Gangneung Mayor Kim Han-geun's 'Personnel Manipulation' Guilty Verdict Overturned... Supreme Court Views 'Irregular Promotion' as Discretionary Power Exercise (Comprehensive)

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court overturned and remanded the second-instance ruling that sentenced Kim Han-geun, Mayor of Gangneung, to a fine of 5 million won for allegedly promoting unqualified individuals to director positions through proxy appointments, excluding existing promotion candidates in a personnel reshuffle immediately after his inauguration in July 2018, on the grounds of acquittal.

On the 11th, the Supreme Court's Second Division (Presiding Justice Lee Dong-won) quashed the original ruling that sentenced Mayor Kim to a fine of 5 million won for violating the Local Public Officials Act and sent the case back to the Chuncheon District Court Gangneung Branch.

The court stated, "The defendant's actions fall within the reasonable personnel discretion of the appointing authority and do not constitute 'acts that unduly influence appointments' under Article 42 of the Local Public Officials Act."

Based on Articles 26 and 39, Paragraph 4 of the Local Public Officials Act, the court judged that "the appointing authority has discretion to select and decide on methods for filling vacancies and the scope of promotion appointments."

Furthermore, the court explained, "Article 38-5 of the Enforcement Decree of the Local Public Officials Act, which stipulates that 'the appointing authority shall, unless there are special reasons, follow the prior deliberation of the personnel committee or the results of promotion resolutions for the promotion appointment of affiliated public officials,' cannot be seen as excluding the appointing authority's personnel discretion. It should be understood as encouraging the appointing authority to respect the personnel committee's deliberation and resolution results as much as possible."

The court emphasized, "When imposing criminal penalties on acts related to the appointing authority's personnel decisions, the broad discretion of the appointing authority must be considered, and the penal provisions should be interpreted and applied strictly to avoid unjustly depriving the appointing authority of personnel discretion. Therefore, in determining whether an act constitutes 'undue influence on appointments' under Article 42 of the Local Public Officials Act, if the appointing authority acted within the scope of reasonable discretion, the elements of the offense should not be easily recognized."

It further concluded, "The lower court's judgment was based on the premise that the defendant was obligated to request prior deliberation from the personnel committee for three administrative positions and one facility position. However, it cannot be said that the appointing authority is obligated to request prior deliberation for all vacancies. Therefore, the defendant's request for prior deliberation only for some of the vacancies does not constitute an infringement of the personnel committee's prior deliberation authority."

Kim, who was elected Mayor of Gangneung in the June 13, 2018, nationwide local elections, was charged with promoting one person among four vacancies from promotion candidates and appointing the other three, who were not promotion candidates, as proxies before awarding them director appointment letters, thereby preventing the Gangneung Personnel Committee from properly conducting prior deliberation on promotion appointments.

According to the court, immediately after being elected mayor on June 20, 2018, Kim, as the mayor-elect, received a written report at the Gangneung Mayor Transition Committee office from A, General Affairs Director, and B, Personnel Section Chief, stating that "As of July 1, 2018, among the Grade 4 public officials at Gangneung City Hall, three including the Head of the Construction and Waterworks Headquarters will retire honorably, and five including the Director of the Welfare and Environment Bureau will take merit leave, resulting in eight vacancies. Excluding two temporary positions, six promotion opportunities arise. Except for the Health Center Director, who has no promotion candidates, and the Agricultural Technology Center Director, who is eligible for position promotion, four Grade 4 promotions are needed: three administrative and one facility. The promotion-qualified Grade 5 officials are three administrative and one facility."

On July 1, 2018, the day before the inauguration ceremony, Kim received a verbal report reiterating the written report from Director A in the mayor's office at Gangneung City Hall. Kim told A, "For the administrative positions, one vacancy will be filled by promoting C, but the other two vacancies will be filled by proxy appointments. For the facility position, one vacancy will be filled by appointing a proxy who is not on the promotion candidate list." Although A expressed difficulty in appointing proxies when promotion candidates exist, Kim insisted on proceeding with proxy appointments.

Eventually, A said, "I will review it," left the mayor's office, and relayed Kim's instructions to B. However, B showed A the personnel regulations from the Local Public Officials Personnel Manual and reported that "According to the regulations, appointing proxies excluding promotion candidates in administrative and facility positions is not compliant."

