(영문) 서울행정법원 2019.3.21. 선고 2018구합74525 판결

A. From January 6, 2014 to December 25, 2014, the Plaintiff was in charge of prior deliberation by the personnel committee for promotion of public officials belonging to B Office of Education as the chairperson of the personnel committee as the vice superintendent of the B Office of Education.

B. On January 19, 2018, the Central Disciplinary Committee decided to reprimand the Plaintiff on the ground that the Plaintiff violated Article 56 (Duty of Good Faith) of the State Public Officials Act due to grounds for disciplinary action as follows. On February 5, 2018, the Defendant issued a reprimand against the Plaintiff (hereinafter “instant disposition”).

A person shall be appointed.

C. The Plaintiff filed a petition review with the Ministry of Personnel Management regarding the instant disposition, but the appeals review committee decided on May 18, 2018 that the Plaintiff’s petition is dismissed.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 1, Eul evidence 3, and the purport of whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Claim of procedural defect

The instant disposition was made in accordance with the request for disciplinary action by the Board of Audit and Inspection. According to Article 32-2(2) of the Board of Audit and Inspection Act, the Board of Audit and Inspection shall notify the head of its affiliated agency of the relevant fact within 10 days when the investigation on a specific case was commenced and completed. However, the Board of Audit and Inspection did not notify the Defendant, the head of the Plaintiff’s affiliated agency, of the commencement of an investigation in the process of the request for disciplinary action, and the request for disciplinary action was made without due process of notification of the commencement of an investigation. The Board of Audit and Inspection pointed out that the notification of an investigation was omitted after the Defendant received the request for disciplinary action, and notified the Defendant of the commencement of an investigation on the request for disciplinary action on September 19, 2017. As such, the defect of omission of

2) The intent and assertion of the statute of limitations

The ground for disciplinary action No. 1 among the grounds for the instant disposition is that the Plaintiff formally operated the Personnel Committee on August 21, 2014. However, since the Board of Audit and Inspection imposed a request for disciplinary action on the Defendant without notifying the commencement of an investigation, it cannot be deemed that the statute of limitations is suspended as provided in Article 32-2 of the Board of Audit and Inspection Act. Thus, the instant disposition subject to disciplinary action after three years from the time the said Personnel Committee was established is unlawful.

3) The non-existence of grounds for disposition

In the case of the B Office of Education to which the Plaintiff was affiliated, there is time and physical difficulty in implementing a personnel order after undergoing deliberation and resolution by the personnel committee. Accordingly, the B Office of Education has a practice of submitting a personnel order to the personnel committee for deliberation on promotion after formulating a personnel order plan in advance. In addition, even if the B Office of Education established a personnel order plan in advance, it is possible to reverse the plan in the process of deliberation by the personnel committee, not the final decision of deliberation on promotion. Therefore, the Plaintiff cannot be deemed to have adversely affected the personnel committee solely on the ground that the pre-approval of the personnel order plan or the statement of the position and name of the person to be promoted was made in the deliberation on promotion. Therefore, the grounds for the first and second disciplinary actions cannot be deemed to have violated the duty

4) Unfair assertion of disciplinary action

Even if the grounds for the instant disposition are recognized, in cases similar to the grounds for the first and second disciplinary actions, the instant disposition is beyond the scope of discretion, or abuse of discretionary authority, in full view of all circumstances, such as the fact that: (a) the promotion of caution, etc. was conducted; (b) there was no actual disciplinary action, such as the instant disposition; (c) the Plaintiff has faithfully performed public office life so far; and (d) the Plaintiff has been promoting class 1 in advance.

B. Relevant statutes

It is as shown in the attached Form.

The following facts may be acknowledged by taking into account the absence of dispute between the parties or the whole purport of each of the evidence and evidence set forth in subparagraphs B-1 through 4 above and the whole pleadings:

1) From March 20, 2017 to April 14, 2017, the Board of Audit and Inspection conducted an on-site audit on the Regional Office of Education (Gwangju, Ulsanwon, and Chungcheongbuk) by focusing on the operation and management of local education finance, personnel and learning environment management, and confirmation of the implementation management of audit results.

