Objection to Disciplinary Action

The duties of public officials under the State Public Officials Act are as follows.

Eight duties

① duty to take an oath, ② duty of good faith, ③ duty of obedience, ④ duty of kindness and fairness, ⑤ duty of religious neutrality, ⑥ duty to maintain confidentiality, ⑦ duty of integrity, ⑧ duty to maintain dignity

Four prohibitions

① prohibition of leaving one's post, ② prohibition of for-profit business and concurrent positions, ③ prohibition of political campaigning, ④ prohibition of collective action

As long as such grounds for discipline are recognized, a disciplinary action may be imposed even while a criminal case is under investigation and even if guilt has not been established.

In particular, a disciplinary action may be imposed in a criminal case even if an acquittal has been rendered.

Disciplinary action against a public official falls into six types: removal, dismissal, demotion, suspension, salary reduction, and reprimand.

Removal, dismissal, demotion, or suspension are referred to as heavy disciplinary action, and salary reduction or reprimand as light disciplinary action.

The disciplinary level known as a "warning without record" corresponds to a reprimand, but it is mitigated where there is a record qualifying for mitigation, or where the misconduct of the person under suspicion amounts to negligence occurring in the course of handling duties.

Although it is not a disciplinary action under the law, it is entered on the personnel record card for one year, so it carries a disadvantage that is in effect equivalent to disciplinary action.

Where heavy disciplinary action serious enough to warrant an objection to the disciplinary action is imposed, you may have dissatisfaction with such a decision.

When deliberating on a disciplinary or similar case, the disciplinary committee takes the following matters and circumstances into account.

• The rank of the accused at the time of the alleged conduct
• The content of the disciplinary request
• The effect of the misconduct within and outside public service
• Usual conduct
• Meritorious service
• The degree of remorse

Even where a public official voluntarily wishes to resign, the appointing authority and others must, where there are grounds for discipline such as removal, dismissal, or demotion, confirm the matter with investigative agencies such as the Board of Audit and Inspection and the prosecution.

Where the confirmation reveals that there are grounds for discipline, or that an indictment in a criminal case or an investigation is in progress, they must, where the case warrants removal up to suspension, immediately request a disciplinary resolution, and must not permit resignation.

A resolution of the disciplinary committee takes external effect as a disciplinary action when the disciplinary action is carried out.

After executing the disciplinary resolution, the authority with power over the disciplinary action must, without delay, deliver a statement of reasons together with a notice for payment of any disciplinary surcharge.

If the original disciplinary action is revoked or modified, it is not executed again but is modified or revoked retroactively to the date of the original disposition.

Where a person under a disciplinary action receives a further disciplinary resolution during the period of the disciplinary action, the execution is as follows.

1. Suspension from office or reduction of pay imposed during the execution of a suspension from office : the subsequent disciplinary action is executed from the day following the completion of the prior suspension from office
2. Suspension from office imposed during the execution of a reduction of pay : the subsequent suspension from office is executed from the day following the completion of the prior reduction of pay

A person subject to a disposition who wishes to contest a disciplinary action or other disposition may request a review by the Appeals Review Commission within 30 days from the date of receiving the statement of grounds for the disciplinary action or other disposition.

The appeal review system is a type of administrative appeal system and refers to a remedy against an unlawful or unfair unfavorable disposition.

The Appeals Review Commission decides cases by the attendance of at least two-thirds of the enrolled members and the agreement of a majority of the members present, and the types of decision are as follows.

• Revocation
• Modification
• Confirmation of invalidity
• Dismissal
• Rejection
• Decision granting the request

Points to note in an appeal review

In the case of removal, dismissal, or discharge, a successor may not be appointed within 40 days.

In addition, a person must not receive any unfavorable disposition or treatment on the ground that the person filed a request for review with the Appeals Review Commission.

An administrative litigation concerning a disciplinary disposition, an unfavorable disposition, or an omission may not be filed without going through review and decision by the Appeals Review Committee.

In the case of an objection, an administrative litigation may be filed within 90 days from the date the decision is received.

In the litigation, the public official may assert the non-existence of grounds for disciplinary action, a procedural defect, or a deviation from or abuse of discretion in the disciplinary level, and as evidence may use audit reports, the disciplinary decision, statements of colleagues, emails, and recordings.

Where, however, a decision or judgment of invalidity or revocation of the disciplinary disposition is rendered in the appeal or the administrative litigation, the person with authority over the disposition may request a renewed disciplinary resolution.

If, in order to contest the disciplinary action, an administrative litigation is conducted as an action for invalidity or revocation of the disposition and a judgment of invalidity or revocation is obtained, a disciplinary resolution must be requested again.

A person under suspicion who is preparing to contest disciplinary action should secure as much exculpatory evidence on the facts as possible, even before the stages of review and the appeals review.

In particular, because an attorney may be designated and retained as a representative before the Appeals Review Committee, the person may, if necessary, consult promptly with an attorney to obtain advice on written statements and opinions and fully exercise the right of defense.

The person should thoroughly secure evidence that can prove the facts, such as official documents, emails, recordings, and CCTV footage, and in particular, if the contents of the investigation report and the disciplinary decision are contradictory or exaggerated, evidence to prove this may be needed.

In addition, if the likelihood of the appeals review being granted is judged to be low, the person should begin preparing for litigation as soon as the appeals review result is issued, so as not to miss the filing period.

A public official's challenge to disciplinary action is not resolved solely by whether the grounds for discipline are true.

Legal issues such as the lawfulness of the disciplinary procedure, compliance with the principle of proportionality, and abuse of discretionary power operate in combination.

In particular, because there is a preliminary appeals-review procedure and a strict filing period, it may be advisable to seek out a firm capable of professional legal review and prompt response, such as one with attorneys specializing in labor law, attorneys specializing in administrative law, and labor consultants.