2011Du29540 Revocation of revocation of disposition of dismissal

A

Buniversity President

Seoul High Court Decision 2010Nu26430 Decided November 3, 2011

February 27, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The judgment of the court below

The court below, based on its adopted evidence, published and published 204 thesis that the plaintiff had established Ma-1, a human somatic cell reproduction 2004 to J on February 204. The plaintiff's 204 thesis (the examination of comparing and analyzing the genes of somatic cells and the genes extracted from stem cells and confirming the establishment of stem cell system by somatic cell reproduction) was operated by researchers of the plaintiff's research team, and the plaintiff's 1-1 stem cell paper was not entered into 0-1 to 20-1 to 9-1 to 20-1 to 20-1 to 20-1 to 20-1 to 20-1 to 20 to 20-1 to 20-2 to 20 to 20-1 to 20 to 20 to 20-1 to 20 to 20 to e-1 to e-1 to e-1 to e-1 to e-2 to e-the stem cell cells stem cells.

Furthermore, the lower court determined that the Plaintiff’s disposition of this case was made on the ground that the Plaintiff was the first author and the joint principal manager of research and the general manager of research on the paper in 2004 and the paper in 2005 on the ground that the Plaintiff neglected the duty to direct and supervise the researchers, and that it violated the duty to maintain good faith and dignity as public educational officials by directly participating in the research of experiment data, and that the grounds for disciplinary action of this case is recognized, but it considerably damaged the trust in the scientific truth of the paper in 2004 and 205 were attributable to the Plaintiff’s acts of interference with the Plaintiff’s research duties through the manipulation of the research results in a fraudulent and arbitrary and arbitrary examination results and the combination of stem cell lines. In so doing, the lower court determined that the Plaintiff was unable to train later scholars, and that the Plaintiff’s efforts was made to establish stem cells with outstanding achievements in the field of research on animal reproduction, etc., and that the Plaintiff was in violation of the duty to dismiss the Plaintiff from his discretion for 200 years and the removal of this case.

2. Judgment of the Supreme Court

However, it is difficult to accept the above decision of the court below on disciplinary action.

In a case where 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 unlawful only when it is deemed that the person having authority to take the disciplinary measure has abused the person having authority to take the disciplinary measure since the disciplinary measure as an exercise of authority substantially lacks validity under the social norms. If a disciplinary measure against a public official 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, administrative purpose to be achieved by the disciplinary measure, criteria for the determination of disciplinary measures, etc., and where it can be objectively and objectively deemed that the content of the disciplinary measure is objectively unreasonable (see, e.g., Supreme Court Decision 2010Du16172, Nov.

In the field of research, which requires strong loyalty, morality, and ethics in the nature of duties that the Plaintiff as a professor who provides students guidance and research at the National University, and the Plaintiff as a scientific person requires more strict control of research procedures and seek scientific truth in the course of the preparation of a thesis in order to ensure bioethics and safety. Moreover, since it is difficult for other scholars to verify the authenticity of the data out of the outside, subsequent research is carried out on the premise that the data, etc. listed in the thesis are fact-finding, and the subsequent research is conducted by other scholars, such as where the data itself is fabricated, there is no subsequent research if the data itself is fabricated, and thus, there is a significant damage to the whole academic community. Therefore, there is no serious responsibility for the scientific person’s act of preparing and publishing a thesis of false content by manipulating experimental data.

According to the reasoning of the judgment below and evidence adopted by the court below, the plaintiff is responsible for direction and supervision to conduct research-related experiments as joint performers responsible for all research tasks at the 2004 research papers and 205 research papers. BA and AD dispatched from E to the research team were conducted part of the experiments under the plaintiff's order. The plaintiff neglected the direction and supervision of BA and AD and failed to control their experimental papers in 204, and failed to prevent them from manipulating 9 stem cell cells in the 205 paper with 11 stem cell line, so that the plaintiff had already been issued 20 years old stem cell cells by using the 11st stem cell line. The plaintiff did not request the 205-year stem cell cells from EM research papers to be published, and the plaintiff did not request the 205-year stem cell cells from EM research papers to be published, and the plaintiff did not request the 1-year stem cell cells to be published in the 2004 research paper.

According to the above circumstances, the primary responsibility for which the trust in the scientific truth of the thesis in 2004 and 2005 was significantly damaged is not only the Plaintiff who neglected the direction and supervision of the Institute, but also the Plaintiff who ordered a wide range of experimental data manipulation and the writing of false contents of the thesis. Even when considering the manipulation of partial inspection results and the selection of stem cell mixing as revealed after the instant disposition, the Plaintiff’s responsibility for the preparation and publication of a false thesis cannot be deemed to be weak.

Therefore, even if the Plaintiff had achieved in the field of animal reproduction research, etc. as acknowledged by the lower court, considering the following: (a) the Plaintiff’s duties performed by the professor of the National University; (b) the characteristics of the research in this case; (c) the need for strict disciplinary measures to prepare false papers; (d) the Plaintiff intentionally fabricated part of the data in this paper; and (e) the Plaintiff’s failure to take strict disciplinary measures, the Plaintiff’s establishment of research discipline and the Plaintiff’s failure to recover the public trust in all scientific researchers and B universities, etc., the disciplinary measures taken in this case are objectively and objectively unreasonable, and thus, cannot be deemed to have been deemed to have exceeded or abused the discretionary power that

Nevertheless, the lower court determined that the instant disposition was illegal as it deviates from the scope of discretion, based on the circumstances stated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of discretion in disciplinary action, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding Justice Yang Chang-soo

Justices Park Byung-dae and Lee Byung-dae and Lee Byung-dae

The presiding judge

Justices Park Jae-young

The Chief Justice Park Jae-young

Justices Kim Jae-tae