2) The Board of Audit and Inspection discovered that the following prior decisions were made to the Office of Education B of Audit and Inspection:

On June 23, 2014, the Plaintiff was requested by the superintendent of the competent office of education to determine E as the fourth promotion. D, which had been the chief of the competent office of education of B which received the same contents from the superintendent of the competent office of education, attended the Personnel Committee and made a statement of the recommendation of E as the fourth promotion to the fourth promotion. However, the personnel committee members expressed the dissenting opinion on the ground that there was no case in which the first priority was disqualified, but the first priority was decided as the subordinate promotion. Although the Plaintiff did not vote on the above agenda, the first and second priority among the six personnel committee members were decided as the fourth priority promotion.OD again received from the superintendent of the competent office of education the fact that it was necessary to determine E as the fourth promotion, and after establishing the Personnel Committee for Deliberation to the second and fourth Grade 4 local public officials, the Plaintiff and the Superintendent of the competent Office of Education decided as the second Grade 4 local public officials and the second Grade 4 local public officials on August 21, 2014.

In addition, D established a personnel order plan to appoint three public officials of Grade 5, who are subordinate to the list of candidates for promotion, on two occasions on June 19, 2015, and submitted it to the personnel committee. The Plaintiff considered that there is a problem in the personnel order plan to appoint the public officials of Grade 4, who are subordinate to the list of candidates for promotion, prior to the deliberation of the personnel committee, but did not return the personnel order plan prepared by the personnel committee. On August 25, 2014, the Plaintiff settled the plan without returning the personnel order plan prepared by the personnel committee, and decided as the personnel order plan to be approved in advance by the personnel committee committee to present the proposal to the person to be promoted. On January 1, 2015, the Plaintiff approved the personnel order of Grade 4, which was determined as the person to be promoted in advance, and then decided as the personnel order of the person to be promoted in accordance with the personnel management committee plan to be held on December 29, 2014.

3) On July 25, 2017, the Board of Audit and Inspection, in accordance with the above audit results, notified the Defendant of the matters requesting disposition of audit results, including the details requesting a minor disciplinary action against the Plaintiff.

4) On August 16, 2017, the Defendant filed a request for reexamination on the grounds that the request for disciplinary action by the Board of Audit and Inspection was unlawful because it did not notify the commencement of an investigation pursuant to Article 36(2) of the Board of Audit and Inspection Act. Accordingly, on September 19, 2017, the Board of Audit and Inspection notified the Defendant of the commencement of an investigation regarding the Plaintiff’s misconduct, and notified the Defendant of the result of reexamination that the Defendant’s request for reexamination was dismissed on November 14, 2

5) Upon the dismissal of review as above, the Defendant requested the Central Disciplinary Committee to make a disciplinary resolution against the Plaintiff on December 1, 2017 upon the request of the Board of Audit and Inspection for disciplinary action, and the Central Disciplinary Committee passed a disciplinary resolution against the Plaintiff on January 19, 2018, as seen earlier.

D. Determination as to the legitimacy of the instant disposition

1) Determination on procedural defects and the intention and assertion of the statute of limitations

A) Contents of the relevant provisions

Article 32-2 (2) of the Board of Audit and Inspection Act provides that the Board of Audit and Inspection shall notify the relevant facts to the head of the agency to which the Board of Audit and Inspection belongs within ten days after the commencement or completion of an investigation, and Article 32-2 (1) of the Board of Audit and Inspection Act provides that the procedure of disciplinary action shall not be initiated with respect to a specific case under an investigation by the Board of Audit and Inspection. In addition, Article 32-2 (3) of the Board of Audit and Inspection Act provides that where the period of prescription of the grounds for disciplinary action prescribed by statutes has expired or the remaining period is less than one month due to the failure of the Board of Audit and Inspection to proceed with the investigation due to the notice of commencement of the investigation by the Board of Audit and Inspection, the period of prescription shall be deemed to expire one month after the date of receipt of the notice of completion of the investigation or the request for disciplinary action by the Board of Audit

Meanwhile, Article 83(1) and (3) of the State Public Officials Act provides that when the Board of Audit and Inspection initiates an investigation and completes it, it shall notify the head of the agency to which the Board of Audit and Inspection belongs of the fact within ten days, and shall not proceed with a request for disciplinary decision or other disciplinary procedures from the date of receipt of notice of commencement of an investigation. In addition, Article 83-2(2) of the State Public Officials Act provides that disciplinary action shall expire when the period of prescription expires or the remaining period is less than one month after the date of receipt of notice of completion of an investigation by the Board of Audit and Inspection.

