2016Guhap6761 Revocation of revocation of dismissal

A person shall be appointed.

100 sis

Attorney Lee Do-young

00 Superintendent of the Provincial Office of Education

Litigation Performers;

Law Firm Doz.

Attorney Lee In-bok

April 5, 2017

May 10, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s dismissal disposition against the Plaintiff on March 25, 2016 is revoked.

1. Details of the disposition;

A. The Plaintiff started a high school on March 1, 1997 (a) and worked as a secondary school teacher and worked as a secondary school teacher from March 1, 2014 to (b) as a high school teacher.

B. On March 10, 2016, the Public Educational Officials 00 Disciplinary Committee decided to dismiss the Plaintiff on March 10, 2016 upon the Defendant’s request for disciplinary action on the grounds that the Plaintiff violated Article 7 of the Act on the Protection of Children and Juveniles against Sexual Abuse and Article 17 of the Child Welfare Act by engaging in indecent acts by force and sexual agency for students, and the specific disciplinary reasons are as follows (hereinafter collectively referred to as “Disciplinary reasons of this case”).

1 ) 원고는 2015년 3월부터 피해학생 OOO ( 이하 ' 피해학생 ' 이라 한다 ) 에게 습관 적으로 어깨동무는 쉬는 시간이나 둘이 있을 때 , 손잡기는 교무실이나 둘이 있을 때 , 뒤에서 안기는 도서실에서 야간자율학습을 하거나 둘이 있을 때 , 팔 안쪽 만지기는 교 실 문 앞에서 한 사실이 있다 . 또한 원고는 2015년 9월부터 야간자율학습 시간에 피 해학생을 불러내어 둘이 있을 때에 정면에서 포옹을 아주 꽉 하였고 , 다른 날 야간자 율학습 시간에 피해학생을 교무실로 불러서 뽀뽀를 하려고 얼굴을 들이댔으나 피해학 생이 피하여 피해학생의 뒤통수에 입술이 닿은 사실이 있으며 , 2015 . 10 . 12 . 16시경 에는 원고와 피해학생이 피자를 사러 차를 타고 가다가 피해학생이 내리기 직전에 원 고가 뽀뽀를 하려고 하였으나 피해학생이 피하여 피해학생의 뒤통수에 입술이 닿은 사 실이 있다 ( 이하 ‘ 제1 징계사유 ' 라 한다 ) .

2) On October 15, 2015, the Plaintiff came to leave a Handphone room for victim students to other friendships, and made a paper containing the content of the survey, and there is a fact that: (a) the Plaintiff, along with the text of the statement that “I would like to investigate the reason for the act; (b) I would like to inquire into the reason for the act; (c) I would like to ask the victim to answer at any time; (d) I would like to call out a question stating whether there is inconvenience at any time; and (e) I would like to request the victim to answer after delivery (hereinafter referred to as “Disciplinary Reason 2”).

3) On October 16, 2015, the Plaintiff: (a) stated that all actions that he had done to son until now do not have to do so merely as a third person; (b) thought that he had a pipe. It does not mean that he had a son above her. It would be possible to understand that she would have understood that she would not have any other work as the father’s leader; (c) I want to see that she would have an opportunity to do so for adults to view that she would not have a flickly. I would like to say that she would not have a flickly thought that she would not have a flick."

C. On March 25, 2016, the Defendant dismissed the Plaintiff under Article 63 of the State Public Officials Act and Article 78(1)3 of the State Public Officials Act (hereinafter “instant disposition”).

D. The Defendant dissatisfied with the instant disposition and filed an appeal review with the appeals review committee. However, the 100 appeals review committee rendered a decision to dismiss the said claim on June 15, 2016, and the Plaintiff was notified of the said decision on June 30, 2016.

【Ground for recognition】 Facts without dispute, entry of Gap evidence 1 to 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Although the Plaintiff had a physical contact with a victim student, such as shouldering and knicking, the Plaintiff did not have any act of pottering or kiscing the face to do so, and the Plaintiff’s new physical contact with the victim student cannot be deemed to constitute indecent act. The instant disposition is unlawful due to the absence of the grounds for disciplinary action.

2) In light of various circumstances such as the Plaintiff’s agreement with the victim student that the victim student did not want to be punished against the Plaintiff, the victim student was not an issue-raising matter, and the Plaintiff’s exemplary living in the school, the instant disposition is unlawful as it deviates from and abused the discretion.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

(c) Facts of recognition;

1 ) 경기♤ 경찰서는 2015 . 11 . 27 . 다음과 같은 원고의 피의사실에 대하여 기소의 견으로 검찰에 송치하였다 .

