[Plaintiff, Appellant]
[Defendant, Appellee]
[Judgment Below]
Seoul High Court Decision 88Gu1563 rendered on December 23, 1988
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
1. As to Grounds of Appeal Nos. 1, 2, and 3.
According to the reasoning of the judgment below, the court below found, based on the evidence cited, that the Plaintiff was appointed on April 17, 1985 by the Defendant to the position of Director of the Urban Affairs Division of the county (郡) where the Defendant served as County Magistrate (군수), and was in charge of affairs including the crackdown on illegal acts within development-restricted zones. The court below found as follows: ① From around 1983, non-party ○○○ altered the form and quality of the entirety of 6,696 square meters of paddy land at 39 Choi-ri, Seobu-myeon of the above county—which was land within a development-restricted zone under the Urban Planning Act (도시계획법) and absolute farmland under the Act on Conservation and Utilization of Farmland (농지의 보존 및 이용에 관한 법률)—by filling it with earth, and constructed thereon four steel-framed vinyl greenhouses totaling 3,557 square meters, using them as a restaurant, factory, tropical ornamental greenhouse, fish farm, etc., under the trade name "Jeju Farm," yet the Plaintiff, due to his failure to faithfully perform his duties, failed to detect this and take corrective measures; and ② On July 4, 1986, upon receiving from non-party Jawon Non-ferrous Metal Industrial Co., Ltd. an application for permission to change the use of a non-ferrous metal factory located at 400-2 Gambuk-ri, same myeon, within a development-restricted zone, the Plaintiff processed the application. Although the said company had, from around January 1984, changed its line of business without permission and had been using the factory as two plywood factories and a stone-processing factory, the staff member in charge, non-party 1, falsely reported to the Plaintiff that the stone-processing factory had already been removed. The court found that the Plaintiff, due to his negligence in supervising non-party 1 and his negligence in ascertaining the actual state of affairs within the development-restricted zone, accepted the false report of the staff member in charge as it was, and accordingly prepared a false opinion statement and application for approval as if the said stone-processing factory—which had not in fact been relocated—had been relocated, and submitted this for approval to non-party ○○○, the Deputy County Magistrate (부군수).
Upon comparison with the record, the measure of the court below in finding the disciplinary fact that the Plaintiff, in violation of his duty of good faith in performing the crackdown affairs within the development-restricted zone, failed to detect and take corrective measures against the illegal act at the above 39 Choi-ri, is justified, and it cannot be said that there is any illegality therein, such as incomplete deliberation, violation of the rules of evidence, or inadequate or contradictory reasoning, as alleged.
However, as to the point that the Plaintiff neglected his duty of supervision over his subordinate staff member and thereby failed to ascertain the true state of affairs regarding the illegal change of use by Jawon Non-ferrous Metal Industrial Co., Ltd., in order to impose on a public official responsibility for supervisory failure regarding misconduct of a subordinate, it is necessary to specifically identify and establish by evidence what specific dereliction of duty or intent on the part of the public official concerned or the subordinate occurred, and the specific facts constituting a breach of the duty of supervision (see this Court's Decisions 74Nu163 rendered on November 12, 1974; 78Nu164 rendered on August 22, 1978; and 79Nu245 rendered on November 13, 1979). The judgment below, however, merely stated in vague terms that the Plaintiff had been negligent in supervising non-party 1, without specifying and finding the concrete facts constituting the Plaintiff's breach of his duty of supervision. Therefore, the judgment below is unlawful in that it misapprehended the legal principles concerning supervisory responsibility, or failed to complete deliberation, or violated the rules of evidence, as pointed out.
However, where, among several grounds for disciplinary action, some are not established, but the other established grounds alone are sufficient to recognize the validity of the disciplinary action in question, maintaining the disciplinary action cannot be deemed unlawful (see this Court's Decision 82Nu405 rendered on April 26, 1983). As seen above, since the remaining ground for disciplinary action alone appears sufficient to justify the dismissal disposition in this case, the above illegality in the judgment below did not affect the outcome of the judgment, and therefore this argument is without merit.
2. As to Ground of Appeal No. 4.
According to the reasoning of the judgment below, with respect to the Plaintiff's argument that the dismissal disposition in this case was an unlawful disposition constituting a deviation from or abuse of discretionary power, the court below determined as follows: Even though the Plaintiff had received specific instructions or notifications from the Governor of Gyeonggi-do, the competent authority, and from the head of Gangdong-gu Office, Seoul, an adjacent administrative agency, that there were specific instances of illegality and that investigation and corrective measures should be taken, the Plaintiff merely vaguely instructed the head of Seobu-myeon, the competent township office, and others to investigate and report or take measures, and even though the content of the reports gave grounds to suspect illegal instances, the Plaintiff, as the official in actual charge, failed to conduct an on-site investigation and confirmation, and vaguely accepted the content of the reports as they were and processed the instructions from his superiors on that basis. Furthermore, since his appointment to his current position in April 1985, the Plaintiff had failed to detect through his own efforts the serious illegal instances as noted above. In light of the content and degree of such misconduct, the significance of the crackdown affairs on illegal acts in view of the purposes of designating development-restricted zones and farmland, and the fact that the Plaintiff had also received a disciplinary action of one month's salary reduction from the Defendant on November 8, 1986, the court below determined that the dismissal disposition in this case could not be deemed an unlawful disposition constituting a deviation from or abuse of discretionary power. Even setting aside the point concerning the Plaintiff's negligence in supervising his subordinate staff member as discussed above, the determination of the court below is justified in light of the above factual relationship, and it cannot be said that there is any illegality therein due to misapprehension of the legal principles concerning discretionary power in disciplinary matters. Therefore, this argument is without merit.
3. Accordingly, the opinions of the participating Justices being unanimous, it is decided to dismiss the appeal and to have the losing party bear the costs of the appeal, as stated in the Order.
Justice Lee Hoe-chang (Presiding Justice), Justice Bae Seok, Justice Kim Sang-won, Justice Kim Ju-han