B) Determination of procedural defect assertion

Although the Board of Audit and Inspection finds the plaintiff that there was an unfair prior decision by local public officials subject to promotion while conducting an on-the-spot audit of the B Office of Education, the fact that the notice of the request for disposition of audit results on July 25, 2017 to the defendant, who is the head of the agency to which the plaintiff belongs, was given by the Board of Audit and Inspection without notifying the defendant as the head of the agency to which the plaintiff belongs of the investigation, is as seen above, and Article 83 (3) of the State Public Officials Act and Article 32-2 (2) of the Board of Audit and Inspection

However, according to the above relevant provisions, if the Board of Audit and Inspection notified the investigation of the investigation, it provides that the head of the agency to which the Board of Audit and Inspection belongs shall not proceed with the procedures of disciplinary action or reprimand, and if disciplinary action is completed for a period not exceeding one month from the date of notification of the completion of the investigation, it is recognized that the statute of limitations shall be extended by one month from the date of notification of the completion of the investigation.

Considering the subject matter of notification of investigation and the effect of notification of investigation, it is reasonable to interpret that notification of investigation by the Board of Audit and Inspection is not to guarantee procedural rights such as the opportunity to state opinions according to the contents of investigation by the Board of Audit and Inspection, but to prevent avoidance of authority of the Board of Audit and Inspection by imposing minor disciplinary measures against the suspect before the result of investigation by the Board of Audit and Inspection without relation to the results of investigation by the Board of Audit and Inspection.

Considering the legal nature of notification of the commencement of an investigation by the Board of Audit and Inspection recognized in accordance with the interpretation of the relevant provisions, even if the Board of Audit and Inspection violated the statutes and did not notify the Defendant, the head of the affiliated agency, of the commencement of an investigation, the request for disciplinary action by the Board of Audit and Inspection cannot be deemed unlawful solely on such grounds, and it is reasonable to deem that any defect in omission of notification of the commencement of an investigation could not affect the disciplinary procedure against the Plaintiff. Therefore

C) Determination on the intent and argument of the statute of limitations

(1) Of the instant disposition, the ground for disciplinary action No. 1 is that the Plaintiff, the chairperson of the personnel committee of B Office of Education, was formally deliberated by the personnel committee on August 21, 2014, and the Board of Audit and Inspection notified the Defendant, the head of the agency to which the Plaintiff belongs, of the commencement of investigation on September 19, 2017, after three years have passed since the period of prescription from the Plaintiff, and the Defendant requested the Central Disciplinary Committee to take disciplinary action against the Plaintiff on December 1, 2017 upon the request of the Board of Audit and Inspection at the Board of Audit and Inspection at the Board of Audit and Inspection at the time of December 1, 2017. Accordingly, it is reasonable to view that the ground for disciplinary action No. 1 out of the instant disposition cannot be deemed the ground for disciplinary action as the lapse

(2) As to this, the Defendant’s request for disciplinary action against the Defendant by the Board of Audit and Inspection was made on July 25, 2017, the extinctive prescription period of the first disciplinary ground, and the Defendant’s request for disciplinary action against the Board of Audit and Inspection on August 16, 2017, which was not possible to proceed with the disciplinary procedure due to the Defendant’s request for reexamination. Article 32-2(3) of the Board of Audit and Inspection Act provides that where a request for reexamination is made, the statute of limitations shall be imposed on the date one month has elapsed from the date the decision on reexamination was notified. As such, the first disciplinary ground is asserted to the effect that the statute of limitations period did

Considering the following circumstances recognized in accordance with the relevant provisions, the Defendant’s assertion that disciplinary action is subject to extinctive prescription at the expiration of one month from the date the Defendant was notified of the decision of review by the Board of Audit and Inspection has no merit.

Since the grounds such as suspending the progress of the statute of limitations or extending the statute of limitations on disciplinary action have a direct and important impact on the rights and interests of the people, it is reasonable to deem that the grounds can be recognized in the absence of explicit statutory provisions.

