rendered a judgment of not guilty on all the facts charged in the relevant criminal case. It is just just because there was no high probability that the Plaintiff would be convicted at the time of removal from position, and the Defendant merely committed the instant disposition of removal from position on the ground that the Plaintiff was prosecuted for a criminal case. This is not only in violation of the principle of presumption of not guilty, but also cannot be deemed as a justifiable reason

4) Removal from the position of this case violates the Plaintiff’s expectation and predictability, and is in violation of the principle of proportionality as it causes an irrecoverable economic, mental, or defamation.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) Whether procedural illegality is procedural

First, with respect to the assertion of procedural illegality due to the failure to comply with the prior procedure, it is reasonable to deem that the provision of the Administrative Procedures Act concerning prior notice and hearing of opinion is not separately applied since the disposition under the Act on the Management of Public Officials is subject to the disposition under the Act on the Management of Public Officials, Article 3(2)9 of the Administrative Procedures Act, Article 2 subparag. 3 of the Enforcement Decree of the same Act, which makes it difficult or unnecessary to complete administrative procedures due to the nature of the pertinent administrative action, or which goes through the procedures equivalent to administrative procedures (see Supreme Court Decision 2012Du26180, May 16, 2014). Unless there is a provision on the purport that prior notice of disposition and hearing of opinion should be given to the public official prior to the removal from the disposition under the Act on the Management of Public Officials, since the defendant did not give the plaintiff an opportunity to present his opinion prior to the removal from the disposition in this case, it cannot be deemed that the above disposition is unlawful.

Next, according to the health department, Gap evidence No. 5, the defendant's ground for removal from the position of the plaintiff at the time of removal from the position.

In the order column, the above explanatory note issued a written explanatory note, and the above explanatory note delivered the written explanatory note, and "it can be recognized that the facts stated as a criminal case" in Article 73-3 (1) 4 (a) of the State Public Officials Act were stated in the order column, and at the time of removal from the position, the plaintiff had already been prosecuted against the plaintiff, and it cannot be said that there was a procedural law, such as the plaintiff's assertion.

2) Whether the principle of prohibition against double Jeopardy is violated

The removal from the first removal from position was based on the reason that the resolution of dismissal against the plaintiff is in need of a resolution of dismissal, and thus, the grounds for the removal from position that was based on criminal prosecution against the plaintiff are less than that of the disposition, and the removal from position was already invalidated due to the demotion.

In addition, the disposition of this case was based on the fact that the plaintiff committed the misconduct of this case, and whether the disposition of this case was actually conducted by the plaintiff, and whether the disposition of this case was conducted by the plaintiff.

Regardless of whether “the Plaintiff was prosecuted or prosecuted” is based on the fact that the grounds for the disposition are entirely different, and even if the disposition of removal is imposed for any reason different from the disciplinary action, which is a punitive sanction, if it can be understood as the grounds for the disposition of removal, then the disposition of removal may be conducted for that reason. This does not conflict with the principle of prohibition against double Jeopardy or double punishment (see Supreme Court Decision 191Da30729 delivered on July 28, 192).

Thus, even though the plaintiff was subject to the first disposition of removal from office or the demotion of this case concerning the wrongful act of this case, as long as the defendant's criminal prosecution against the plaintiff was committed due to the same wrongful act and this constitutes the reason for removal from office under the State Public Officials Act, it cannot be deemed that the defendant's new disposition of removal from office of this case violates the principle of res judicata.

(iii) the existence of reasons for removal from position

A) Relevant legal principles

Article 27 (4) of the Constitution provides that a criminal defendant shall be presumed to be a crime until a judgment of conviction becomes final and conclusive. The system of removing positions under Article 73-3 (1) 4 of the State Public Officials Act provides that if a public official who has been charged with a criminal prosecution continues to hold his/her position and perform his/her duties at the stage before he/she is retired ipso facto after obtaining a final and conclusive judgment of conviction, there is a risk of undermining the fairness in the performance of public duties and the trust of the people. Thus, in order to prevent this in advance. In light of the principle of presumption of innocence under the Constitution or the above purpose of the removal from position system, removal from position can not be justified solely on the ground that he/she is indicted for a criminal case, and it is highly probable that a party is convicted of a conviction falling under Article 33 (1) 3 through 6-2 of the State Public Officials Act, and whether the party's continuous performance of duties causes a risk to fair performance of public duties (see, e.g., Supreme Court Decision 199Du1548.

B) In the instant case:

In light of the above legal principles, in full view of the following circumstances that can be recognized through the statement of No. 6 and the purport of the entire argument, the judgment of innocence was rendered in the first instance court in the relevant criminal case against the plaintiff after the date of removal from position. Even if the plaintiff who continued to hold a position as a senior foreign service officer and held the same position as a senior foreign service officer at the time of removal from position, if the plaintiff who was subject to criminal prosecution as a result of removal from position has continued to hold a position as a senior foreign service officer and has the same position, it shall be deemed that there was a specific risk that would undermine the fairness in the execution of public duties and the trust of the people. Thus, the removal from position of this case

(1) The Plaintiff, as an Ambassador of the Ministry of Foreign Affairs and Trade, served as a senior foreign service officer in charge of assisting the Minister with respect to the internal and external business activities and negotiations related to energy and resources diplomacy, and was a senior foreign service officer of the Republic of Korea after the instant disposition of the demotion, and the Plaintiff was a senior foreign service officer of the Republic of Korea, who was a Grade 9 foreign service officer in charge of the instant disposition. The level of fairness in the performance

(2) The Plaintiff was indicted for unjust enrichment of approximately KRW 90 billion in the name of the Ministry of Foreign Affairs and Trade by exercising pressure on foreign service officers refusing to approve the Plaintiff, in collusion with C&K and by inducing O&O et al. to disrupt the stock market, thereby inducing the increase of share price and thus inducing O&O et al. to acquire unjust enrichment of KRW 1 and 2 of the facts charged (hereinafter “the facts charged of this case”).

