(영문) 대전지방법원 2016.12.8. 선고 2016구합101029 판결

A. On September 26, 2014, Jeju District Prosecutors’ Office: (a) investigated and notified the Defendant of the misconduct regarding public officials of the Ministry of Oceans and Fisheries; (b) among the above notification, the Plaintiff received KRW 1,500,000 from B in cash each of the totaling KRW 1.5 million on August 10, 2013; and (c) on September 7, 2013. Upon receipt of the notification of the above misconduct, the Defendant received from B the Plaintiff the notification of the said misconduct, and determined that the Plaintiff received from B the said notification that he received cash and entertainment by receiving KRW 125,000 from B on August 10, 2013.

B. On April 3, 2015, based on the foregoing findings, the Defendant demanded a disciplinary resolution to impose a minor disciplinary measure and a surcharge twice the disciplinary measure against the Plaintiff on the ground of the violation of the duty of integrity. Accordingly, the Central Disciplinary Committee recognized the misconduct requested on July 10, 2015, and decided to impose a disciplinary measure on the Plaintiff one month of suspension from office and three times the disciplinary measure against the Plaintiff.

C. On July 23, 2015, the Defendant rendered a disposition imposing the Plaintiff one month of suspension from office and three times of disciplinary surcharge (780,000 won) (hereinafter “instant disposition”) according to the resolution of disciplinary action (hereinafter “instant disposition”).

D. The Plaintiff filed an appeal review against the instant disposition, but the appeals review committee dismissed the appeal review on January 20, 2016.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 through 6 (including branch numbers for those with a satisfy number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not receive cash and entertainment from B, and the instant disposition was unlawful due to the mistake of facts. Even if the grounds for partial disposition of household affairs are recognized, the instant disposition constitutes deviation and abuse of discretion due to excessive excessive excess.

B. Determination

In full view of the following circumstances, the Plaintiff’s acceptance of money, valuables, and entertainment from B, and the disposition of this case is not deemed unlawful due to deviation from discretion or abuse of discretion, even if it is acknowledged that the Plaintiff received money, valuables, and entertainment from B, and that the disposition of this case is unlawful.

1) The instant disposition ground was prosecuted on August 10, 2013, August 11, 2013, and September 7, 2013, the Plaintiff received entertainment equivalent to KRW 780,00,00 in total, including golf expenses, meal expenses, and cash, from B while making golf with the official E, F, and G construction business chain H’s representative director B, which is a public official belonging to the Ministry of Oceans and Fisheries, over three times in Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si, Chungcheong-si, Chungcheongnam-si. The instant disposition ground was affirmed on the grounds that the Plaintiff, including the Plaintiff, provided a bribe in relation to the duties of the Ministry of Oceans and Fisheries, and was tried on the criminal trial. The judgment of the court of final appeal became final and conclusive on the grounds that the Plaintiff, including E, F, and I, offered a bribe to public officials of the Ministry of Oceans and Fisheries, including the Plaintiff, and that the judgment of the court of final appeal became final and conclusive on the grounds of appeal No. 2014, the aforementioned judgment of final appeal No. 275.

2) Meanwhile, in the criminal judgment against B, B made a specific and consistent statement about the fact of offering money and valuables from the investigative agency to the public officials belonging to the Ministry of Oceans and Fisheries, including the process of giving money and cash, and in particular, in the criminal judgment against B, the prosecutor presented the following as objective data in the investigation process: (a) the background leading up to the confession statement about the fact of offering money and valuables is natural; and (b) the content of the statement itself is reasonable and objective reasonableness.

3) The Plaintiff recognized the golf in D with B, E, and F, which have membership rights, without being provided money or entertainment from B, and presented the Cash Receipt received using the order of "L" on the ground that he/she himself/herself assumed that he/she had borne golf expenses. However, in the process of prosecutor’s investigation, E, which had undergone golf with the Plaintiff, received money and valuables from B, and in criminal trial, it was recognized that E received money and valuables under the name of 50,000 won from B, which was difficult to receive under the above 1st day of August 11, 2013 and September 7, 2013, since it was difficult for the Plaintiff to receive money and valuables from the Plaintiff to receive money from the Plaintiff under the name of 1st day of the above 3-year golf receipt to the effect that it was difficult for the Plaintiff to receive money from each of the above 500,000 won under his/her own name, due to the lack of the Plaintiff to receive money and valuables from the Plaintiff’s public official in the name of 50-year golf service.