According to Article 32-2(3) of the Board of Audit and Inspection Act and Article 83-2(2) of the State Public Officials Act, where the Board of Audit and Inspection notifies the commencement of an investigation, the person having authority over disciplinary action shall not proceed with the disciplinary procedure. Accordingly, in the event the statute of limitations for a disciplinary action is completed, the statute of limitations shall be extended by one month after the date of the inspection by the Board of Audit and Inspection, and where a request for review is made by the Board of Audit and Inspection, the statute of limitations shall be extended by one month after the date of the inspection by the Board of Audit and Inspection. Furthermore, the provisions of Article 36 of the Board of Audit and Inspection Act, which provides the procedures for requesting

Article 32-2(3) of the Board of Audit and Inspection Act provides that the period of extinctive prescription shall expire on the date one month has elapsed from the date when the decision on reexamination was notified pursuant to Article 36(2) of the Board of Audit and Inspection Act where a request for reexamination is made by the head of the agency to which he/she belongs. However, this provision is based on the premise that the period of extinctive prescription has expired due to the failure to proceed with the disciplinary procedure due to the notification of commencement of the investigation by the Board of Audit and Inspection. Therefore, if a request for reexamination is made based on this premise, it shall not be interpreted separately as a ground for suspending the period of extinctive prescription. Even if the content of Article 11 of the Rules on Review by the Board of Audit and Inspection

(3) Therefore, the plaintiff's assertion that the ground for the first disciplinary action is subject to the statute of limitations is with merit.

3) Determination as to the non-existence of grounds for disposition

A) Article 56 of the State Public Officials Act provides that “All public officials shall observe Acts and subordinate statutes, and perform their duties faithfully.” Such duty of good faith is the most fundamental and important duty imposed on public officials, which is to ensure the public interest as much as possible and to prevent the disadvantages therefrom, and to faithfully perform their duties in good faith (see, e.g., Supreme Court Decisions 88Nu3161, May 23, 1989; 2017Du47472, Nov. 9, 2017).

B) Considering the aforementioned evidence, the facts acknowledged earlier, the contents of the relevant statutes, and the purport of the entire pleadings, it is reasonable to deem that the Plaintiff has grounds for disciplinary action against the violation of the duty of good faith provided by Article 56 of the State Public Officials Act. Therefore, the Plaintiff’s assertion on this part is without merit

Article 8(1)3 of the Local Public Officials Act provides that a prior deliberation on the promotion of public officials shall be conducted by affairs of the personnel committee. Article 39(3) and (4) of the Local Public Officials Act provides that promotion shall be made from among subordinate public officials in the same series of class, who are appointed from among subordinate public officials in the order of high priority in the list of candidates for promotion, but shall undergo a prior deliberation by the personnel committee concerned. Article 38-5 of the Decree on the Appointment of Local Public Officials provides that the appointment authority shall comply with

○ As above, the purport of the provision that the Act and subordinate statutes related to local public officials must undergo prior deliberation by the personnel committee at the time of promotion and, in principle, follow the results of such prior deliberation is to check the arbitrary promotion of local public officials with the authority to appoint local public officials. Therefore, in light of the meaning of the "prior deliberation", it is reasonable to view that multiple persons subject to prior deliberation by the personnel committee should be recommended, unless there are special circumstances.

Therefore, unlike the order of priority in the list of candidates for promotion before the opening of the personnel committee, it is reasonable to interpret that the act of setting a specific person for promotion as a proposal for deliberation by the personnel committee is in violation of the provisions of the personnel committee in advance.

○ As the grounds for disciplinary action prescribed in Article 2, the Plaintiff approved the “plan for the personnel order of local public officials on January 1, 2015, 2015, which was proposed by the head of the general affairs division D, who belongs to B Office of Education prior to the opening of the personnel committee on January 1, 2014.” The Plaintiff also recognized the facts presented as they were the deliberation of the personnel committee in which the position and name of the person subject to promotion, which was stated in accordance with the above personnel order plan. Therefore, if the Plaintiff, who is the chairman of the personnel committee, approved the documents presented before the deliberation of the person subject to promotion before the personnel committee committee, and submitted them as they were, as they were, to the deliberation of the personnel committee committee in writing, it is reasonable to deem that

4) Determination as to the wrongful assertion of disciplinary action

A) Whether to take a disciplinary measure against a person subject to disciplinary action, who is a public official, is 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 responsible to the person having authority to take the disciplinary measure as a result of the exercise of the discretionary power, it shall be deemed that the disciplinary measure against a public official has been unlawful, only when it is recognized that the person having authority to take the disciplinary measure has abused the discretionary power that has been responsible to the person having authority to take the disciplinary measure. In order to deem that a disciplinary measure against a public official has considerably lost validity under social norms, it shall be deemed that the contents of the disciplinary measure can be objectively and clearly recognized when comprehensively considering various factors, such as the content and nature of the misconduct causing the disciplinary measure, administrative purpose that the person intends to achieve through the disciplinary measure, the criteria for the determination of the disciplinary measure, etc. (see, e.g., Supreme Court Decision 97Nu14637, Nov. 25, 197).