The facts charged of this case are directly related to internal and external affairs related to energy resources diplomacy conducted by the plaintiff as an ambassador of the Ministry of Foreign Affairs and Trade, and the plaintiff committed the above misconduct by taking advantage of his position and diplomatic influence for personal purposes upon receiving a request from an interested person, and regardless of its authenticity, it seems that the general citizen, regardless of its authenticity, he was prosecuted against the plaintiff as the above facts charged, may have a considerable doubt about the fairness of the plaintiff's execution of official duties. Furthermore, this case was a matter of question upon the plaintiff's suspicion of the press, the National Assembly's request for audit, and accusation.

In the event that the plaintiff continues to hold the relevant position and has the same duties, it should be deemed that there was a specific risk that would undermine the people's trust in the appropriateness, such as the integrity of the public duties, the impossibility of performing the public duties, and the appropriateness of the public duties.

(3) Prior to the removal from position, the Board of Audit and Inspection’s investigation, the decision of the Central Disciplinary Committee for the instant disposition of demotion, the prosecution’s investigation and prosecution, and the examination of the appeals review committee for the instant disposition of demotion. The instant disposition of removal from position was based on the probability that the Plaintiff had committed a wrongful act that constitutes the facts charged in the instant case, and the Plaintiff cannot be deemed to have been prosecuted merely on the ground that the instant case was prosecuted.

(4) Article 73-3(1)4 of the State Public Officials Act, which the Defendant used as the ground for removal from position, only stipulates that a person who was prosecuted for a criminal case, may be released from his position, and does not require that such person be actually convicted for a crime prosecuted be subject to removal from position. Thus, the ground for removal from position of this case cannot be viewed as a matter of course on the ground that the Plaintiff was acquitted in the first instance court in the relevant criminal case.

In addition, since the state of prosecution against the plaintiff is maintained, and the above criminal case is pending in the appellate trial in accordance with the prosecutor's action, the possibility of sentence of imprisonment without prison labor or heavier punishment falling under the grounds for ipso facto retirement under the State Public Officials Act cannot be ruled out. Thus, the judgment of the court of first instance alone cannot be deemed to have ceased to exist the grounds for

4) Whether the principle of proportionality is violated

The removal from position is based on the exercise of personnel authority based on the right of appointment of the defendant who is the personnel authority, and the defendant should have considerable discretion to the defendant. However, if it appears that the high-ranking public official, such as the plaintiff, recognized in relation to the respect of the reasons for the removal from position above, is required more ethical and compliance, and the facts charged in this case are highly related to duties, and even if considering all the circumstances asserted by the plaintiff, it is difficult to deem that the defendant violated the law of deviation from or abusing the discretion to the removal from position of this case, which once the defendant dismissed the plaintiff pursuant to Article 73-3(1)3 of the State Public Officials Act

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.

Judges

Judge transferred to the presiding judge;

Judges Park Gi-ju

Judges Lee Jae-chul

Note tin

1) There is a village in the name of Yokauma (Yokauma) in the area, so it is called Yado-Mada-Maga mineral deposit.

Site of separate sheet

Relevant statutes

▣ 국가공무원법

Article 73-3 (Release from Position)

(1) The appointment authority may decide not to assign a position to any of the following persons:

3. A person against whom a resolution of disciplinary action equivalent to removal, dismissal, demotion, or suspension from office is required;

4. A person prosecuted for a criminal case (excluding those against whom a summary order has been requested).

(2) Where no position is assigned under paragraph (1), when any ground therefor is extinguished, the appointing authority shall assign a position without delay.

(3) The appointment authority shall order a waiting period not exceeding three months to a person who is released from his/her position under paragraph (1) 2.

Article 75 (Issuance of Explanatory Note on Grounds for Disposition)

If disciplinary disposition, etc. or demotion, temporary retirement, position cancellation, or disposition for dismissal, is taken against a public official, the disposition-taking or disposition-taking authority shall issue (delivery) an explanatory note specifying the grounds for such disposition: Provided, That the same shall not apply to cases of demotion, temporary retirement, or disposition for dismissal taken due to a request of the person concerned.

E.B. Administrative Procedures Act

Article 3 (Scope of Application)

(1) Except as otherwise expressly provided for in other Acts, the procedures for dispositions, reports, pre-announcement of administrative legislation, pre-announcement of administrative dispositions, and administrative guidance (hereinafter referred to as "administrative procedures") shall be governed by this Act.

(2) This Act shall not apply to any of the following matters:

9. Matters prescribed by Presidential Decree, such as conscription and call-up under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action and other dispositions under the Acts and subordinate statutes related to public officials' personnel affairs, mediation, conciliation, arbitration (adjudication), arbitration (adjudication), and other dispositions under the Acts and subordinate statutes aimed at mediating interests, and other procedures equivalent to administrative procedures, which are deemed difficult or unnecessary due to the nature of the relevant administrative action, and prescribed by Presidential Decree;

E.B. Enforcement Decree of the Administrative Procedures Act

Article 2 (Exclusion from Application)

"Matters prescribed by Presidential Decree" in Article 3 (2) 9 of the Act means any of the following:

3. Matters concerning disciplinary action and other dispositions pursuant to Acts and subordinate statutes related to the personnel management of public officials;

참조조문

-국가공무원법

-국가공무원법 제33조 제1항 제3호

-국가공무원법 제73조의3 제1항 제3호

-국가공무원법 제73조의3 제1항 제4호