Plaintiff (Attorney Kim Jong-soo, Counsel for plaintiff-appellant)

Gwangju Metropolitan City Superintendent of Office of Education (Attorney Choi-soo, Counsel for defendant)

May 30, 2019

Gwangju District Court Decision 2018Guhap10958 Decided January 10, 2019

1. Revocation of the first instance judgment.

2. The Defendant’s dismissal disposition against the Plaintiff on December 11, 2017 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Reasons for the disposition, 2. Plaintiff’s assertion, 3. Relevant statutes;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

4. Determination

A. Relevant legal principles

Even if the criteria for punitive administrative disposition are prescribed in the form of Ordinance, it has no effect to externally bind citizens or courts, and whether such disposition is legitimate or not must be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes, not only the above criteria for disposition, but also the content and purport of the relevant Acts and subordinate statutes. Thus, it cannot be said that the pertinent disposition is legitimate as soon as it conforms to the above criteria for disposition. In a case where there is a reasonable ground to believe that a punitive administrative disposition in accordance with the above criteria for disposition is considerably unreasonable in light of the content and purport of the relevant Acts and subordinate statutes and the contents and purport of the relevant Acts and subordinate statutes, it may constitute deviation or abuse of discretionary power (see Supreme Court Decision 2007Du6946, Sept.

B. Specific determination

In light of the above legal principles, the above evidence and the statements in Gap evidence Nos. 4 through 5, 8 through 16, and 24 through 37 comprehensively take into account the following circumstances acknowledged by comprehensively considering the purport of the entire pleadings, the instant disposition constitutes a case where a reasonable ground exists to deem that the instant disposition is considerably unfair in light of the contents and purport of the Plaintiff’s act of violation and the relevant statutes. Accordingly, the Plaintiff’s assertion has merit.

1) The instant misconduct constitutes “violation of the duty to maintain dignity of 7.” and “sexual assault.” among the types of misconduct prescribed by the disciplinary criteria under Article 2(1) [Attachment Table] of the Regulations on Disciplinary Action, etc. on Public Educational Officials (hereinafter “Disciplinary Action Regulations”). According to the above disciplinary criteria, “in a case where the degree of corruption is serious and intentional, or where the degree of misconduct is weak and intentional,” “in a case where the degree of misconduct is severe, gross negligence, or where the degree of misconduct is weak,” “in a case where the degree of corruption is serious and long, or where the degree of misconduct is weak and gross negligence,” the “in a case where the degree of corruption is weak and transitional,” and “in a case where the degree of dismissal is excessive,” the person having authority to take disciplinary action should take into account the “in a case where the person under disciplinary action committed sexual assault,” and thus, the said disciplinary measure should take into account that the person’s duty to guide students to grow personally, and thus, it does not seem legitimate.”

2) Nevertheless, taking full account of the following circumstances, the instant disposition that completely deprived of the Plaintiff’s status as a public educational official due to the Plaintiff’s disciplinary action seems to be considerably unfair in light of the Plaintiff’s content of the violation and the content and purport of the relevant statutes.

① Article 2(1) of the Rules on Disciplinary Action provides that a disciplinary action shall take into account not only the details of misconduct, degree of misconduct, and seriousness of negligence committed by a discipline accused person, but also the ordinary level of behavior, performance, public service, degree of penance, and other circumstances of the discipline accused person, etc. In light of the foregoing, the criteria for disciplinary action are prescribed to determine the level of disciplinary action only on the basis of the types of misconduct, degree of misconduct, and gravity of negligence in the literal sense, the person having authority to take an action may conduct minor disciplinary action more than the above criteria in consideration of the following circumstances: (a) the person having authority to take an action, as well as the ordinary level of behavior, performance, (b) the person having authority to take an action, and (c) the degree of penance, or other circumstances.

② In particular, in the case of the instant misconduct, the existence or degree of the misconduct may vary considerably depending on the victim’s intent, gender, age, relationship between the offender and the victim, background leading to the act, specific form of the act, objective situation surrounding the act, and sexual morality of the times. As such, the person having authority over disciplinary action, as the person having authority, should also consider the aforementioned matters in the instant disposition.

③ We examine the course and contents of the instant misconduct, not the Plaintiff’s planned act, but the Plaintiff appears to have committed the instant misconduct in a timely and prompt manner in a state where the Plaintiff significantly lacks the ability to make a decision due to drinking. In light of the fact that the Plaintiff met the part right side and right chest part of the victim’s clothes located in the front seat of the taxi with his hand, and that the victim immediately stops the vehicle and demanded the Plaintiff to leave the vehicle, it seems that the degree of the instant misconduct was very heavy.

④ On September 10, 2017, the day following the day when the Plaintiff committed the instant wrongful act, the victim testified to the effect that “not to report the Plaintiff’s indecent act, but to require the Plaintiff to pay the fee and to leave the taxi, but the Plaintiff was willing to get the Plaintiff to leave the taxi with the help of the police who did not respond to the request.” After the police statement, the Plaintiff and the Plaintiff expressed their intention to have the Defendant want not want to be punished against the Plaintiff. In light of the fact that the victim is a female under 67 years of age with abundant social experience, and the content and details of the said statement by the victim, it seems that the victim did not have any significant mental shock or sexual humiliation.

⑤ Although the Plaintiff did not memory at the time of the instant wrongful act by drinking, the Plaintiff was found to have committed the instant wrongful act. However, the Plaintiff faithfully served as a teacher for about 25 years without being subject to any particular disciplinary action, and was given official commendation, including presidential commendation, and was given official commendation. Moreover, the Plaintiff’s number of club teachers submitted a written application and sought a serious disciplinary measure against the Plaintiff. (6) On November 27, 2017, the Seoul Special Metropolitan City Public Educational Officials Disciplinary Committee expressed a majority of the 7 members present at the Committee (including the Chairperson) “Dismissal” as “four members”, “one lecture, etc.” and “one member present at the Committee. However, at the time, the Plaintiff appears to have expressed the opinion that the Plaintiff was subject to the instant disciplinary measure beyond the permissible level of disciplinary action, and that the Plaintiff was subject to heavy disciplinary action against the instant disciplinary action.

5. Conclusion

If so, the plaintiff's claim shall be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be accepted as per Disposition.

Judges Choi Jong-su (Presiding Judge)

1) Meanwhile, Article 4(1) and 4(2)4 of the Rules on Disciplinary Action provides that an act of sexual assault may not constitute grounds for mitigation, even if the act of sexual assault contributed to a discipline accused person. However, as seen earlier, the above provision does not bind the court or the general public.