(영문) 부산고등법원 2016.1.29.선고 2015누21285 판결

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, this part of the reasoning is accepted by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not have made a solicitation to D for a drunk driving case, and the Plaintiff did not instruct E to resolve the crackdown on drunk driving, forced E to resign, and provided money and valuables in consideration thereof, and even if the Plaintiff provided money and valuables to E, this does not constitute a reason for the Plaintiff’s disciplinary action. Even if there were some grounds for disciplinary action, the dismissal disposition is too harsh in light of the meritorious deeds such as commendation given by the Plaintiff. Accordingly, the instant disposition is erroneous in matters of law that misleads the Plaintiff about the grounds for disciplinary action, and deviates from and abused discretion.

B. Relevant statutes

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

1) On October 23, 2012, F (hereinafter referred to as "G") calls around 30: around 30, 2012 to the effect that the Plaintiff, who was aware of the fact that he was under the control of drinking driving as above, was under the control of drinking driving, in the vicinity of the bus stops in front of the solar industry located in Geum-gu, Busan, for the purpose of controlling drinking driving in the vicinity of the bus stops in front of the solar industry.

2) The Plaintiff called the above phone to E, who worked at the security and traffic of the Geum-gu Police Station and the three teams of the traffic safety system, and directly called to the above drinking control site and dialogue with D who had been engaged in drinking control at the time, and returned to his office.

3) Three teams, such as J, were accompanied by G to the Geum-gu Police Station in order to measure drinking on the same day at around 01:00.

4) On the other hand, after receiving the phone from the Plaintiff as above, E called the Fri-gu Police Station and called the Plaintiff at around 00:55 on the same day. On the same day, E called the Plaintiff, at around 01:15, after having arrived at the Fri-gu Police Station, called G by making a phone to G and left the Fri-gu Police Station at his own discretion without notifying at all to the employees of the three teams of the traffic safety department. On the same day, E called the Plaintiff at around 01:38 and 01:46 on the same day.

5) On January 30, 2013, E submitted a written statement to the inspector that he did not return G voluntarily upon the request of the Plaintiff. On February 18, 2013, E submitted a written resignation in relation to the foregoing case, and received five million won from the Plaintiff on the same day.

【Uncontentious facts, Gap’s evidence 1, 2, and 5 (including branch numbers for those with branch numbers; hereinafter the same shall apply), Eul’s evidence 2, 3, and 12, Eul’s evidence 4-5, testimony of the witness E at the trial, and the purport of the whole pleadings

D. Determination

1) The existence of the grounds for disciplinary action in the instant case against D is acknowledged as above, and the following circumstances, which can be acknowledged in addition to the overall purport of evidence Nos. 5 and evidence Nos. 8-2 of the evidence Nos. 8-2 of the instant disciplinary action, i.e., D's statement that "I would have well known" from the Plaintiff that "I would like to make a solicitation for the conclusion of the instant case," and if D did not listen to the purport of the solicitation as above from the Plaintiff, it is not necessary to say that "I would like to go to the purport of "I would like to go to the Plaintiff," and it is not necessary to say that I would go to the drinking field directly over 12 hours at the night to request a kind of work, but it is difficult to accept it. In full view of the following circumstances, it is reasonable to view that the Plaintiff made D's solicitation for the drinking without drinking in the instant case to D.

B) The facts acknowledged prior to the instant resolution order with respect to E are as follows: (a) evidence Nos. 1, 2, 2, 2, 3, 5, and 12 evidence Nos. 2, 3, 5, and 4-3 and 5 evidence Nos. 4-5; and (b) evidence Nos. 3 and 5 in addition to the overall purport of the pleadings, it is reasonable to deem that the Plaintiff instructed E to resolve the case of drunk driving.

① In light of the Plaintiff’s experience of working as the Plaintiff and for at least eight years, E testified that the Plaintiff voluntarily returned to G by understanding that the Plaintiff was aware of the case of G’s drinking control, or that the Plaintiff was going to go to a gold police station. In light of the fact that E submitted a resignation letter at the time of inspection into G drinking-free incident, E attempted to protect the Plaintiff by silenting the Plaintiff’s instructions, and that E was already subject to a non-suspect disposition in criminal proceedings, and that it is difficult for the Plaintiff to find out false reasons to make a false statement due to the completion of the disciplinary proceedings, E’s testimony may be reliable.

② Not only the Plaintiff first known G but also it is more frequent and friendship (the Plaintiff, a member of Gdo control team, called the Plaintiff on drinking control). If the Plaintiff did not instruct the resolution of the case, “E” would have been able to take appropriate measures because the Plaintiff had already known about G’s drinking control case, and it would have been anticipated that the Plaintiff would take appropriate measures on his own because he had already known about G’s drinking control case. In addition, he did not receive a phone from G, and since he was in the state of drinking by his family members at the time, there was no need to conduct a vicarious driving for G.

