[징계부가금처분취소] 확정[각공2013하,900]
In a case where Gap University Head was convicted of acquiring personnel expenses, etc. paid under the name of the researcher by acquiring labor expenses, etc. from Eul who was a general manager of service projects requested by the government department, etc., while holding office as the head of the headquarters attached to Gap University, the case holding that the above disciplinary ground cannot be deemed to constitute "Embezzlement and misappropriation of public funds" as provided in Article 78-2 of the State Public Officials Act, and thus the above disposition is unlawful.
In a case where the president of Gap University was convicted of acquiring personnel expenses, etc. paid under the name of the researcher by acquiring personnel expenses, etc. from Eul who was a general manager of the service business requested by the government department, etc., while holding office as the head of Gap University’s affiliated head, the case holding that although it is reasonable to regard the nature of the above research expenses as public funds, it is reasonable to interpret that the meaning of “misappropriation” in “Embezzlement and misappropriation of public funds” means all cases of using public funds for purposes other than its original purpose, regardless of the means of theft, taking advantage of embezzlement, taking advantage of the public funds other than embezzlement, taking advantage of the public funds, taking advantage of the means of embezzlement, taking advantage of the public funds, taking advantage of the prior meaning of “misappropriation,” and thus, it is unlawful to impose disciplinary additional charges on Eul on the ground that the aforementioned grounds for disciplinary action cannot be deemed as embezzlement and misappropriation of public funds.
Article 78-2 of the State Public Officials Act, Article 25 of the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act
Plaintiff (Attorney Kim Jin-hoon, Counsel for the plaintiff-appellant)
○○ University President (Attorney Song-ho, Counsel for the defendant-appellant)
June 14, 2013
1. The Defendant’s disposition of disciplinary surcharge imposed on the Plaintiff on September 25, 2012 shall be revoked.
2. The costs of the lawsuit are assessed against the defendant.
The same shall apply to the order.
1. Details of the disposition;
A. The Plaintiff, as the principal of the ○ University’s culture and arts university and the head of the △△△△△△ Center, was working as the head of the “knowledge Information and Design Innovation Center” affiliated with the ○ University from March 2006 to February 2010, and planned a number of projects requested by the ○○ University Industry-Academic Cooperation Foundation (hereinafter “industry-Academic Cooperation Foundation”) from the government department, local governments, etc. to provide research services related to various industrial technology foundation and public design (hereinafter “instant service projects”), and comprehensively supervised all the instant service projects by claiming and executing the project funds from the implementation thereof to the Industry-Academic Cooperation Foundation.
B. The Plaintiff acquired the amount of KRW 595,010,99 (excluding the amount of KRW 319,520,480, which was transferred 914,531,479) from the Industry-Academic Cooperation Foundation from 206 to 3,08,00,000 won by submitting a false tax invoice to the Industry-Academic Cooperation Foundation for the claim for the payment of human resources for researchers who did not participate in the research by pretending that they participated in the research and development project. The Plaintiff was convicted of the difference of the amount of KRW 319,520,480 (excluding the amount of KRW 319,520,480, which was actually paid out of the personnel expenses out of the amount of KRW 914,531,479, which was actually paid to the Industry-Academic Cooperation Foundation.) from 30,000 to 3,000,000 won by means of 20,7197.
C. On September 25, 2012, the Defendant rendered a disposition to dismiss the Plaintiff and impose a surcharge of KRW 66,779,319 on the ground that the Plaintiff committed the foregoing offense (hereinafter “instant disposition”).
[Grounds for Recognition] Unsatisfy, each entry in Gap evidence 1 through 5 (including the relevant branch numbers), the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
(1) Violation of the principle of statutory reservation
An industry-academic cooperation foundation, the victim of the above criminal case, is only a legal entity and the victim is not a public fund because the industry-academic cooperation foundation acquires money in return for the performance of services by the State or a local government. In addition, the plaintiff is not in a position to preserve or manage the national budget in relation to his/her duties, and therefore the plaintiff cannot be the subject of embezzlement, and the above money is not embezzled or useful, as declared guilty in criminal cases.
Therefore, the above criminal case does not constitute the case of embezzlement and misappropriation of public funds as stipulated in Article 78-2(1) of the State Public Officials Act, which is the law based on the instant disposition, and thus, the instant disposition based on the premise that the Plaintiff embezzled public funds is an unlawful disposition issued without any legal basis or issued by a wrongful interpretation of the law.
