2010Guhap16418 Revocation of revocation of dismissal

(d) (68 years old, south)

Suwon-si, Suwon-si, Suwon-si

소송대리인 법무법인 ㅎㅎ

Attorney Lee In-bok

The head of Ansan-si 00

Litigation Performers last 88

Law Firm Woo, Attorney Park Do-woo

[Defendant-Appellee] Plaintiff 1 and 2 others

July 14, 2011

August 1, 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 April 28, 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff was appointed as a local tax secretary on August 12, 1995, and served as a local tax assistant from November 19, 2009 to Ansan-si 00 in Ansan-si and as a local tax assistant.

B. On January 12, 2009, the Defendant requested the personnel committee in Ansan-si to decide disciplinary action against the Plaintiff for the reasons for disciplinary action as set forth below.

10 The plaintiff temporarily retires on October 20, 2008 from office as the full-time officer of the National Public Officials' Union; on November 19, 2009; on November 24, 2009 after returning to the tax department of the Mananan and returning work; on November 24, 2009; on the 19-day leave from office from November 1, 2009 to December 21, 2009.

0. On December 18, 2009, the Plaintiff sent a written opinion on the request for attendance and asked the intent to return to work and ask for room for ordinary creative work. However, in order to carry out the business friendship of the Director General of the Secretariat in charge of the election of the Korean Public Officials' Union, the Plaintiff requested the Plaintiff to process the temporary retirement urgently by asserting that it is difficult for the Plaintiff to return to work and that the notification on the application for temporary retirement is unreasonable, but this is not a matter in accordance with the current provision.

0 The Plaintiff’s act of absence without permission violates Articles 48 (Duty of Good Faith) and 50 (Prohibition of Deserting from Office) of the Local Public Officials Act, and the Plaintiff’s act of failing to comply with Article 49 (Duty of Compliance) of the Local Public Officials Act, which constitutes a violation of Article 69 of the Local Public Officials Act, and requires a resolution of heavy disciplinary action pursuant to Article 2 (Standards of Disciplinary Action) of the Rules on Disciplinary Action in Ansan-si.

C. On February 10, 2010, the personnel committee in Ansan-si appears to be a clerical error in writing on April 1, 2010, stating the grounds for the above disciplinary action and the claims in the complaint filed against the Plaintiff from December 22, 2009).

By February 10, 2010, the Ministry of Administrative Safety decided three months of suspension from office due to a disciplinary cause for which a person was absent without permission for 35 days was absent from office. However, the Ministry of Administrative Safety requested the defendant to request a higher-level agency to conduct reexamination, and the defendant requested re-examination to the Gyeonggi-do Personnel Committee on the ground that the above disciplinary disposition is less than that of the above case.

D. On April 1, 2010, the Gyeonggi-do Personnel Committee decided to dismiss the Plaintiff on the ground that it constitutes a disciplinary cause under Article 48, Article 49, or Article 50 of the Local Public Officials Act due to the violation of Article 69 (1) 1 and 2 of the same Act, and the Defendant was subject to a disciplinary measure against the Plaintiff on February 28, 201 in accordance with the opinion of the said Gyeonggi-do Personnel Committee (hereinafter referred to as the “instant measure”).

E. On May 27, 2010, the Plaintiff appealed for an appeal review to the Gyeonggi-do Local Appeal Committee, but the said Committee rendered a decision to dismiss the Plaintiff’s request for appeal review on August 23, 2010.

[Ground of recognition] The non-contentious facts, Gap evidence Nos. 1 and 2-1, 2. Gap evidence Nos. 6, 7, Eul evidence Nos. 3 and 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The absence of grounds for disciplinary action

A) The Plaintiff has already worked at the office on November 24, 2009 when the agreement with the Defendant on the labor union activities during working hours, and entered the office in the business trip order book and entered the business affairs of the labor union in the office on November 24, 2009. Therefore, the Plaintiff cannot be deemed to have left the workplace without permission.

B) The Plaintiff was intended to leave from the workplace with a reasonable approval from a superior to consider related affairs after winning the office of the National Government Employees' Union (hereinafter referred to as the "Korean Government Employees' Union"). However, the superior, who was not a trade union under the Act on the Establishment, Operation, etc. of Public Officials' Unions (hereinafter referred to as the "Public Officials' Union Act"), was forced to leave from the workplace without obtaining approval from a superior. The Plaintiff filed an application for leave of absence on the ground that he was not a trade union under the Act on the Establishment, Operation, etc. of Public Officials' Unions, and applied for leave of absence for a labor union under the Act on the Establishment, Operation, etc. of Public Officials' Unions. The major was decided to continue to work as the full-time officer due to a lack of permission by a labor union under the

(2) Defect in the disciplinary procedure

Although the disciplinary committee is unable to make a resolution by adding the grounds for disciplinary action to the fundamental revision of the grounds for the request for the disciplinary action or the grounds for the occurrence after the request for the disciplinary action was made, the disciplinary committee in Gyeyang City was illegal since the disciplinary action was actually deprived of the plaintiff's right to defense.