A returned to the mayor's office and conveyed B's report to Kim, but Kim reiterated his instruction to appoint proxies. A then told B, "The mayor's will is firm, so we have no choice but to proceed as instructed."

After taking office on the morning of July 2, 2018, Kim approved a personnel report prepared by B stating that "For administrative positions, some vacancies will be filled by proxy appointments, and for facility positions, proxies will be appointed in civil engineering positions without promotion candidates rather than in architectural positions with candidates." He also instructed B to send a request for prior deliberation on the personnel committee agenda under the mayor's name to the Gangneung Personnel Committee chairman. Accordingly, the Gangneung Personnel Committee held a meeting that afternoon and conducted prior deliberation, approving only C as the promotion appointee for administrative positions and D as the proxy appointee from the civil engineering proxy candidate list for facility positions.

On July 3, 2018, Kim appointed C as Administrative Director for one of the three Grade 4 administrative vacancies, and appointed E and F, who were not on the promotion candidate list, as proxy Industrial Economy Director and proxy Welfare and Environment Director, respectively, for the other two vacancies. For the one Grade 4 facility vacancy, D, not on the promotion candidate list, was appointed proxy Head of the Construction and Waterworks Headquarters. After awarding appointment letters to these three, they were assigned only the duties of the respective directors and headquarters chiefs, not their original tasks.

The first-instance court pointed out, "The defendant reported the number of Grade 4 administrative vacancies as one instead of three to the Gangneung Personnel Committee, which holds prior deliberation authority on promotion appointments, and did not submit the promotion candidate list for Grade 4 facility positions despite the existence of candidates, thereby preventing proper prior deliberation and unduly influencing promotion appointments."

In court, Kim's defense argued, "The mayor, as the appointing authority, has broad discretion over promotion appointments, including estimating the number of promotions and appointing proxies. The personnel committee only deliberates based on the mayor's estimated promotion numbers and has no authority to judge the appropriateness of those numbers."

They also claimed, "The defendant used the proxy appointment system as an active administrative measure to resolve the long-standing personnel stagnation and short tenure of directors in Gangneung City, without intent to obstruct or unduly influence promotion appointments."

However, the court rejected these claims.

The court first cited a Supreme Court ruling, stating, "No one shall intentionally obstruct or unduly influence appointments (Article 42 of the Local Public Officials Act). The purpose of this provision is not only to protect the appointing authority from interference or undue influence by others but also to safeguard the fairness of the appointment system, which forms the basis of public official personnel administration, from all parties including the appointing authority. Therefore, even the appointing authority is subject to punishment if violating this provision."

The court continued, "Although local government heads have appointment authority over affiliated public officials, personnel committees are established for each appointing authority, overseeing prior deliberation on promotion appointments. The appointing authority must follow the personnel committee's prior deliberation results unless there are special reasons. If a local government head intentionally obstructs or unduly influences the personnel committee's prior deliberation, it constitutes a violation of Article 42 of the Local Public Officials Act."

Moreover, the court noted, "Despite repeated reports from Director A and Section Chief B that appointing proxies instead of promotion candidates violates relevant regulations and personnel principles, the defendant insisted on proceeding with such appointments, demonstrating awareness and intent to unduly influence the personnel committee's prior deliberation on promotion appointments," thus finding Kim guilty.

Regarding sentencing, the first-instance court stated, "Two long-serving public officials were ultimately unable to be promoted to Grade 4 due to this offense, causing significant mental distress. Since local government heads have been elected since 1995, the importance of the personnel committee's prior deliberation authority has increased, and this offense undermined the legislative intent of the Local Public Officials Act."

Kim appealed the first-instance ruling, but the second-instance court upheld the original judgment.

The second-instance court stated, "The defendant's actions exceeded the discretionary authority of the local government head over promotion appointments, effectively nullifying the personnel committee's authority as stipulated by the Local Public Officials Act, constituting undue influence on promotion appointments. Therefore, the original judgment is reasonable, and there is no factual or legal error as claimed by the defendant," dismissing Kim's appeal.

However, the Supreme Court completely overturned the lower courts' rulings.

This content was produced with the assistance of AI translation services.