2016Guhap63965 Disposition of revocation of dismissal

○ ○

Prosecutor General;

October 7, 2016

November 25, 2016

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 November 23, 2015 is revoked.

1. Details of the disposition;

A. On September 17, 1990, the Plaintiff was appointed as the Assistant Inspector to the Prosecutor’s Office. On May 1, 2006, the Plaintiff promoted to the Prosecutor’s Office. From August 23, 2015, the Plaintiff served in the Changwon’s Office Investigation Division.

B. The Busan High Prosecutor’s Office General Disciplinary Committee held on November 10, 2015 and decided to dismiss the Plaintiff on the following grounds. The Defendant on November 23, 2015:

A disciplinary measure of dismissal was taken (hereinafter referred to as the "disposition of this case").

A person shall be appointed.

C. Accordingly, the Plaintiff filed an appeal review with the appeals review committee. The appeals review committee did not recognize the grounds for disciplinary action No. 3, but decided to dismiss the appeal on March 17, 2016 on the ground that the Defendant cannot be deemed to have abused discretion in light of the remaining grounds for disciplinary action and the degree of misconduct or the degree of the offense.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2 and 18, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Absence of grounds for disciplinary action

The Plaintiff, not for the purpose of linking with the Kim○-○, went to the dwelling of Kim○-○, which would lead to the movement of Kim○-○, and the Plaintiff and Kim○-○ entered the dwelling of Kim○-○, which is a member of the mountain conference, which was friendly. The Plaintiff, who went to the balcony at Kim○-○’s residential balcony, but went to the hospital after taking clothes from Kim○-○, and then went to the hospital, cannot be deemed to have a duty to report the progress of the injury. The Plaintiff, when undergoing an investigation at the competition, was stated as a company member at the public prosecutor’s office. However, the Plaintiff reported it to the public prosecutor’s office affiliated with the police investigation on the day following the date of the investigation, did not order the destruction of evidence to the Kim○-○, and did not order the destruction of evidence to the Kim○-○-○, but did not instruct the destruction of evidence. Therefore, there was no reason for disciplinary action in both subparagraphs 1 through 6.

2) A deviation from and abuse of discretionary power;

The grounds for the disciplinary action presented by the Defendant are both occurred in the private sphere of an individual, and thus, the dismissal disposition on this ground is not only inconsistent with the internal disciplinary guidelines of the prosecution, but also harshly harsh in light of the Plaintiff’s serious reflectivity, ordinary work attitude and performance record, livelihood, and the source of the person concerned in the instant case. Accordingly, the instant disposition is unlawful by deviating from and abusing discretionary authority.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Whether grounds for disciplinary action exist or not

According to the overall purport of Gap's evidence Nos. 3, 4, 12, and 18 (which include numbers; hereinafter the same shall apply), Eul's evidence Nos. 4, 6 through 9, 11 through 15, and 17 through 19, and the whole purport of the arguments and arguments, the plaintiff and Kim ○ became aware of the members of the mountain conference around October 2014, and sent and sent autonomous telephone conversations and text messages to one another and closely living together with them. The plaintiff and Kim ○○ entered the mountain conference around March 28, 2015, after completion of a meeting of Kim○○○'s apartment on March 22, 2015, and after completion of a meeting of around 30, the plaintiff and Kim ○○ entered the plaintiff's husband's Kim Jong-ok's apartment building, and the plaintiff's plaintiff's plaintiff and the plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's 1 and the plaintiff's plaintiff's plaintiff's 5.

The facts that the plaintiff entered the apartment house again, the plaintiff was found in the emergency room of the hospital and received medical treatment, and thereafter applied for sick leave. The plaintiff then received a summary order of KRW 2 million after being investigated by the police and the prosecutor, and received a fine of KRW 2 million due to a suspected incident such as intrusion upon residence, etc., and confirmed that such summary order became final and conclusive, and the plaintiff sent a text message to Kim○○, his husband, and her husband and son who sent the text message to Kim○○ as he knew.