(3) The illegality of a disciplinary action

Considering that the Plaintiff’s major also applied for leave of absence to work as a full-time full-time worker, but the Plaintiff was absent from absence without permission, and that the Plaintiff received a commendation for 15 years as a public official while performing his/her duties, and that there was no disciplinary action prior to the instant disposition, the instant disposition violates the principle of proportionality by clearly losing validity under social norms.

(4) Non-existence and defect of disciplinary authority

The defendant is not an affiliated administrative agency under the Local Autonomy Act and does not include the scope of a person who is entitled to receive delegation of authority for appointment by municipal ordinance pursuant to Article 6(2) of the Local Public Officials Act. Thus, there is no authority to take disciplinary action against public officials belonging to the Maan-gu. In addition, since the defendant made a request for disciplinary action to the personnel committee in Ansan-si, which is the immediate superior agency, the defendant was requested to make a request for disciplinary action to the personnel committee in Ansan-si, which is the immediate superior agency, and thus, he did not undergo a re-resolution by

(b) Relevant statutes;

As shown in the attached Form.

(c) Facts of recognition;

(1) From October 20, 2008 to January 31, 2010, the Plaintiff, as the chief of the central policy office, worked as the full-time officer of the labor union upon the Defendant’s leave order. The Ministry of Labor notified on October 20, 2009 that the major worker is not deemed as a labor union under the Public Officials’ Labor Act. On October 23, 2009, the Defendant revoked the worker’s leave of absence and ordered the Plaintiff to return to work until October 23, 2009.

(2) After the plaintiff was reinstated on November 19, 2009, the plaintiff went to the office on November 24, 2009 and was on a business trip to the superior for the labor union's activities, but did not obtain the approval, and left the office under such circumstances.

(3) From November 25, 2009 to December 21, 2009, the Plaintiff was absent without permission from office for 19 days, and between the Defendant’s employees, etc., the Defendant’s employees, etc. used to return to the Plaintiff to telephone conversations, and the Plaintiff sent a letter of urging the Plaintiff to return to work on December 2, 2009 and December 9 of the same month, but the Plaintiff did not comply therewith.

(4) The Plaintiff submitted a written application for leave of absence to the Defendant by facsimile on December 11, 2009. However, the Plaintiff applied for leave of absence to the Defendant on December 25, 2009, but it appears that the person in charge did not confirm the receipt.

On November 25, 2009, the defendant notified the plaintiff on the 14th of the same month that the major labor union is not a legitimate trade union, and that the retroactive leave is not a legitimate one.

(5) The Plaintiff was absent without permission for 35 days from December 22, 2009 to February 10, 201, and 33 days from February 11, 2010 to March 31 of the same year.

[Reasons for Recognition] Facts without dispute, entry in Eul evidence Nos. 1, 2-1, 2-2, Eul evidence Nos. 4-1, 2-2, Eul evidence Nos. 5, 6, 7, 8, the purport of the whole pleadings

D. Determination

(1) The absence of grounds for disciplinary action

According to the above evidence and the purport of the whole argument, it can be recognized that the report on the establishment of a major worker who was active by the plaintiff as a member of the union can only be engaged in the affairs of the union with the consent of the appointment authority, and Article 7 (1) of the Public Officials' Union Act provides that the full-time officer of the union can not work without the consent of the appointment authority, and it is not justified to leave the workplace without the permission of the appointment authority or leave from the workplace to work as a full-time officer without the consent of the appointment authority. In addition, it is not justified to leave the workplace without the permission of the plaintiff's superior, and the above business trip was returned. On December 11, 2009, the plaintiff left the workplace without permission even before filing an application for temporary retirement with the defendant, and continued absence without permission even after the application for temporary retirement was rejected. Therefore, the plaintiff's assertion that leaving the workplace without permission or absence without permission constitutes a violation of the Plaintiff's duty of good faith and duty of prohibition under the Local Public Officials Act.

