2022 징계법정주의 관점에서 바라본 공무원의 임용 전 비위행위와 징계

Abstract

Regarding the disciplinary action of public officials prior to appointment, the majority of the academic community today views that in cases where the misconduct before the appointment is so serious that serving as a public servant is not allowed, the act of appointment itself can be either canceled or withdrawn but cannot be the cause for disciplinary action, in principle. In some cases, however, such as when a particular behavior before the appointment has resulted in the subsequent injury to the dignity of public officials, disciplinary action can be taken on the grounds that it violates the duties of public officials after the appointment (or for failing to maintain the dignity as a public official). However, these opinions of the majority appear to follow the Supreme Court’s judgment uncritically. As a result, it led to harmful consequences by excessively linking the misconduct before the appointment with the act of appointment in the actual disciplinary process. However, discipline, unlike punishment, is based on public official relations. Therefore, to use an act that does not occur in public official relations as a reason for discipline is contrary to the basic nature of the discipline. Accordingly, the logic of such disciplinary action on exceptional grounds referred to in Supreme Court precedent would be incorrect. In the discipline of public officials and teachers, etc., legal principles should be applied more rigorously in addition to the principle of statutory discipline which states the requirements, procedures, level of disciplinary measures, standards, and procedures for dissatisfaction, etc., must be explicitly stipulated by law. However, the Supreme Court precedent or the majority opinions from academia are regarded as the result of analogical or extended interpretation in disciplinary action, and such results are a violation of the principle of statutory discipline, which cannot be easily agreed upon. However, when such rigorous interpretation applies, problems could arise such as how to resolve misconduct related to the appointment. As its interpretation would be difficult, a separate statute should be established so that if any misconduct is found before or after the appointment, the appointment can be canceled, or other measures can be taken. Furthermore, clear provisions on the statute of the prescription are necessary to ensure legal stability. This requires a systematic examination of the current statute and provisions on punishment.