The following circumstances, which are acknowledged based on the above facts and other evidence, namely, ① the contents of telephone conversations or text messages sent and received by Won high level and Kim ○○ (Evidence B No. 10 and 11) goes beyond the relationship between members of the friendly mountain conference, and there was a big dispute between the Plaintiff and the original wife who became aware of such facts (Evidence B No. 12), ② The Plaintiff and Kim Jong-chul in the instant case

In light of the following facts: (a) the telephone communications content (No. 7 No. 7) divided by ○○, or the Plaintiff and her family members, the Plaintiff appears to have entered the Ampha of Kim○○ in order to conduct a sexual act with Kim○○; (b) the Plaintiff was an act against the husband or her will; and (c) the Plaintiff was anticipated to be an issue of this fact; (b) the Plaintiff argued that ○○ was injured by assaulting her her son from her son of Kim○○, and that she was injured by her her son.

In light of the fact that the husband or the child of Kim○○○ instructed the investigation agency to make a statement, and that the husband or the child was a passive attitude in the investigation of several agencies, the grounds for disciplinary action Nos. 1, 2, and 6 are fully recognized.

However, when the plaintiff fells in the balcony while he was scam with the children of Kim○○, the plaintiff had no choice but to go back to the surrounding area of the apartment in some cases. The plaintiff applied for sick leave by being hospitalized in the hospital with the injury and the reason for the application for sick leave.

If a medical certificate, which is attached to a document, is true, even if it was reported differently from the fact, it shall not be deemed a false report and shall not be deemed a ground for disciplinary action. Also, it is difficult to view that the Plaintiff has a duty to make a true statement only in response to the investigation conducted by the investigative agency, and even if the Plaintiff made a false statement in the police station, it is not possible to make a disadvantageous disposition against the Plaintiff. In light of the above, the grounds for disciplinary action Nos. 3 through

Therefore, this part of the plaintiff's assertion is justified.

2) Whether the discretionary authority is deviates or abused or not

In the case of disciplinary action against a person subject to disciplinary action who is a public official, it is at the discretion of the person having authority to take the disciplinary action. However, the disciplinary action taken by the person having authority to take the disciplinary action as the exercise of discretion has considerably lost validity under the social norms, and has abused the discretionary power to the person

In order to deem that a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be deemed unlawful only if it is deemed that the content of the disciplinary measure is objectively unreasonable, in full view of various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, and the criteria for the definition of the disciplinary measure (see Supreme Court Decision 2010Du16172, Nov. 11, 2010, etc.).

However, according to the statement in Eul evidence No. 1, the plaintiff was subject to a disciplinary measure for one month from office on June 22, 2015, and a summary order for a fine of KRW 7 million on June 29, 2015 is acknowledged, as the plaintiff was under criminal punishment and disciplinary action as mentioned above, when he/she was under criminal punishment and disciplinary action, and was under the same act as grounds for disciplinary action No. 1, 2, and 6, even if he/she was under the circumstances where he/she was under criminal punishment and disciplinary action. In addition, the plaintiff committed the same act as grounds for disciplinary action No. 6.

Article 5 (1) of the former Enforcement Rule (amended by Ordinance of the Prime Minister No. 1220 of Dec. 29, 2015) provides that if two or more misconducts that are irrelevant to one another are concurrent, one step above the disciplinary action that is more responsible, may be decided." Article 2 (1) and [Attachment Table 1] of the Enforcement Rule of the same Act provides that where the degree of misconduct in violation of the duty to maintain dignity is serious and intentional, removal - removal is possible in the case of a violation of the duty to maintain dignity, and where the degree of such misconduct is serious and intentional, it shall be determined that the public official's punishment should not be applied in light of the above legal principles. In addition, Article 4 (3) and [Attachment 1] of the former Enforcement Rule of the Public Prosecutor's Office Regulation (amended by Ordinance of the Prime Office No. 1220 of Dec. 29, 2015) provides that a disciplinary action, which is a public official of the Supreme Prosecutors' Office, shall not be considered to be a disciplinary action.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit, and the costs of lawsuit shall be borne by the plaintiff who has lost. It is decided as per the text of the lawsuit.

Judges and decoration of the presiding judge;

Judges Lee Dong-gu

Judge Lee Jong-hoon

1) According to Gap evidence Nos. 1 and 2, the date of the dismissal disposition by the defendant is " November 23, 2015." Thus, the date of the disposition stated in the purport of the claim is a clerical error.

Site of separate sheet

Relevant statutes

▣ 국가공무원법

Article 63 (Duty to Maintain Dignity)

No public official shall commit any act detrimental to his/her dignity, regardless of whether it is for his/her duties.