Suspect (the plaintiff in this case is the plaintiff in this case; hereinafter the same applies) is a person who is a high school teacher, and is a student of damaged learning.

A) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by Compulsion)

From the beginning of July 2015 to the middle of October 2015, the suspect committed an indecent act against the victim who was conducting night self-learning within high school (vi) in the aftermath of the next, and brought the victim who was in the rooftop into the rooftop. Accordingly, the suspect committed an indecent act against the victim who was a juvenile.

B) Child Welfare Act violation (sexual abuse)

Despite the fact that anyone does not commit sexual abuse, such as sexual harassment that causes sexual harassment to a child, he/she has committed sexual abuse by continuously and repeatedly making physical contacts with a victim student as described in the above A).

2) On April 21, 2016, the Suwon District Prosecutors’ Office to which the instant case was forwarded was suspended from prosecution as follows.

A) Facts of suspicion

From the beginning of July 2015 to October 16, 2015, she shall not sprinke the trees in good hands from the back of the sea student sitting at a high school library (6). On the rooftop of the school, she saw the inside part of the victim student on the same rooftop, she sphere the inside part of the victim student, sphere the inside part of the victim student on the same rooftop, she sphere in the passenger car, and avoided the victim student's sphere in the passenger car, and so she tried to avoid the occurrence of the victim student's sphere, and "it was thought that she was not a third party to whom she had acted so far or that she had thought that she was a student or more," she violates the Child Welfare Act by engaging in sexual harassment, such as forcing a victim student to have sexual intercourse with the victim student.

B) Grounds for non-prosecution

○ Facts of suspicion are recognized.

○ Suspect is a national high school teacher.

As ○○ Suspect worked at a high school, he/she has made efforts to provide guidance to students without interest in studies, unlike the previous school. It is well followed by the family type of a victim student who is not interested in the study, and the fact that he/she gradually led to the instant crime, and there is a reason to take into account the circumstances.

○ A victim student does not want to punish a suspect under an agreement with the suspect.

○ Suspect is in depth divided into his or her mistake.

In full view of the above facts and the fact that the suspect received a lot of commendation as a result of extremely high contribution while living a school life, indictment of the suspect is harshly exempted.

○ The prosecution shall be suspended.

[Reasons for Recognition] Gap evidence 7-1, 2, and Eul evidence 6-1, 2

(d) Determination:

1) Determination as to the existence of grounds for disciplinary action

In addition to the above facts of recognition, the grounds for the instant disciplinary action are all recognized in full view of the following circumstances, which can be recognized by the evidence Nos. 1, 2, 4, and 3-1 of evidence Nos. 3-1. The Plaintiff’s allegation in this part is without merit.

가 ) 피해학생은 2015 . 10 . 26 . 자 진술서에서 원고가 어깨동무 , 손잡기 , 뒤에 서 안기 , 팔 안쪽 만지기 등 신체 접촉을 하자 이에 거부감을 느꼈고 , 이에 원고와 단 둘만 있는 자리를 만들지 않기 위해 최대한 피해 다니자 , 원고는 2015 . 10 . 15 . 제2 징계사유와 같이 설문조사를 하면서 피해학생에게 답변을 요구하였고 , 그 다음날인 인 2015 . 10 . 16 . 제3 징계사유와 같이 말하였다 ' 고 진술한데 이어 , 2015 . 10 . 28 . 문답 시에도 ‘ 제2 징계사유와 같이 원고가 어깨동무 , 손잡기 , 뒤에서 안기 , 팔 안쪽 만지기 , 정면에서 포옹 꽉 하기 , 뽀뽀를 하려고 얼굴을 들이댔으나 이를 피하여 뒤통수에 입술 닿기 등 신체적 접촉을 한 사실이 있고 , 당시 성적수치심이나 모욕감을 느꼈는데 특히 정면에서 포옹을 한 사실과 뽀뽀를 하려고 한 사실에 대하여는 강한 성적수치심이나 모욕감을 느낀바 , 정면에서 포옹했을 때에는 왜 이러시느냐고 거부반응을 표시하였고 , 뽀뽀를 하려고 하였을 때에는 너무하시는 것 아니냐고 소리를 질렀다고도 진술하여 이 사건 징계사유에 해당하는 사실은 물론 그러한 원고의 언동으로 인하여 느낀 성적 수치심이나 모욕감에 대하여서까지 매우 구체적으로 진술하였고 , 그 신빙성을 배척할 만한 사정을 찾아보기 어렵다 .