(2) Violation of the equality principle
If the previous other cases committed a crime against personnel expenses or material expenses that are not indirect expenses, it is against the principle of equality that the Plaintiff did not impose disciplinary additional charges, but imposed disciplinary charges on the Plaintiff.
(3) Other
Considering various circumstances such as the fact that the Plaintiff was dismissed as the above criminal case, was disqualified for a pension payment, was detained for six months, and was sentenced to a five-year suspended sentence of imprisonment for three years, the Plaintiff deposited KRW 200 million against the industry-academic cooperation foundation during the above criminal case; the Plaintiff’s researchers, along with the Plaintiff, were discharged by two university professors with the research experience at the time, two university professors were employed at the public institution; the Plaintiff was awarded a prize to the Minister of Knowledge Economy; and the amount of fraud was used for the design center, the Defendant would be excessively harsh to impose a surcharge on the Plaintiff.
B. Relevant statutes
[Attachment] The entry is as follows.
C. Determination
First of all, we examine whether the grounds for disciplinary action against the plaintiff constitute embezzlement or misappropriation of public funds.
(1) Whether the “public money” constitutes “public money”
Comprehensively taking account of the overall purport of the arguments in Eul evidence Nos. 1, 2, 9, and 10, an industry-academic cooperation foundation is a juristic person established on January 10, 2004 pursuant to Article 25 of the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act, which is located within the ○ University, receives contributions, subsidies, etc. from the State, local governments, etc., and aims to contribute to the development of universities, local communities, and the State by performing the duties of industry-academic cooperation and research cooperation of the ○ University. According to the above facts, an industry-academic cooperation foundation is a subordinate institution of the ○ University and is a juristic person under public law. Furthermore, even if an industry-academic cooperation foundation receives prior payment from a government agency, etc. upon receiving a request for research from the ○ University, it is reasonable to view the nature of the funds as public funds even if it takes the form of a contract under private law, such as personnel expenses and the cost of purchasing goods.
(2) Whether it constitutes “Embezzlement and misappropriation”
Article 78-2 of the State Public Officials Act provides that "where a resolution of disciplinary action is requested by a public official, the grounds for disciplinary action shall be the receipt of money, valuables, and entertainment, or the embezzlement and misappropriation of public funds, a resolution of imposing disciplinary additional charges within five times the amount of money, valuables, and entertainment received in addition to the relevant disciplinary action, and the amount of embezzlement and misappropriation of public funds, shall be requested to the Disciplinary Committee." The grounds for imposing disciplinary charges are limited to "the receipt of money
The imposition of disciplinary surcharge, such as the instant disposition, is a so-called "influence administrative disposition," which deprives or imposes sanctions on the rights and interests of the people, and requires legal basis in light of the constitutional request of protecting the property rights of the people and the principle of rule of law administration. In addition, a strict interpretation is required in the interpretation of the relevant provision, and it is not permissible in principle to interpret analogical interpretation or expand interpretation without permission in the direction of expanding the scope of the infringement (see Supreme Court Decision 2003Du9145, Apr. 27, 2004, etc.).
The prior meaning of “use” in “Embezzlement and misappropriation of public funds” as the grounds for the imposition of disciplinary surcharge under the above provision refers to a case where a public official returns to what is written in south or in any other place, or returns to one another for the expenses of the items and Section, among the classifications under the expenditure budget, from among the classifications under paragraphs (i), (ii), (iii), (iv), and (i) and (i). Where a public official commits a crime in relation to public funds, it cannot be denied that there is a need to recover the amount of damage. However, in light of the above legal principles, it is reasonable to interpret the meaning of the above utilization to the effect that the public official uses all cases other than the original purpose, regardless of the means of theft, taking advantage of excluding embezzlement, taking advantage of the fact that the crime in relation to public funds is being committed concurrently and the form of embezzlement and misappropriation among the crimes related to public funds, and in light of the above legal principles, it is reasonable to interpret the meaning of the above utilization to the effect that the public funds are used for other than the original purpose.
In the case of this case, as seen earlier, the plaintiff was subject to disciplinary action by deceiving an industry-academic cooperation foundation and deceiving personnel expenses, etc., and the above disciplinary cause cannot be deemed to constitute "Embezzlement and misappropriation of public funds" as referred to in the above provision. Thus, the disposition of this case based on the premise that the plaintiff embezzled and misappropriated public funds (as long as the disposition of this case is deemed unlawful on the same ground as above, the plaintiff's remaining arguments are not judged
3. Conclusion
If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.
[Attachment] Relevant Statutes: omitted
Judges Jeong Sung-sung (Presiding Judge)