Article 78 (Grounds for Discipline)

(1) If a public official falls under any of the following subparagraphs, he/she shall request a resolution of disciplinary action and take a disciplinary action according to the result of the resolution of disciplinary action:

1. Where he/she violates this Act or any order issued under this Act;

2. Any duty in the course of performing his duties (including such duty as imposed on the status of public officials in other Acts and subordinate statutes) or any position;

when he neglected to do so;

3. Where he commits an act detrimental to his prestige or dignity, regardless of a connection with his duties.

▣ 공무원징계령

Article 17 (Determination on Degree of Disciplinary Action, etc.)

When a disciplinary committee makes a resolution on disciplinary action, etc., it shall take into account the usual behaviors, performance records, achievements (or achievements), degree of penance of the suspect subject to disciplinary action, etc., details of the request for disciplinary action, etc., and other circumstances.

▣ 구 공무원징계령 시행규칙 ( 2015 . 12 . 29 . 총리령 제1220호로 개정되기 전의 것 )

Article 2 (Criteria for Disciplinary Action or Disciplinary Additional Charges)

(1) The Disciplinary Committee shall make a decision on disciplinary action or disciplinary surcharge (hereinafter referred to as "measures, etc.") in accordance with the criteria for disciplinary action in attached Table 1, the criteria for disciplinary action in attached Table 1-2, and the criteria for disciplinary action against drunk driving in attached Table 1-3, and the surcharges for disciplinary action in accordance with disciplinary action in attached Table 1-3 of the State Public Officials Act (hereinafter referred to as "due surcharges for disciplinary action") in consideration of the type of misconduct, degree of misconduct, severity of negligence, degree of conduct, performance, public affairs, active performance of relevant duties, such as performance of duties, regulatory reform, national tasks, etc., degree of penance, other circumstances, etc.

Article 4 (Reduction of Disciplinary Action)

(1) The Disciplinary Committee may reduce disciplinary action in accordance with the criteria for mitigation of disciplinary action specified in attached Table 3 where a person for whom a disciplinary resolution has been requested has rendered any of the following meritorious services: Provided, That if the relevant public official has received a disciplinary action or a warning under this Rule, the public service prior to the disciplinary action or warning shall be excluded from public service subject to mitigation; and if the grounds for disciplinary action under Article 83-2 (1) of the State Public Officials Act for misconduct for which the period of prescription is five years, sexual crimes under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, sexual trafficking under the Act on the Punishment, etc. of Acts of Arranging Sexual Crimes, sexual harassment under subparagraph 3 (d) of Article 2 of the National Human Rights Commission of Korea, sexual harassment under Article 4 (1) of the Road Traffic Act, and disciplinary action against a person liable for registration pursuant to Article 8-2 (1) 4 or 22 of the Public Service Ethics Act, a resolution on disciplinary action against him/her shall not be mitigated:

1. A meritorious service awarded a decoration or medal under the Awards and Decorations Act;

2. An official commendation of at least the Prime Minister pursuant to the Regulations on the Official Commendation of the Government (limited to the official commendation and the creative commendation; hereafter the same shall apply in this subparagraph);

public officials of Grade VI or lower, researchers, instructors, and public officials in technical service at the time of committing misconduct: Provided, That the central administrative officer at the time of committing misconduct

The head of the agency (including the head of the agency equivalent to the head of the agency) who has received an official commendation;

3. A meritorious service selected as an exemplary public official pursuant to the Regulations for Exemplary Officials;

Article 5 (Aggravation of Disciplinary Action)

(1) Where at least two misconducts unrelated to one another are concurrent, the Disciplinary Committee may decide on a disciplinary action at least one step above the disciplinary action against which the responsibility between them is grave.

(2) Where a disciplinary committee again requests a disciplinary resolution for a misconduct that occurred during the period of restriction on promotion under Article 32 of the Decree on Appointment of Public Officials, it may make a disciplinary resolution for a person subject to disciplinary action at two levels above the disciplinary action corresponding to the relevant misconduct, and where a disciplinary resolution for a misconduct that occurred within one year after the period of restriction on promotion is terminated, it may make a resolution for a disciplinary action at one level above the disciplinary action.

[Attachment 1]

Criteria for Disciplinary Action (related to Article 2 (1))