(영문) 서울고등법원 2013.12.18. 선고 2013누18911 판결

The judgment of the court of first instance is revoked. The defendant's disciplinary action for one month of suspension from office against the plaintiff on May 18, 201 shall be revoked.

Reasons

1. The defendant's disposition

On May 18, 201, the defendant issued a one-month disciplinary measure (hereinafter referred to as the "disposition in this case") on the ground that "the plaintiff who was in office as the principal of Seoul Elementary School (hereinafter referred to as "B elementary school") was against Article 56 (Duty of Good Faith), Article 61 (Duty of Integrity), Article 63 (Duty of Integrity) of the State Public Officials Act, and Article 14 (Restrictions on Receiving Money and Valuables) of the Code of Conduct for Public Officials of the Seoul Office of Education."

① On August 2008, the Plaintiff received KRW 1,00,000 as a solicitation for a contract for accommodation (hereinafter referred to as “the first disciplinary ground”) from the representative director of the E Co., Ltd. (hereinafter referred to as “E”) in early June 2009 to the F of the representative director of the E Co., Ltd. (hereinafter referred to as “E”) for the contract for the carriage of the vehicle for student exercise (hereinafter referred to as “the second disciplinary ground”).

[Reasons for Recognition] No. 1, Gap evidence No. 1, Eul evidence No. 1 (which includes a serial number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Whether grounds for disciplinary action exist

1) Plaintiff’s assertion

Since the Plaintiff did not receive money or goods from D and F, there is no reason for the disciplinary action.

2) Facts of recognition

A) D Statements to investigation agencies related to the first disciplinary ground

D Around 14:00 on August 28, 2008, between 16:00 and 16:00, Do himself requested the Plaintiff to use his accommodation at the B elementary school room in the year 2009 at the Plaintiff’s school, and sent a bag containing KRW 1,00,000,000 as well as the promotional materials for racing products, and confirmed that he was mistakenly aware of the last school travel schedule, and received money from the Plaintiff during November 2008 from December 2008. In 2007, he paid a honorarium for the event from November 2007 to March 208, 208, he paid a honorarium for the promotion of the event in advance. If a contract has not been performed after giving a honorarium, he collected the honorarium for the first 10,000,000 won, 10,000 won, 30,000 won, 10,000 won, 30,000 won.

The principal of the school did not receive a honorarium, or because it is likely that D could not memory that D himself/herself has provided a honorarium, he/she entered the details of the honorarium in a pocketbook or a pen, etc., and arranged it from the racing, "Grauri" (hereinafter referred to as the "book") in 2007.

B) F statement to the investigation agency involved in the second disciplinary action

F around 13:00 on February 13, 200, at the Seocho school principal, F himself set the amount of KRW 8,70,00 as the relevant honorariums for the vehicle transport contract for student event [the Nowon-gu (No. 16, 2009), the number of vehicles, and the contract amount, from April 20, 2009 to April 22, 2009)] to the Plaintiff. The honorariums set the amount of KRW 20,00 to KRW 30,00 per bus. Although there was no book on the offering of a bribe, the amount of the recompenses would come out if 30,000 won is calculated in the vehicle delivery book. For this reason, the principal did not accurately calculate the vehicle number, the number of vehicles, and the contract amount.

C) Judgment of innocence on the principals charged with receiving money and valuables

The Seoul Central District Court (2010Gohap1605, etc.) rendered a judgment of innocence on February 9, 2012 to all principals charged with receiving money and valuables from F and F, and the Seoul High Court (2012No689) dismissed the prosecutor’s appeal on August 24, 2012 (However, it was found that some of the facts charged against D provided a bribe to some of the principals of elementary schools) and the judgment became final and conclusive as they are. The reasons for innocence of F, etc. are as follows.

(a) there is no objective evidence, such as financial material to support the statement that F provided money to the principal (this is compared to what D entered the facts of offering a bribe in the account book).

(b)F statements that some of the principals have refused or attempted to cease to engage in money, but that they cannot memory who they are the principals.

In the initial stage of the police investigation, “F” did not recognize the fact of offering of a bribe at the police investigation, and began to recognize the fact of offering of a bribe at the time of the third suspect interrogation. At the fifth suspect interrogation time, the police officer stated the fact of offering based on the offering of a bribe list. In this case, “F” reported the number of vehicles on E’s dispatch of the vehicle, the details of one’s passbook, the number of the bus used in each school, and the amount of money. However, it is not easy to prepare the contents of the offering of a bribe exceeding 160 times in relation to the event of a school exceeding 80 times in four years, solely on the basis of the vehicle log, the log of the vehicle, and the details of passbook.

ⓓ F도 "나의 금융거래내역을 보면 언제, 어떠한 통장에서 찾은 현금 얼마를 언제, 어떤 교장에게 얼마를 전달했는지 알 수 있는 것은 아니다. 제가 하루 이틀 전이라면 기억을 하겠지만 몇 년씩이나 지난 일을 어떻게 기억하겠습니까. 그렇다고 따로 돈을 주었던 장부가 있는 것도 아니고, 사실 요즘은 차라리 '장부라도 만들어 놨었더라면 조사받기가 훨씬 편하고 서로 불편한 대질조사를 안 해도 되었을 텐데'라는 생각조차 한다"라고 진술하였다.

