Thoughts on Guaranteeing the Right to Defense of the Person under Disciplinary Action

Abstract

There was a conflict between the judgment of the lower court and the Supreme Court regarding the adequacy of the right of defense granted to public officials in disciplinary proceedings. In other words, the Supreme Court made a judgment 2022du33323 on July 14, 2022, which is against the original trial in the lower court (2020nu52759, sentenced by Seoul High Court, on January 13). the Supreme Court judged that there is a reason not to disclose the victim's personal information and that The disciplinary agency fully guaranteed the right to defend. Also, the Supreme Court judged that the plaintiff knew who the anonymous victims were and there was no problem with the plaintiff's exercise of defense rights. However, the Supreme Court’s judgement, 2022du33323 has the following problems. First of all, it was used as a basis for judging that there was no problem in guaranteeing the plaintiff's right to defense during the disciplinary process due to the fact that there was no objection that the victim was not specified during the disciplinary process. Secondly, It was wrong to dismiss the plaintiff’s claim, citing the situation in which the plaintiff was already aware of the victim while allowing the anonymous treatment of the witness due to the victim's secondary damage. Lastly, It is unfair to cause the plaintiff to fundamentally lose the opportunity to deny his or her disciplinary charges. For this reason, it is thought that a disciplinary agency, the defendant violated the plaintiff's right to defend, and that the Supreme Court's judgment ignored the principle of due process in this case. Paradoxically, 2022du33323 demonstrated the need for institutional supplementation in the following areas of the disciplinary process. Among them, this paper presents three supplementary points. ① First of all, the administrative agency sufficiently informs the person of the right to participate in an attorney until the time of disciplinary action, so that the person subject to disciplinary action is given an opportunity to utilize it. ② Next, The Appeal Review Committee shall facilitate the submission of data by both parties apart from keeping the victim confidential. ③ Lastly, in disciplinary action, the victim's personal information, reasons for disciplinary action, and the contents of disciplinary action must be disclosed to the parties, and the Defendant Administrative Agency must faithfully prove the contents of the disciplinary action. In the end, such institutional improvements are necessary to ensure the principle of due process. by improvements, it is expected that the person subject to disciplinary action will exercise the right to defend more effectively in the disciplinary process and that an appropriate level of relief will be achieved.