Must an agency give prior notice and a chance to respond before a disposition that restricts rights, and when do civil service personnel dispositions fall outside the Administrative Procedures Act? Decision 2011Du30687 on the exclusion for 'dispositions under public service personnel relations statutes'

Question

Article 21(1) and (4) and Article 22 of the former Administrative Procedures Act require an agency, before imposing an obligation or restricting rights, to notify the facts underlying the intended disposition, its content and legal basis, and the right to submit opinions and how an omission to submit opinions is handled, and to give an opportunity to submit opinions even where no other statute requires a hearing or public meeting, while permitting omission in specified cases, among them where 'there is a justifiable reason to recognise that the hearing of opinions is conspicuously difficult or manifestly unnecessary by the nature of the disposition'. Article 3(2)(9) of the same Act, with Article 2(3) of its Enforcement Decree, excludes certain matters, including 'disciplinary actions and other dispositions under public service personnel relations statutes'. The question is when the absence of prior notice and of an opportunity to submit opinions makes a disposition unlawful, and how far the exclusion reaches.

Decision 2011Du30687 raises that question for the ex officio dismissal of the plaintiff, appointed Director of the Presidential Records Administration, a special service public official with a five-year term under the statute on the management of Presidential Records, by the Minister of Public Administration and Security. The court below held the dismissal unlawful for want of prior notice and of an opportunity to submit opinions, with no exception applying; the Minister appealed, and the Supreme Court was asked whether the exclusion removed such a dismissal from the Act altogether.

Material to check

The statutes are four provisions of administrative procedure law, each cited in the form the decision uses: Article 21, Article 22 and Article 3 of the former Administrative Procedures Act, before its amendment by Act No. 11498 of 22 October 2012, and Article 2 of the former Enforcement Decree of that Act, before its amendment by Presidential Decree No. 23383 of 21 December 2011. Their current text is not given in the texts read for this brief. As the decision quotes and reads them, Articles 21(1), 21(4) and 22 set out the notice and opinion procedure and the cases in which it may be omitted, and Article 3(2)(9) with Enforcement Decree Article 2(3) the matters to which the Act does not apply. The decision also refers to the former Civil Service Discipline Rule, before its amendment by Presidential Decree No. 22199 of 15 June 2010, Article 22(1) of which, as the court below quoted it, provides that where a special service public official falls within a disciplinary ground under Article 78(1) of the State Public Officials Act, the official may be dismissed ex officio or disciplined under that Rule.

The decisions are the decision itself and the three it cites. Decision 2006Du20631 (21 September 2007) held that a restrictive disposition made without prior notice or an opportunity to submit opinions is unlawful unless an exception applies, that the exclusion for public service personnel dispositions covers only dispositions whose nature makes procedure difficult or unnecessary or for which equivalent procedure is prescribed, and found a military promotion cancellation unlawful on those principles. Decision 99Du5870 (14 November 2000) stated the same rule on prior notice in qualified terms and held that advance warning through administrative guidance and a party's promise to close a well voluntarily were not an exception. Decision 2004Du1254 (28 May 2004) stated the same rule and held that the risk of a party pressing on with construction in the hope of large compensation, if given notice and a chance to respond to a stop-work order under the Building Act, was not an exception.

Possible readings

Read with Decisions 99Du5870 and 2004Du1254, Articles 21(1), 21(4) and 22 set the notice and opinion requirements for a disposition that imposes an obligation or restricts rights, and omission is permitted only in the exceptional cases the provisions name, including a justifiable reason to recognise that hearing opinions is conspicuously difficult or manifestly unnecessary by the nature of the disposition. Absent such a case, the disposition is unlawful and cannot escape cancellation. The decision states this rule and the court below applied it.

On the exclusion in Article 3(2)(9), measured against the legislative purpose the decision describes as securing the fairness, transparency and reliability of administration and protecting the rights of the people, the exclusion does not apply to all matters of dispositions under public service personnel relations statutes. It applies only to dispositions whose nature makes administrative procedures difficult or unnecessary and to dispositions for which a procedure equivalent to administrative procedures is prescribed. Decision 2006Du20631 stated the same limit on the same provisions, and the decision holds that the reasoning applies equally to the ex officio dismissal of a special service public official, itself a disposition under public service personnel relations statutes.