4) Meanwhile, as long as a criminal judgment related thereto has become final and conclusive in an administrative litigation, it cannot be recognized that there is no special circumstance to deem it difficult to employ a criminal judgment (see, e.g., Supreme Court Decision 98Du10424, Nov. 26, 1999). As long as the fact that B offered money and entertainment to the Plaintiff three times in total as the grounds for the instant disposition was recognized in the criminal judgment, and the said judgment became final and conclusive, the said criminal judgment is a significant ground for confluence of the Plaintiff’s acceptance of bribe. Moreover, the statement made by B, including the Plaintiff, is recognized as having a considerable credibility in its content because it is difficult to find any motive for the Plaintiff to make a false statement even when accepting the possibility of being subject to additional criminal punishment due to the crime of offering of bribe.

5) From 208 to 2014, H, which had been operated by the Ministry of Oceans and Fisheries, ordered G construction 16 times from 200 to 2014, and conducted more than half of the G construction ordered by the Ministry of Oceans and Fisheries. The amount of construction was 9 billion won. The Plaintiff, a public official belonging to the Ministry of Oceans and Fisheries, who conducted a completion inspection of the "M" business conducted at H around December 201, as a public official belonging to the Ministry of Oceans and Fisheries, was limited to departments that could be compensated compared to public officials in general service, and there was no reason for the Plaintiff to offer bribe to the Plaintiff. In addition, the Plaintiff, as well as the Plaintiff, was not aware of the fact that it had been offered to the Plaintiff at the expense of the above golf business for a considerable period of time, and there was no reason for the Plaintiff to believe that it had been offered money and valuables to the Plaintiff at the expense of the above 20-year golf business, as well as the fact that it had not been offered to the Plaintiff as a public official at the same time.

6) B’s wife 00,000,000 won, 3.5 million won on August 10, 2013, 5.5 million won on August 11, 2013, and 1 million won on September 7, 2013, and 2000,000 won on the part of the company’s funds were continuously and mechanically prepared through a general business process, and thus, there is considerable credibility. In addition, B instructed 0 to make a cash bag to be delivered to public officials from time to time, and entered this in G, Liber, California, etc. In addition, according to D’s contents related to the instant disposition, B, as written by O, had been in possession of golf as a total of KRW 10,00,000 on August 10, 2013, and KRW 100,000,000,000 on September 7, 2013.

Therefore, it is reasonable to view that the Plaintiff received money, valuables, and entertainment from B with other public officials as well as other public officials, as the grounds for the instant disposition.

7) Furthermore, as to whether the instant disposition is unlawful by deviating from the limits of discretion

However, when a disciplinary action 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 action. However, if the person having authority to take the disciplinary action as an exercise of discretionary authority is deemed to abuse the discretionary power that has been entrusted to the person having authority to take the disciplinary action, it can be deemed unlawful. If a disciplinary action against a public official has considerably lost validity under social norms, it should be determined that the contents of the disciplinary action can be objectively and clearly deemed to be unlawful, in full view of various factors, such as the content and nature of the misconduct causing the disciplinary action, administrative purpose to be achieved by the disciplinary action, criteria for the determination of disciplinary action, etc. (see Supreme Court Decision 98Du6951, Nov. 26, 199).

However, the Plaintiff was provided with money and valuables and entertainment related to golf expenses, etc. several times with the representative of the company that may be able to raise suspicions in connection with his/her duties, directly or indirectly, although he/she is unable to give or receive entertainment in connection with his/her duties. The duty of integrity of public officials is to prevent the act of receiving money and valuables related to his/her duties, thereby protecting the integrity of public officials and the integrity of their duties, and ensure the proper performance of duties. However, according to Article 2 and [Attachment Table 2] of the Regulations on Handling Public Officials’ Cheating, “In cases where a public official receives money and valuables less than one million won or provides them to a public official related to his/her duties, such as entertainment, or a public official related to his/her duties, regardless of unjust disposition, it is difficult to say that the Plaintiff is required to make a concurrent disciplinary and heavy disciplinary resolution in cases of receiving money and valuables, and that the Plaintiff is required to have a disciplinary measure more than that of the public official’s unlawful act of receiving money and valuables than that of the public official.”

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.