B) In light of the above legal principles, the determination of disciplinary action against the Plaintiff ought to be deemed appropriate in light of the grounds for disciplinary action No. 2 recognized to the Plaintiff.

Considering the following circumstances, the instant disposition is deemed unlawful as it goes beyond the discretionary power, in light of each of the aforementioned evidence, Gap evidence Nos. 2 through 9, Eul evidence Nos. 5 and 6’s overall purport of arguments and arguments.

C. In order to promote the livelihood stability of local public officials, the Office of Education operates the pre-announcement system that implements personnel orders 10 days prior to the date of appointment. However, this system is intended to enhance the fairness and transparency of personnel affairs by giving prior notice of personnel appointment plans and standards prior to the date of appointment, and it is not against the personnel committee’s prior-announcement system. In particular, the pre-announcement system under this system is not a system that instructs the overall personnel direction, and it is not a system that actually determines the person subject to the personnel committee’s prior-announcement system. If it is impossible to follow the date of personnel appointment as prescribed under the pre-announcement system due to certain circumstances of the personnel committee, it is reasonable to postpone the date of personnel appointment, and it is inappropriate to determine the person subject to promotion prior to the personnel committee’s deliberation in order to comply with the date of personnel appointment, and to present the details of such determination to the personnel committee. In fact, it is not necessary to determine the person subject to the prior-announcement system prior to the date of personnel appointment.

The plaintiff asserts that the Office of Education approved the personnel order plan in accordance with the explanation by the Director D of the General Affairs Division D, to the effect that it is necessary to approve the personnel order plan in advance because it has difficulty in implementing the personnel order immediately after deliberation and resolution of the personnel committee. However, if there are such circumstances, it is necessary to establish and approve the personnel order plan in consideration of the possibility of deciding the person to be promoted in the order of priority, and in fact, only the personnel order plan reflecting the person to be promoted designated by the Superintendent of the Office of Education was created and only it was presented to the personnel committee. The plaintiff, who was the vice Superintendent of the Office of Education and the chairman of the personnel committee, is in the position to have raised the problem about the plan of D. However, no measures was taken.

○ In particular, the Plaintiff was aware that there was no case in which the person of the first priority was disqualified on June 23, 2014, and that there was no case in which the person of the first priority was determined as the person of the subordinate status. Nevertheless, on January 1, 2015, the method of submitting the personnel order plan already determined in the personnel order issued on January 1, 2015, was used to the personnel committee and was promoted on behalf of the fourth and fifth persons on behalf of the third and fourth persons. Accordingly, the Plaintiff may not be held liable to the Plaintiff.

Although the Board of Audit and Inspection has discovered several cases before deliberation by the personnel committee in various local governments, local offices of education, etc., it did not take measures to urge the head of local government or the superintendent of local office of education, etc. to take caution, but did not request disciplinary action against the actual workers. In addition, the Board of Audit and Inspection requested the Defendant for minor disciplinary action on the ground that not only the plaintiff but also the subsequent assistant superintendent of education operated the personnel committee formally, as a result of the audit of the B Office of Education, the Board of Audit and Inspection requested the Defendant for minor disciplinary action on the ground that the latter operated the personnel committee in the form after the plaintiff. In addition, the Central Disciplinary Committee took a measure of "regument" by reducing the "regument" on the ground that there was a meritorious reason for disciplinary action against the

On the other hand, while the plaintiff was in office as a senior public official, there was no record of disciplinary action so far, and the degree of integrity has received the average of the group and institution from the evaluation score, and the results of service have also been excellent.

As above, even though the Plaintiff’s work force and attitude are very good, and there is no example of disciplinary action in similar cases, it cannot be held that the Defendant’s instant disposition, which selected the reprimand, the most minor disciplinary action under the State Public Officials Act, deviates from or abused the scope of discretion, unless the grounds for disciplinary action are recognized and there exist any grounds for reducing disciplinary action.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.