Plaintiff (Attorney Lee Jae-won, Counsel for the plaintiff-appellant)

The Commissioner of Busan Local Police Agency

September 15, 2006

Busan District Court Decision 2005Guhap3531 Delivered on March 23, 2006

1. Revocation of a judgment of the first instance;

2. The defendant's dismissal disposition against the plaintiff on August 11, 2005 shall be revoked.

3. All costs of the lawsuit are borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings as evidence Nos. 1, 3, 18, 24, 30, 31, 36, and 42.

A. The plaintiff was appointed as a policeman on July 13, 1991, and was promoted to the police officer on October 21, 1998, and served in the Busan Coast Guard Zone since February 25, 2005.

B. On June 6, 2005, at around 12:05, the Plaintiff discovered and suspended the passenger car volume of Nonparty 1 (Y, 22) who violated the signal in front of the shipping zone maintenance factory located in the Busan Metropolitan City Shipping Daegu, but the Plaintiff received 10,000 won in cash from the female.

C. On August 11, 2005, the Defendant dismissed the Plaintiff on the ground of grounds of disciplinary action that he violated Articles 56 (Duty of Good Faith), 57 (Duty of Uniform) and 61 (Duty of Integrity) of the State Public Officials Act due to the investigation of the Busan Regional Police Agency’s Inspector and the disciplinary resolution of the General Disciplinary Committee of Police Officers of the Busan Regional Police Agency, and the act that he did not take appropriate measures against the above violation of the duty of care (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case is unlawful since it abused discretion because it is excessive in light of its degree of misconduct.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Facts of recognition

The following facts can be acknowledged in full view of the above evidence and evidence Nos. 1, 2, 4 through 8, 10 through 17, 19 through 22, and the testimony of the witness fright in the first instance trial:

(A) At around 11:50 on June 6, 2005, the Plaintiff: (a) operated nearby the entrance distance of the transmitting beach to put oil into the public security center; (b) as above, Nonparty 1 suspended the vehicle to detect and regulate the operation of the signal violation; and (c) Nonparty 1 called “the third female driver only,” and “the signal violation shall be KRW 60,000,000,000,000,” and “the signal violation shall be deemed to be 15,000,000,000,000,” and (d) returned to Nonparty 1’s confirmation after presenting the women’s license, the Plaintiff “I am out of the way,” and “I am out of the bar name and the bar name and the bar name and the bar number on which I am on which I am off to the Plaintiff.”

(B) On June 27, 2005, the Commissioner General of the Korean National Police Agency reported the phone call that the plaintiff committed the above misconduct and had the inspector in charge of the hearing office of the Busan Regional Police Agency investigate the above reported misconduct. The plaintiff denied the fact in the first investigation on July 8, 2005, and recognized the fact of receiving money and valuables in the second investigation on July 14, 2005.

(C) While the head of the Busan Coast Guard, who is the head of the department to which the plaintiff belongs, presented his opinion of heavy disciplinary action against the plaintiff, the plaintiff at the open disciplinary committee stated that the plaintiff was unable to memory or receive 10,000 won or more of the above misconduct, and later stated that he was punished in accordance with the protocol prepared by the inspector.

(D) The Plaintiff’s work performance by rank was 184 out of 255 in the case of 2003, and was 130 out of 272 in the case of 2004. Moreover, the Plaintiff served as a police official until the instant disposition was taken, and was given one-time official commendation by the chief of local office, 15-time official commendation by the chief of police station, etc., and was subject to other disciplinary actions except the second second official rank.

(2) Whether the discretion is abused or not

(A) Article 79 of the State Public Officials Act classify disciplinary action into removal, dismissal, and suspension from office. Article 16 of the Decree on Disciplinary Action against Police Officials and Article 2(1) of the Rules on Disciplinary Action against Public Officials (hereinafter “Rules”) provides that disciplinary action shall be decided in accordance with the criteria for disciplinary action under [Attachment Table 1] of the above Rule, taking into account the type of misconduct of a discipline accused person, degree of misconduct, degree of negligence, seriousness of negligence, and degree of conduct, performance, public service, good faith, opinion of a person who requested disciplinary action, and other circumstances, etc.

(B) On the other hand, when a disciplinary action is taken against a person subject to disciplinary action who is a public official due to grounds for disciplinary action, the person subject to disciplinary action is at the discretion of the person having authority to take the disciplinary action. However, if the person having authority to take the disciplinary action as an exercise of its discretionary authority is recognized to abuse the discretionary power, it shall be illegal. If a disciplinary action against a public official has considerably lost validity under social norms, it shall be deemed that the contents of the disciplinary action can be objectively and objectively unfair when comprehensively considering various factors, such as the content and nature of the misconduct causing the disciplinary action, administrative purpose to be achieved by the disciplinary action, criteria for the determination of disciplinary action, etc. (see Supreme Court Decision 2002Du6620, Sept. 24, 2002, etc.).

(C) As to the instant case, it is necessary to take a heavy disciplinary measure against the Plaintiff in light of the following: (a) the Plaintiff actively demanded the driver to pay money to the driver; (b) the Plaintiff specifically informed the passenger of the method of delivering money so that no other person can be seen; or (c) by the end of the end of preventing the Plaintiff from reporting the misconduct, such as the Plaintiff’s report and the passenger who entered the name and Oroba number. However, the Plaintiff only received KRW 10,00 won for non-control against the Plaintiff’s signal-violation driver; and (b) the Plaintiff, except the Plaintiff’s denial of temporary misconduct in the course of the investigation, led to the confession in substitution; and (c) the Plaintiff, except for the Plaintiff’s denial of the fact of temporary misconduct in the process of the investigation, was in profoundly against this during 14 years and has been subject to a minor disciplinary measure twice or more until the date of the instant disposition; and (c) police officials were faithfully in service; and (c) the Defendant’s dismissal of the Plaintiff’s discretionary authority is unlawful in light of the need to punish.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition to revoke the plaintiff's appeal and revoke the disposition of this case.

Judges Kim Shin (Presiding Judge)