해임처분취소
The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.
The grounds of appeal are examined.
1. citing the reasoning of the first instance judgment, the lower court determined that the instant dismissal disposition against the Plaintiff was unlawful on the ground that the Plaintiff abused the right of disciplinary discretion, on the ground that it is difficult to view that the Plaintiff had sexual intercourse with C by taking advantage of his superior’s position or power, and that there were grounds for mitigation, such as the Plaintiff’s failure to punish his spouse, other than the aggravated grounds for the disciplinary action, etc.
2. However, such determination by the lower court on the determination of disciplinary action is difficult to accept for the following reasons.
When a disciplinary measure is taken against a person subject to disciplinary action, it is at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure is unlawful only when it is deemed that the person having authority to take the disciplinary measure has abused the person having authority to take the disciplinary measure since the disciplinary measure as the exercise of authority has considerably lost validity under the social norms. In order for the disciplinary measure to have remarkably lost validity under the social norms, the disciplinary measure should be determined by considering various factors, such as the content and nature of the wrongful act causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for the determination of disciplinary measure, etc., and where it can be objectively and objectively deemed that the contents of the disciplinary measure
(see, e.g., Supreme Court Decisions 95Nu18727, Apr. 26, 1996; 201Du29540, Feb. 27, 2014). (B)
According to the reasoning of the first instance judgment cited by the lower court and the evidence adopted by the lower court, the following facts are revealed.
1) On March 1, 1991, the Plaintiff was born in 1967, and was in the Army so-called, the Plaintiff served as the head of the Army BJ from May 23, 2014 to February 5, 2015. 2) The Plaintiff has a legal spouse.