불문경고의 법적성격에 대한 고찰

Abstract

An “unpublished warning”, which is not officially specified in disciplinary regulations applicable to government officials but regarded as one of the most widely used disciplinary actions, is usually given to a person who was submitted to disciplinary measures such as a ‘pay cut’ or ‘reprimand’ but who reduced the severity of disciplinary action from the governing disciplinary committee or petition review committee by resorting to her or his public recognitions such as awards. Discussions of unpublished warning are largely focused on the findings that an unpublished warning is not stipulated in applicable regulations but set forth in administrative regulations, which govern internal administrative relations. Another issue is whether an unpublished warning issued in accordance with administrative regulations can be considered an official disciplinary action that can be appealed pursuant to Administrative Litigation Act. An unpublished warning issued in accordance with administrative regulations is not considered a disciplinary action in accordance with disciplinary regulations, yet it clearly gives damage and burden to the disciplined person so that it is somewhat reasonable that the Supreme Court has ruled that petition is available for an unpublished warning by expanding the scope of administrative remedies. However, it still has some limitations because an unpublished warning is based on administrative regulations. Since an unpublished warning is considered a de facto disciplinary action which is practically equivalent to official disciplinary action, it can be abused to allow the punished person avoid disciplinary measures stipulated in applicable regulations and to bypass official penalty alleviation procedures. For such reasons, the governing disciplinary committee or petition review committee is required to make further efforts to ensure transparency and fairness in disciplinary programs for government officials by strictly applying relevant regulations in considering alleviation of penalty.