③ Since E received the first call from the Plaintiff, the Plaintiff was 00:5:00,01:38:00 and 01:46 on three occasions. In a case where E voluntarily resolved the case of G, it would not be deemed that there would be no need to make a call to the Plaintiff over several occasions, and it would not be said that the Plaintiff did not take any measures against the horses of E that the Plaintiff arbitrarily returned home and drink alcohol together.

④ As seen earlier, the Plaintiff solicited D to make a request for the horse-driving case of G.

⑤ Although the Plaintiff asserted that E was a telephone call to identify the control team at the time, it seems that it was possible for the Plaintiff, who worked for the security and transportation department of the Geum-gu Police Station, to directly check the control team at the Geum-gu Police Station. Moreover, even at the direct control site, the Plaintiff, as the Plaintiff, did not have to know in advance the control team at the time, was difficult to accept the Plaintiff’s above assertion.

C) Article 61(1) of the State Public Officials Act provides that a public official may not give or receive any case donation or entertainment, whether directly or indirectly, in connection with his/her duties. The purport of this provision is not only to prevent a public official from committing an unlawful act in the course of performing his/her duties in exchange for an unlawful solicitation in advance, but to ensure the properness of a public official’s performance of duties, which protects the public official’s integrity and integrity in performing his/her duties, by preventing a public official’s act of receiving money or goods related to his/her duties without having to give or receive any unjust solicitation in advance (see Supreme Court Decision 97Nu16794 delivered on January 23, 1998).

In light of the above legal principles, the plaintiff ordered E to resolve the drinking-free driving case of G, namely, the plaintiff's order to submit a mixed list with other defects in the future, etc. When the inspection of the above case was conducted, E demanded E to submit a mixed list with the same passenger transport service at the same time. If E submitted a mixed list without permission for his own corruption, it provided a maximum amount of KRW 5 million to be viewed as a courtesy consolation money on the same day. According to the National Police Agency internal corruption reporting center operation and the regulations on the protection of reporter, police officers were aware of the fact of other public officials or forced or proposed to do so, they are obligated to report without delay. In light of the above circumstances, the plaintiff's duty to inform E of the resolution of the drinking-free driving case of the plaintiff, which is a police officer, and the plaintiff's indirect relation to E's duty to give and receive KRW 5 million in consideration of the plaintiff's indirect relation to E's duty to give and receive KRW 50 million in consideration of the disciplinary reasons and its independent statement.

2) Whether the discretionary authority is deviates or abused or not

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, it is at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure is illegal only when it is deemed that the person having authority to take the disciplinary measure has abused the discretionary power to the person having authority to take the disciplinary measure because the disciplinary measure as the exercise of the discretionary power has considerably lost validity under social norms, and

In order for disciplinary action against the disciplinary action to have remarkably lost validity under the social norms, the content and nature of the misconduct caused by the disciplinary action, administrative purpose to be achieved by the disciplinary action, criteria for the determination of the disciplinary action, etc. should be considered as cases where the disciplinary action can be objectively and clearly acknowledged as being objectively unreasonable (see Supreme Court Decision 97Nu14637, Nov. 25, 1997, etc.).

According to the above legal principles, the following circumstances can be acknowledged in light of the facts acknowledged as above. ① The plaintiff solicits D to criticize the drinking driving case of G, makes fright to regulate the drinking driving of G through E, and delivers KRW 5 million to E with consideration or consolation money for submitting resignation after making a reduced statement that E is held responsible for it in the course of inspection; as a police officer, it violates the duty of good faith and integrity; ② it is difficult to expect the plaintiff to fairly and strictly regulate the illegal act such as drinking driving, and ② it is difficult to expect that the police officer was subject to strict disciplinary action against the above act, and further, it can be objectively determined that the plaintiff's act constitutes a violation of the duty of fair and strict punishment against the plaintiff's police officer or police officer who was assigned to him/her for a long time, and the plaintiff's act of distributing KRW 5 million to E with compensation or consolation money for the submission of resignation. Furthermore, it is more objectively determined that the plaintiff's act of violating the duty of fair and strict punishment against the above police officer's own or police officer who was assigned to him/her.

3) Sub-decisions

Therefore, all of the grounds for disciplinary action of this case exist, and it cannot be deemed that the disposition of this case deviates from and abused discretionary power, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and it is so decided as per Disposition by the plaintiff's appeal.