[2] The case holding that a dismissal disposition against a public official in charge of auction at the court who has received a bribe of KRW 700,000 in total from the office clerk and aided his act of embezzlement of his bid bond cannot be deemed as a deviation or abuse of discretion

[2] The case holding that a dismissal disposition against a public official in charge of auction in the court who has received a bribe of KRW 700,000 in total from the office clerk and aided his act of embezzlement of his bid bond cannot be deemed as a deviation or abuse of discretion

1. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

As of July 11, 1994, the Plaintiff assisted Nonparty 1, a joint office of the same court, to embezzled bid bond of KRW 487,948,090 in total, and received KRW 700,00 from Nonparty 1 as a bribe of KRW 700,00,00 from Nonparty 1, and became subject to dismissal by the court appeals review committee.

From January 20, 1987, before the plaintiff worked as a auction place, from January 20, 1987, until December 23, 1994, the date of distribution of the auction case, the non-party 1 worked as a joint office clerk of the same court and used it in a different place without paying the bid bond for a part of the auction case after bidding, but at the time of designation of the date of distribution of the auction case, the non-party 1 embezzled the bid bond of KRW 30,373,447,274 in total by making the payment of the bid bond for the auction case designated for the date of distribution as the bid bond embezzled from other auction cases, and issuing it to the auction supervisor, so that the distribution procedure can be carried out.

Around April 194, Nonparty 2, who had been working for the above application and the auction 8th place, was aware that Nonparty 1 embezzled the bid bond as above. At the same time, Nonparty 2 and Nonparty 3 et al., under the direction of Nonparty 2 and auction 3 et al. at the court at the time of the original trial, the court determined that Nonparty 1 embezzled the bid bond for the auction case where Nonparty 1 newly bided and paid it as the bid bond for the auction case where the date of distribution was designated. The Plaintiff, from July 11, 1994 to 3rd place in the same auction procedure, received 200,000 won from Nonparty 1 in return for his auction business, and then, Nonparty 1 et al. was aware of the fact that Nonparty 1’s embezzlement and the auction bond were received from Nonparty 1 at the end of July 1994 and paid it to Nonparty 1 as the auction bond at the end of 197 auction at the end of 197.

Then, on October 11, 1995, the Plaintiff was sentenced by the Seoul High Court to suspend qualifications for one year and a fine of 1,000,000 won for occupational embezzlement assistance and acceptance of bribe on October 11, 1995, and the above judgment became final and conclusive. The other former and present auction managers prosecuted together with the Plaintiff were convicted and subject to disciplinary action as shown in the attached Table 2 of the lower judgment.

The court below, based on the above facts, found the plaintiff's embezzlement of the non-party 1 around July 1994. On the other hand, the plaintiff knew of the embezzlement of the non-party 1, and decided to compensate for the non-party 1, and had the non-party 1 take measures to avoid the situation of impossibility of distribution in the auction case where the date of distribution was designated, the court below decided to allow the non-party 1 to embezzled the bid deposit for the new auction case and to pay the bid deposit already embezzled. After May 1994, the non-party 1 did not appropriate the bid deposit for personal purposes; the non-party 1 worked in the same court as at the time of May 1994, but the non-party 4,5,6,7 as at May 1, 1994, based on the plaintiff's opinion that the non-party 1 was subject to the disciplinary action's removal of the plaintiff's position of the disciplinary action's position of abuse of duty by taking into account the characteristics of the disciplinary action and the dismissal of the non-party 1.

2. However, in order to be considered as an illegal disposition beyond the scope of discretion due to excessive degree of disciplinary action, it should be a case where it is objectively and objectively deemed unreasonable in light of the content and nature of the relevant misconduct, and the administrative purpose to be carried out by the disciplinary action, and all the circumstances accompanying it (see, e.g., Supreme Court Decisions 95Nu938, Jan. 26, 1996; 96Nu17479, Apr. 25, 1997).

However, according to the facts acknowledged by the court below, the plaintiff was in charge of the auction business of the court that requires high level credibility and morality, while receiving 200,000 won as a bribe in connection with it, and then embezzlement of large bid bonds is possible, and in return for it, received a bribe of 500,000 won in cooperation with the non-party 1's unfair business process, which is the business cause of the office. This act constitutes not only a disciplinary cause but also a criminal act, and thus criminal punishment is imposed. Thus, it cannot be said that the court official, which requires high level of integrity, violates the duty of integrity and good faith as a public official of the court. Therefore, considering the motive and circumstance leading to the act of aiding and abetting the above embezzlement, and the contents and fairness of the disciplinary action taken by other auction places, the part of the court below's dismissal decision that affected the conclusion of the judgment below's dismissal of the defendant's unlawful discretion is not justified in light of the legal principles as to disciplinary action which affected the removal of the defendant's discretionary authority.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)