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(영문) 대법원 1969. 8. 26. 선고 69누74 판결

[파면처분취소][집17(3)행,012]

Main Issues

The case where it is recognized that a state public official falls under subparagraphs 2 and 3 of Article 78 and his choice of removal as a kind of disciplinary action does not deviate from the scope of discretion.

Summary of Judgment

The case where it is recognized that the removal from office as a kind of disciplinary action falls under subparagraphs 2 and 3 of Article 78 of the State Public Officials Act and it does not deviate from the scope of discretion.

[Reference Provisions]

Subparagraph 2 and 3 of Article 78 of the State Public Officials Act

Plaintiff-Appellant

Plaintiff

Defendant-Appellee

Jeonnam-do Education Committee

original decision

Gwangju High Court Decision 68Gu17 delivered on May 13, 1969

Text

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

Reasons

The plaintiff's appeal is justified.

The court below recognized the following facts by cooking relevant evidence. In other words, the plaintiff was in charge of the withdrawal of salary at all South Korean high schools (title omitted) from April 1, 1965 to May 25, 1967. However, during that period, the plaintiff spent 45,100 won for the teaching materials between November 1, 1966 and March 1967 and 46,600 won for the research materials between March 1, 1967. The court below was just in examining the process of documentary evidence based on the premise to recognize this fact, and there was no reason for violation of documentary evidence as alleged in the above facts. From among evidential materials received under the plaintiff's assertion, the court below did not purport to dismiss this evidence before and after the judgment of the court below in light of the purpose of the court below.

The evidence No. 6, No. 4-1, No. 5-2 of the evidence No. 4-1, No. 5-2 of the evidence No. 6, No. 4-1, No. 5-2 is the time when the plaintiff was established (the title No. 22 of the record), and No. 3-2 of the evidence No. 3 is the time when the plaintiff was established, and the court below presumed this as a true official document pursuant to Article 327(1) of the Civil Procedure Act. The above argument is that the public fund as mentioned above is not embezzled by the plaintiff but embezzled by the non-party No. 1, but it is alleged to the purport that the court below was lawfully dismissed. In short, the court below did not err in recognizing the facts of the original court without any reasonable ground. In addition, according to the evidence duly recruited by the court below, the court below acknowledged the opportunity for the defendant to give a sufficient opportunity to defend the plaintiff in advance to punish him/her, and it does not purport to the purport that the court below was tried.

The procedure of the judgment of the court below does not affect the conclusion of the judgment below, on the ground that it did not examine whether the report of investigation submitted by the plaintiff was genuinely formed at the committee of disciplinary action. In other words, there are no errors of misunderstanding of facts, omission of judgment, incomplete deliberation, lack of reasons, inconsistency with the reasoning, failure to conduct investigation, and evidence as alleged in multiple arguments. If so, the plaintiff's above facts constitute disciplinary grounds under subparagraphs 2 and 3 of Article 78 of the State Public Officials Act, and it cannot be said that the defendant was dismissed as a type of disciplinary action, and this goes beyond the scope of discretionary power. This does not affect the conclusion of the judgment of the court below even though the court below omitted its judgment on this point. Since the above misconduct committed by the plaintiff, since the non-party 2 and 3 et al. cannot escape from legal liability, it cannot be exempted from the plaintiff's administrative responsibility. Thus, this appeal is without merit, and the costs of the appeal shall be dismissed.

This decision is consistent with the opinions of the involved judges.

The judges of the Supreme Court (Presiding Judge) of the Red Net Sheet