[2] Where the challenge is not permitted as it constitutes an abuse of the right to request a challenge, and in such a case, whether it is prohibited that a member subject to the challenge is involved in the decision of challenge (negative) / Standard for determining whether the challenge is an obvious case for the purpose of delaying disciplinary proceedings

[2] Where a person subject to disciplinary action is unable to form the disciplinary committee by simultaneously applying for a challenge against all or most of the disciplinary members, or where the decision of the disciplinary committee itself is impossible, such a request is unlawful as it constitutes abuse of the right to request a challenge. Therefore, such request is not permissible. In such a case, whether a request for challenge is clearly made for the purpose of delaying the disciplinary procedure shall not be prohibited from participating in the decision on the challenge. Furthermore, whether the request for challenge is a case where it is evident that it is for the purpose of delaying the disciplinary procedure should be determined by comprehensively taking into account the circumstances leading to disciplinary action, the timing and frequency of the request for challenge, the contents of the grounds for challenge asserted as the request for challenge

1. Regarding ground of appeal No. 1

Article 4(2)1 of the Disciplinary Committee shall be comprised of not less than five and not more than seven members (including one chairperson) (Article 4(2)1) of the Defendant Corporation’s Act; a person subject to disciplinary action may, where there are reasonable grounds to recognize that a member of the Disciplinary Committee is likely to make an unfair decision, explain the fact in writing and apply for challenge (Article 13(1)); where there is an application for challenge, a person in receipt of the application for challenge shall not participate in the resolution (Article 13(2)); on the other hand, at least two-thirds of the incumbent members and with the consent of a majority of members present (Article 14(2)).

However, since a request for challenge is originally against an individual disciplinary committee member and a resolution on a request for challenge is made individually, even if several requests for challenge are filed, a disciplinary committee member subject to a request for challenge is unable to participate in a resolution on his/her own, and may participate in a resolution on other persons. However, if the grounds for challenge are due to common causes, not only his/her own resolution but also the resolution on other persons may not participate in a resolution on the request for challenge. However, in full view of the contents and purport of the disciplinary provisions of the above case, where a disciplinary committee cannot be formed by simultaneously a request for challenge against all or most of the disciplinary committee members, or where it is evident that the request for challenge is for the purpose of delaying disciplinary proceedings, it is inappropriate to deem that such request for challenge is an abuse of the right to request challenge, and thus, it is inappropriate to deem that such request for challenge is not permissible. Accordingly, it cannot be deemed that the request for challenge is prohibited from participating in a decision on the request for challenge (see Supreme Court Decision 2007Do127, Jan. 30, 2009).

Comprehensively taking account of the circumstances in its holding, the lower court determined that the removal of the Plaintiff’s motion cannot be deemed as null and void due to its unlawful procedural violation, even if the six disciplinary committee members, who received the motion from the Plaintiff, participated in the challenge resolution for a reason common to himself/herself, on the ground that the Plaintiff’s motion for challenge was obviously for the purpose of delaying disciplinary proceedings.

In light of the above legal principles and records, we affirm the above judgment of the court below. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the abuse of the right to challenge, or by exceeding the bounds of free evaluation of evidence against logical and empirical rules.

2. Regarding ground of appeal No. 2

In a case where a disciplinary measure is taken against a person subject to the disciplinary measure who is a teacher and staff member, the person subject to the disciplinary measure is at the discretion of the person subject to the disciplinary measure. However, the disciplinary measure is unlawful only when it is deemed that the person subject to the disciplinary measure significantly lacks validity under the social norms, and that the person subject to the disciplinary measure has abused the person subject to the disciplinary measure. If the disciplinary measure against a teacher and staff has considerably lost validity under the social norms, the disciplinary measure should be determined by taking into account various factors such as the content and nature of the misconduct causing the disciplinary measure, the purpose to achieve the disciplinary measure, the criteria for the determination of the disciplinary measure, etc. according to the specific case, if it can be deemed that the contents of the disciplinary measure are clearly unreasonable objectively and clearly. Even if the exercise of the authority to take the disciplinary measure is left at the discretion of the person subject to the appointment authority, it violates the public interest principle that should exercise the disciplinary right for public interest, or is generally considered as a disciplinary reason, compared to the degree of flight, and thus violates the principle of proportionality or the principle of fairness.

Comprehensively taking account of the circumstances in its holding, the lower court determined that the instant removal disposition cannot be deemed as an abuse of discretionary power, as it considerably loses validity by social norms.

In light of the above legal principles and records, we affirm the above determination by the court below, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding deviation and abuse of discretion of disciplinary action, or exceeding the bounds of free evaluation of evidence against logical and empirical rules.

3. Regarding ground of appeal No. 3

The lower court acknowledged the facts based on the adopted evidence, and determined that the grounds for the disciplinary action against the Plaintiff were all met with respect to the grounds for the disciplinary action Nos. 1, 2, 4, and 5 among the grounds for the disciplinary action against the Plaintiff. As to the grounds for the disciplinary action No. 3, the Plaintiff cannot be subject to disciplinary action on the ground that the Plaintiff violated Article 5 of the Regulations on Overseas Travel of Teachers and Staff by divers for overseas travel without obtaining approval from the president of the University of this case. However, the Plaintiff’s act

In light of the relevant legal principles and records, the above determination by the court below is acceptable, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok (Presiding Justice)