[1] The standard for determining whether a disciplinary action against a public official is an illegal disposition beyond the scope of discretion

[2] Whether the pertinent disciplinary action can be maintained in a case where it is sufficient to recognize the validity of the pertinent disciplinary action only with the grounds for some other grounds, which are recognized as not recognized as a part of several grounds for disciplinary action (affirmative)

[3] The case holding that in case where a police officer was dismissed on the ground that he received money from the complainants of the case in charge, received entertainment and share, and committed a criminal act with no complainants to conceal it, even if the fact of receiving money is not recognized, the dismissal disposition does not deviate from and abuse the scope of discretion by the remaining grounds for disciplinary action, even if the remaining grounds for disciplinary action are not recognized

[1] Whether to take a disciplinary measure against a person subject to disciplinary action who is a public official is at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take a disciplinary measure as an exercise of discretionary power has considerably lost validity under the social norms, it is unlawful to take the disciplinary measure. In order to deem that a disciplinary measure against a public official has considerably lost validity under the social norms, it should be determined that the contents of the disciplinary measure are clearly unreasonable objectively in light of 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 the disciplinary measure, etc., depending on the specific cases.

[2] In a case where it is sufficient to recognize the validity of the pertinent disciplinary action only with the grounds for other disciplinary actions recognized even if some of the grounds for disciplinary actions are not recognized, such disciplinary action shall not be deemed unlawful even if taken

[3] The case holding that in case where a police officer was dismissed on the ground that he received money and valuables from the complainants of the case in charge, received entertainment and share, and committed a criminal act with no complainants to conceal it, even if the fact of receiving money and valuables is not recognized, the dismissal disposition does not deviate from and abuse the scope of discretion by the remaining grounds for disciplinary action, even if the remaining grounds for disciplinary action are not recognized

[1] Articles 78 (1) and 79 of the State Public Officials Act, Article 27 of the Administrative Litigation Act / [2] Article 78 (1) of the State Public Officials Act / [3] Articles 56, 61, 78 (1), and 79 of the State Public Officials Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 99Du1458 delivered on April 27, 1999 (Gong1999Sang, 123), Supreme Court Decision 97Nu14637 delivered on November 25, 1997 (Gong1998Sang, 280), Supreme Court Decision 99Du1458 delivered on April 27, 199 (Gong199Sang, 1072), Supreme Court Decision 99Du6101 delivered on October 8, 199 (Gong199Ha, 239) / [2] Supreme Court Decision 82Nu405 delivered on April 26, 198 (Gong1983, 1901), Supreme Court Decision 9Nu12939 delivered on December 26, 198 (Gong1983, 1901), Supreme Court Decision 9Nu12989 delivered on December 29, 1992)

Plaintiff

The Commissioner of the Local Police Agency

Seoul High Court Decision 2001Nu17038 delivered on June 21, 2002

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

1. According to the reasoning of the judgment of the court of first instance cited by the court below, the plaintiff was appointed as a policeman on March 6, 1982 and worked in the investigation and investigation division of Gangnam Police Station from February 17, 200, and (1) the plaintiff was offered entertainment amounting to 395,00 won upon receiving a request from Nonparty 1, the plaintiff, who was the complainant of the above case, for well handling the case, for the reason that the plaintiff was not subject to punishment for the above 10 months, and the plaintiff was not subject to punishment for the above 10 months since he was found to have been subject to punishment for the above 10 months, and the plaintiff was subject to punishment for the above 100,000 won on the ground that he was not subject to punishment for the above 10,000 won on the ground that he was not subject to punishment for the above 10,000 won on the ground that he was subject to punishment for the 1,000 won on April 1, 200.

2. However, when a disciplinary action is taken against a person subject to disciplinary action who is a public official due to a disciplinary cause, the person subject to disciplinary action is at the discretion of the person having authority to take the disciplinary action. However, if the person having authority to take the disciplinary action is recognized to abuse the discretionary power that has been entrusted to the person having authority to take the disciplinary action as the exercise of discretionary power, the disciplinary action against a public official shall be deemed unlawful. The disciplinary action against a public official shall be deemed to be clearly unfair in light of various factors, such as the contents and nature of the offense causing the disciplinary action, the administrative purpose that the person intends to achieve through the disciplinary action, the criteria for the determination of disciplinary action, etc. according to the specific case, and the contents of the disciplinary action shall be deemed to be clearly unfair (see Supreme Court Decision 97Nu14637, Nov. 25, 197, etc.). Even if some of several disciplinary grounds are not recognized, if it is sufficient to recognize the validity of the disciplinary action, it shall not be deemed unlawful (see Supreme Court Decision 200Nu14, Nov. 24, 1992).

In light of the above legal principles, if the plaintiff received entertainment or received gifts from the complainant of the case in which he was in charge of the crime of bribery in order to avoid his crime of bribery, as well as where the defendant committed a crime of leaving a true and genuine criminal defendant for the purpose of concealing his crime of bribery, such crime is committed against the duty of good faith and integrity, even if the court below excluded the grounds for disciplinary action not recognized, it is a police officer who violates the duty of good faith and integrity, and it does not constitute an act that causes the public confidence of the police and damages the dignity of the entire police. Further, according to the records, it can be seen that the plaintiff had a record of being subject to heavy disciplinary action for three months on the grounds of receiving money and valuables similar to the grounds of the above case. In light of the degree of the above misconduct committed by the plaintiff (in particular, since it was without merit) and the above disciplinary power, the plaintiff's dismissal or dismissal of the above bribe was considerably unfavorable to the plaintiff as a police officer, and thus, it seems that the plaintiff's dismissal or dismissal of the above bribe in light of social norms or social norms.

Therefore, the judgment of the court below that revoked the dismissal disposition of this case as it deviates from and abused discretion, and it is erroneous in the misapprehension of legal principles as to the limit of discretion of disciplinary action, which affected the conclusion of the judgment, and the grounds of appeal pointing this out are with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)