공무원법상 직위해제의 문제점 및 개선방안

Abstract

The release from position serves to ensure confidence in public office by removing officials from their duties during investigations, disciplinary proceedings, and criminal trials. However, the release from position system in Korea not only has the effect of excluding the official from their duties, but also imposes various additional disadvantages such as reduction up to 70% of salary and allowances, limitation of salary increases and promotions, exclusion of length of service for calculating leave and pension benefits, etc. The removal from the position is based on the possibility of mandatory retirement. Any additional disadvantage resulting from the release from position can be recovered if the individual is later proven innocent, but if a public official does not receive a penalty or disciplinary action leading to mandatory retirement, there is no possibility of recovery, just like in the case of mandatory retirement. in cases where a public official does not receive a penalty or disciplinary action leading to mandatory retirement, there is a problem that there is no possibility of recovery, just like in the case of mandatory retirement. In the UK, the suspension with pay is broadly recognized as a necessary measure for protecting the public interest, and the suspension without pay is considered a disciplinary sanction. In Germany, the prohibition of performing official duties is recognized for a comprehensive reason of inevitable duty-related reasons for up to three months. The tentative pause of payment is executed only in cases where it is expected that the dismissal will be imposed. In this case, to ensure the livelihood of civil servants, the rate of pause of payment is decided enough to make a living within 50%. The biggest differences between the UK/Germany and Korea is whether the release from position and additional disadvantages are separated. In Korea, due to the combination of the release from position and additional disadvantages, it is difficult to expand the scope of the release from position to a necessary extent to ensure confidence in public office. On the other hand, even though the additional disadvantages are of a sanctionary nature, the administrative procedures are not sufficiently guaranteed. Furthermore, even if the administrative agency makes a wrong judgment about probabilities of mandatory retirement and in reality only a much lighter punishment is issued, the burden of such misjudgment by the administrative agency shall be borne entirely by the public servant. To address these issues, a separation of exclusion from duty and additional disadvantages is necessary. On the one hand, we need to recognize release from position without additional disadvantages, so that it can be carried out within a sufficient scope to ensure confidence in public office. On the other hand, to protect the rights of public officials who are the recipients of release from position, the following improvements should be made. Firstly, in cases where additional disadvantages are imposed, the administrative agency must strictly review the probabilities of mandatory retirement while reinforcing administrative procedures. Secondly, the administrative agency should re-evaluate the retention of the release from position and grant the right of civil servants to apply for withdrawal or change. Thirdly, in the appeal review procedure, a procedure is introduced to reflect the change in circumstances and make a judgment to withdraw or change the release from position. Fourthly, unless it is finally concluded that the public servant has done something wrong that constitutes a reason for mandatory retirement, additional disadvantages should be retroactively restored.