B) On December 8, 2015, the Plaintiff voluntarily stated that, at the time of 000 square meters of the Office of Education and the door-to-door, the Plaintiff stated that “I am posposium was located in the ice cream, and ambling the Plaintiff’s sposium to the Plaintiff’s sposium. However, the Plaintiff’s sposium had a sposium sposium, but ambling the Plaintiff’s sposium to the back of the victim’s sposium, as the victim appeared, there was a sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium sposium.”

C) On the ground that the Plaintiff, a high school teacher and a minor student, took physical contact with the Plaintiff without any prior consent or without any prior consent, and the Plaintiff’s physical contact is apparent that it constitutes indecent act constituting Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse or indecent act by force constituting at least Article 7(5) of the same Act. The Plaintiff’s words and actions, including the above physical contact, constitute sexual harassment that causes sexual humiliation to the children prohibited under Article 17 subparag. 2 of the Child Welfare Act and that constitutes sexual harassment under Article 2 subparag. 3(d) of the National Human Rights Commission Act, are sufficient to deem that such physical contact was committed in violation of the duty to maintain the dignity.

D) Even if part of the Plaintiff’s act does not constitute an indecent act by force or indecent act by force, it is difficult to view that the Plaintiff’s refusal of the victim’s sexual intercourse at the time of the Plaintiff’s towing and continuous and repeated conduct on the premise of the victim’s physical contact and sexual intercourse is an appropriate act as a teacher. It does not interfere with the recognition of the grounds for disciplinary action that the Plaintiff breached the duty to maintain the dignity of the Plaintiff as a teacher by making improper speech and behavior against the victim within the same scope in that the basic social facts were based on the specific facts prior to the legal assessment of the instant disciplinary cause.

2) Determination on whether or not to deviate from or abuse of discretion

A) When a disciplinary action is imposed on a person subject to disciplinary action who is a public official, what kind of disciplinary action is imposed shall be left at the discretion of the person having authority to take the disciplinary action, and only when the person having authority to take the disciplinary action as an exercise of discretionary authority deems that the person having authority to take the disciplinary action significantly lacks validity under social norms, such a disciplinary action is unlawful. In order to deem that a disciplinary action against a public official has considerably lost validity under social norms, following the specific cases, the contents and nature of the offense causing the disciplinary action, the administrative title intending to achieve by the disciplinary action, and the criteria for the determination of disciplinary action, etc. should be considered as clearly unfair as objective (see, e.g., Supreme Court Decision 2012Du10895, Oct. 11, 2012).

B) In light of the following circumstances that can be seen by adding up the descriptions of the evidence No. 1 and whether the Plaintiff was engaged in the entire pleadings as well as the circumstances acknowledged in the above No. 1, even if considering all the circumstances alleged by the Plaintiff, the instant disposition is objectively and objectively unreasonable, and thus, cannot be deemed as a deviation from and abuse of discretionary power, as it considerably lacks validity under the social norms. The Plaintiff’s assertion on this part is without merit.

1. Article 2 of the former Rules on Disciplinary Measures, etc. against Public Educational Officials (amended by Ordinance of the Ministry of Education No. 128, Mar. 24, 2017) [Attachment Table] provides that the criteria for disciplinary measures against violations of the duty to maintain dignity shall be the reprimand or removal for sexual harassment according to the degree of misconduct and degree of intent or negligence, and that sexual harassment against minors shall be dismissed or removed for sexual violence. Unless there are special circumstances such as arbitrary or unreasonable determination of disciplinary measures, it shall be sufficiently respected in determining the appropriateness of disciplinary measures taken therefrom. Accordingly, the Plaintiff’s actions constituting the disciplinary action of this case constitute sexual assault against juveniles and sexual harassment, and thus, the Plaintiff’s actions constituting the disciplinary action of this case constitutes unlawful acts that are subject to dismissal or more under the above provisions, and thus, do not exceed the criteria for disciplinary measures.

② The Plaintiff is a teacher who requires a high level of ethical awareness and responsibility, and not only is in a position to command and supervise the students, but also has a duty to protect the students from sexual crimes and to educate them so that they can grow up by cultivating a healthy sexual concept, and thus, continuously and repeatedly commits indecent acts and acts against them, which are highly likely to be subject to criticism by doing a legal speech and behavior in a male and female relationship, and thus seriously undermine their dignity as a teacher, it cannot be deemed that the degree of misconduct is somewhat weak.