A third reading follows from the way the decisions treat alternative chances to be heard. Under Decision 99Du5870, advance warning in the form of administrative guidance and the party's own promise did not supply the statutory procedure, and under Decision 2004Du1254 the risk that the party would press on with construction in the hope of large compensation did not either. In the decision, the plaintiff's chance to explain the alleged misconduct while under investigation for the alleged leak of presidential records, and the intense public interest and fierce legal argument in the press over whether the disclosure was lawful, did not make the disposition one in which notice or the submission of opinions could be omitted.

What the decisions held

Decision 2011Du30687 (16 January 2013) dismissed the appeal and left the costs of the appeal to the defendant. It held, first, that an agency that makes a restrictive administrative disposition without the statutory prior notice or an opportunity to submit opinions makes a disposition that is unlawful and cannot escape cancellation, unless the case is one of the exceptions in which notice and the hearing of opinions may be omitted; and, second, that the exclusion for dispositions under public service personnel relations statutes is confined to dispositions whose nature makes administrative procedures difficult or unnecessary, or for which a procedure equivalent to administrative procedures is prescribed, and that this applies equally to the ex officio dismissal of a special service public official.

The court below, Seoul High Court in its judgment of 2 November 2011 (2010Nu35021), reasoned that the disposition dismissed the plaintiff from a post to which he had been appointed as a five-year special service public official under the statute on the management of Presidential Records, and so imposed an obligation on him and restricted his rights. It held that Article 22(1) of the former Civil Service Discipline Rule allowed ex officio dismissal or discipline where a disciplinary ground existed, that unlike a disciplinary disposition an ex officio dismissal was not subject to the Rule's disciplinary procedure, so no provision required a procedure equivalent to administrative procedures, and that the disposition did not fall within the class whose nature makes such procedures difficult or unnecessary. The investigation and press controversy did not supply an exception, and the disposition, made without prior notice and without an opportunity to submit opinions, violated Article 21(1) and Article 22(3) and was unlawful for that procedural defect.

On the record and the lawfully admitted evidence the Supreme Court found no misunderstanding of the law on the scope of the exclusion or on the grounds of exception and no omission of reasoning, as the appellant argued. It therefore affirmed, applying the rules above, that this ex officio dismissal of a special service public official fell outside the exclusion in Article 3(2)(9) and outside the exceptions in which prior notice and the hearing of opinions may be omitted. It decided only the legal questions raised on the appeal and stated no rule on which other public service personnel dispositions fall inside the exclusion.

Points left open

The decision fixes the limit of the exclusion in general terms and decides where the ex officio dismissal of a special service public official before it stands, but it does not decide which other dispositions under public service personnel relations statutes fall on which side of that limit. It notes through the court below that a disciplinary disposition is accompanied by a procedure under the former Civil Service Discipline Rule while an ex officio dismissal is not, yet it does not say which other personnel dispositions are ones whose nature makes administrative procedures difficult or unnecessary, or which statutory procedures count as equivalent to administrative procedures.

It also leaves open matters it did not face. It states that a disposition made without the required prior notice or opportunity to submit opinions cannot escape cancellation outside the exceptions, but the decision does not discuss whether such a defect could be treated as minor, whether a later opportunity to be heard could cure it, or how the provisions as amended on 22 October 2012 and 21 December 2011 would be applied to a disposition of this kind.

When to reconsider

We revisit this brief if the Administrative Procedures Act or its Enforcement Decree is amended again on the exclusion in Article 3(2)(9), if the provisions cited are renumbered, or if a later decision of the Supreme Court identifies which public service personnel dispositions fall within the exception or treats an equivalent procedure as sufficient for the ex officio dismissal of a special service public official.

Statutes referred to

• 구 행정절차법 제21조, 제22조, 제3조
• 구 행정절차법 시행령 제2조

Decisions referred to

• 대법원 2013. 1. 16. 선고 2011두30687 판결 · Decision ledger
• 대법원 2007. 9. 21. 선고 2006두20631 판결
• 대법원 2000. 11. 14. 선고 99두5870 판결 · Decision ledger
• 대법원 2004. 5. 28. 선고 2004두1254 판결

Verification status

The texts read for this brief were read at the National Law Information Center (law.go.kr) on 24 October 2026. The decision was read in its published holdings, summary and reasons, the three cited decisions in their published holdings and summaries, and the four cited articles as former versions whose current text is not given.