징계의결요구의 법적 효력

Abstract

As the State Public Officials Act, the Local Public Officials Act and their subordinate statutes do not have substantial rules about request for a disciplinary decision, there are no effective guidelines which are to be applied to request for disciplinary decisions against public officials in the legal system of the Republic of Korea. In particular, it is not clear whether revocation of the request for a disciplinary decision is to be allowed when the administrative authority wants to withdraw its request for a disciplinary decision according to change of the situation. In addition, when the authority wants to change its initial decision of leniency on a suspicious offender such as an admonition or warning and require a disciplinary decision of the disciplinary committee, it is not sure if the following request for a disciplinary decision is valid in spite of Double Jeopardy Principle. In my opinion, we need new legislation dealing with this issue for resolving the consequent problems from vagueness of relevant Acts and Statutes. For the mean time, we need well-balanced interpretative theories. For this reason, I propose new interpretative guidelines as follows. Firstly, the authority of personnel affairs is able to withdraw the request for a disciplinary decision. But, it does not mean that the disciplinary procedure must terminate by the withdrawal. Secondly, the disciplinary committee must decide if revocation of request for a disciplinary decision should be allowed or not. Thirdly, the authority of personnel affairs cannot require a disciplinary decision after issuing an admonition or a warning. Fourthly, the authority of personnel affairs is able to require a disciplinary decision after withdrawing the admonition or a warning. This request does not violate Double Jeopardy Principle.