③ Through the instant disposition, it cannot be said that the public interest, which seeks to recover the national trust of public educational officials, is smaller than the disadvantage the Plaintiff suffered by eradicating the misconduct of the teachers, such as sexual assault and sexual harassment, protecting students so that they can form a proper sexual sense of value, and establishing a discipline by eradicating the corruption of public educational officials.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Choi Jong-chul

Judges Lee Yong-hee

Judges Park Jae-chul

Related Acts and subordinate statutes

The State Public Officials Act

Article 63 (Duty to Maintain Dignity)

No public official shall commit any act detrimental to his/her dignity, regardless of whether it is for his/her duties.

Article 78 (Grounds for Discipline)

(1) If a public official falls under any of the following subparagraphs, he/she shall request a resolution on disciplinary action and take disciplinary action:

shall be subject to disciplinary action according to the resolution.

1. Where he/she violates this Act or any order issued under this Act;

2. Duties in relation to duties (including those imposed in relation to the status of public officials by other Acts and subordinate statutes);

When he has neglected or neglected to perform his duties;

3. Where he commits an act detrimental to his prestige or dignity, regardless of a connection with his duties.

Article 79 (Categories of Discipline)

Disciplinary action shall be classified into removal, dismissal, demotion, suspension from office (suspension from office), reduction of salary, and reprimand (regument).

Decree on Disciplinary Action against Public Educational Officials

Article 15 (Determination of Disciplinary Action)

When the Disciplinary Committee makes a decision on a disciplinary case, it shall determine and discipline a discipline accused person's participation in the conduct and performance of his/her duties.

The details and circumstances of the request for guidance shall be taken into consideration.

- Rule on Disciplinary Action, etc. on the former Public Educational Officials (Amended by Ordinance of the Ministry of Education No. 128, Mar. 24, 2017);

Article 2 (Criteria for Disciplinary Action)

The Public Educational Officials Disciplinary Committee under Article 2 (1) of the Decree on Disciplinary Action against Public Educational Officials (hereinafter referred to as the "Disciplinary Committee").

(non-performance) type of misconduct of a discipline accused person, degree of misconduct, severity of negligence (a serious) and degree of negligence; performance record;

Pursuant to the criteria for disciplinary action in the attached Table, taking into account the meritorious deeds, degree of penance, other circumstances (e.g., circumstances), etc.

such disciplinary action shall be decided.

Article 4 (Reduction of Disciplinary Action)

(1) The Disciplinary Committee shall rendered a meritorious service falling under any of the following subparagraphs to a person for whom a disciplinary resolution is requested:

disciplinary action may be mitigated if there is a disciplinary action: Provided, That a public educational official shall be subject to disciplinary action or other rules.

Where there is a fact that he/she has received a warning, the meritorious prior to the disciplinary action or warning shall be subject to mitigation.

shall be excluded from this chapter.

1. A meritorious service awarded a decoration or medal under the Awards and Decorations Act;

2. Official prizes awarded by the Prime Minister or higher pursuant to the Regulations on Official Commendation of the Government (in the case of teachers, the central implementation thereof);

An official commendation of the Vice Minister or higher (including the head of a agency equivalent thereto) or of the Superintendent of an Office of Education or higher;

[Public Service]

3. A meritorious service selected as an exemplary public official pursuant to the Regulations for Exemplary Officials;

(2) Notwithstanding paragraph (1), no disciplinary action shall be mitigated in any of the following cases:

4. Where he/she has become subject to disciplinary action due to any of the following crimes or acts:

(a) Sexual crimes under Article 2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

(d) Sexual harassment under subparagraph 3 (d) of Article 2 of the National Human Rights Commission Act;

[Attachment]

Article 2. Criteria for Disciplinary Action (Related to Article 2)

A person shall be appointed.

/National Human Rights Commission Act

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

3. (Omission)

(d) Sexual harassment (public agencies, local governments, and elementary, middle, etc.).

Schools of various levels established under Article 2 of the Education Act, Article 2 of the Higher Education Act, and other Acts;

Members and use of public service-related organizations under Article 3-2 (1) of the Public Service Ethics Act;

his position or a worker’s sexual speech, behavior, etc. in relation to his duties, etc.

A person shall make others feel sexual humiliation or aversion, or comply with sexual words, actions or other demands, etc.

(1) An act of giving disadvantage in employment on the ground that the act has not been committed