(2) Defect in the disciplinary procedure

A public official disciplinary committee shall not make a disciplinary decision on a ground other than the grounds for disciplinary action for which a disciplinary decision is requested by the person who requested the disciplinary decision, but if a disciplinary decision is made on a ground of disciplinary action for unauthorized absence until the time the disciplinary decision is requested, if the disciplinary committee has continued to do so, the number of days of unauthorized absence is more than the number initially requested until the disciplinary decision is made, even if the disciplinary committee first requested the disciplinary decision, it does not change the identity of the basic fact of unauthorized absence, and it does not interfere with the plaintiff's exercise of his right to defense, so it cannot be deemed a disciplinary decision on a matter without a disciplinary request (see Supreme Court Decision 84 - 299 delivered on September 25, 1984).

As seen earlier, the Defendant requested the personnel committee to make a disciplinary resolution on the ground of the Plaintiff’s absence from office for 19 days from February 21, 2009 to December 21, 200 of the same year. The personnel committee at Ansan shall add 35 days without permission from December 22, 2009 to February 10, 201. Furthermore, the Gyeonggi-do personnel committee shall be deemed to have caused the Plaintiff’s absence from office without permission for 33 days from February 11, 2010 to March 31, 2010, and the Plaintiff’s absence from office for the reason for disciplinary resolution on the ground that the Plaintiff’s absence from office, the personnel committee committee, and the OOO’s absence from office for the reason for disciplinary resolution on the ground that the Plaintiff’s absence from office without permission, and the Plaintiff’s absence from office for 30 days from 30 days from 200 to 30 days from 10 days from 200.

(3) The illegality of a disciplinary action

When disciplinary action is imposed on a person subject to disciplinary action who is a public official, it is at the discretion of the person having authority to take disciplinary action. However, the disciplinary action is illegal only when it is deemed that the person having authority to take disciplinary action significantly lacks validity under the social norms, and the person having authority to take disciplinary action has been placed at the discretion.

According to the overall purport of evidence Nos. 8 and 9, the defendant and the plaintiff's superior and Dong members wanted to take the plaintiff's preference, and the plaintiff's appointment after August 12, 1995 did not have been subject to a disciplinary measure before the disposition of this case. However, the plaintiff left his workplace without the consent of his superior, and the plaintiff was absent from work without the permission of his superior, and the plaintiff was absent from work without the permission of his/her superior, and the public official cannot act as his/her full-time officer without the consent of the appointment authority, but the plaintiff was absent from work for 87 days from November 25, 2009 to March 31, 2010, while the plaintiff was absent from work without permission, the plaintiff was unable to perform his/her official duties for that period without permission, and the plaintiff was unable to be viewed as being absent from work without permission due to the violation of the principle of proportionality and thus, the plaintiff's duty cannot be viewed as being in full view of the above part of his/her discretion.

(4) Non-existence and defect of disciplinary authority

Article 6 (1) of the Local Public Officials Act provides that "the head of a local government shall have the authority to appoint, suspend, dismiss, and punish public officials under his/her jurisdiction (the authority to appoint)" and Article 6 (2) of the same Act provides that "any person who has the authority to appoint under paragraph (1) may delegate part of his/her authority to the head of a subsidiary organization, the head of an affiliated organization, etc., as prescribed by municipal ordinance of the local government. In the event of inside and outside, under Article 2 of the Ordinance on the Quota of Administrative Organizations and Public Officials, the head of an OO hasO and0 organizations as subordinate administrative agencies, and under Article 2 of the Ordinance on the Delegation of Administrative Affairs (attached Form) of the OOO market, affairs concerning appointment, such as disciplinary action against public officials in general service, technical service, and extraordinary service, are delegated to the head of the Gu. Therefore, since the head of the Gu has the authority to take disciplinary action against the plaintiff, the plaintiff's assertion is without merit.

In addition, according to Articles 7 and 8 of the Local Public Officials Act and Article 1-3 (2) 3 of the Local Public Officials Discipline and Appeal Regulations, Article 7(1) of the Local Public Officials Act provides that a case of heavy disciplinary action against public officials of Grade VI or lower in general service, researchers, and instructors belonging to a Si/Gun/Gu affiliated agency, which is established by the committee pursuant to Article 7(1) of the Local Public Officials Act, shall be under the jurisdiction of the Si/Gun/Gu Personnel Committee. Article 72(2) of the Local Public Officials Act provides that where the head of the agency that requested a disciplinary resolution, etc., deems that the decision of the personnel committee is somewhat unfavorable, he/she may request a review or reexamination to the personnel committee established in the immediately higher agency before he/she takes the disposition. "Inasmuch as the provision provides that the plaintiff's OO of the defendant with respect to the plaintiff, it cannot be deemed that there is any procedural defect in the review of the personnel committee established in the Do, which is the immediately higher agency at O, and this part of the plaintiff's assertion also is without merit.

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