D) F’s legal statement and status of operation of E

F stated that “F has been engaged in a transaction only once” on the trial date of criminal case, and that “I will continue to use E” was the principal of the school who stated that “I will use E continuously in the future.” However, I stated that “I have a cash of at least 20 million won at all times.”

And E was an enterprise that has excellent facilities compared to other enterprises in Seoul in 2006 to the extent that it will be selected as an excellent enterprise in Seoul in Seoul in 2006, and the level of water in the industry was disputed.F after the withdrawal of E, its family operates E.

[Reasons for Recognition] Class A: Evidence Nos. 3, 4, 5, 11, 12, 13, 18, 20, 21, and 6; the purport of the whole pleadings

3) Determination

(A) the existence of the first disciplinary ground

In full view of the following circumstances and facts revealed by the above recognition basis, the grounds for disciplinary action against the Plaintiff, which the Plaintiff received KRW 1 million from D as a solicitation for a school travel contract, can be recognized.

From the end of 2007, D's statement that 1 million won was given around August 2008 under the pretext of solicitation for accommodation contracts in 2009 is reasonable since D's reward was considered to have been paid in advance before entering into accommodation contracts.

In the event that there is a book suitable for the statement that the plaintiff provided money or goods to the plaintiff, and the family court's office for school travel in 2009 changed in the amount of money or goods returned, the court stated the following progress in detail.

B. C.C. is hard to find out special circumstances where the Plaintiff would be able to be able to influent or imitated (in particular, the Plaintiff did not use C.S. on the school trip in 2009 but used it later in the following year), and D’s statement is subject to criminal punishment against the Plaintiff.

㉣ D가 원고 주장에 들어맞는 확인서를 작성하였으나, 이는 수사 막바지 단계 또는 원고에 대한 징계과정에서 작성된 것으로서 원고를 구제해 주기 위하여 허위로 작성되었을 가능성이 충분히 있다. 그런데다가 D도 피고 소속 담당감사관에게 "일부 학교장들에게 작성·교부한 확인서 내용이 허위이고, 수사기관에서 한 진술이 사실이다"는 취지의 확인서를 작성·제출한 적이 있다.

Compared to this, it is sufficiently possible for us to go all to a motor vehicle on the same day on the Dobong-gu, Gwangjin-gu, and Nowon-gu on the same day, and even if part of D statements made to an investigation agency is different from the facts, it seems due

As seen above, D was convicted of some of the facts charged that a bribe was given to the principal in a related criminal case.

(B) the existence of the grounds for disciplinary action

In light of the following circumstances revealed by the evidence publicly admitted as evidence, the evidence submitted alone is insufficient to recognize the grounds for disciplinary action that the Plaintiff received a bribe from F.

The Plaintiff had no opportunity to consider the credibility of F’s statement on the ground that the amount of bribe received from F was less than the amount of bribe, and there was no criminal examination with F. The F’s statement made at the police investigation stage is merely a unilateral statement, and there was no financial transaction supporting the statement, and only the F’s statement made during the investigation process was prepared and stated accordingly.

The Republic of Korea: (a) denied the fact of the offering of a bribe to the principal at the time of the third interrogation of the bribe; (b) the police submitted the said statement at the time of the third interrogation of the bribe; and (c) subsequently, it was found that the date of the offering of a bribe was different from the facts due to the absence of the other party’s on-site evidence, etc., the date of the offering of a bribe was changed to the first police officer and the middle police officer; and (d) as F family members operate E, there is a possibility that the first statement of the offering of a bribe itself prepared by F was prepared according to the interests of E (F statement is sufficient to recognize the fact that a large number of the principals of the schools located in Seoul at a certain time, but it is insufficient

On June 2009, it seems that it is not easy for F to take bribe to the Plaintiff by visiting the second school due to the discretionary suspension of the second school, the training of the principal, and the restriction on the access to the school due to the new fluor, etc. in the early police officer of the Republic of Korea in June 2009.

㉣ 위에서 본 바와 같이 관련 형사사건에서 F과 그로부터 뇌물을 공여받았다는 이유로 기소된 교장들은 D의 경우와 달리 전부 무죄 확정판결을 받았다.

C) Sub-decision

Therefore, even though the ground for the first disciplinary action is recognized, the ground for the second disciplinary action is not recognized. Therefore, this part of the plaintiff's assertion is justified within the above scope of recognition, and the remainder is without merit

(b)the deviation from and abuse of disciplinary discretion;

1) Plaintiff’s assertion

Considering the Plaintiff’s 40 years of school life, etc., the instant disposition was unlawful as it was excessively harsh to the Plaintiff, thereby deviating from and abusing discretion.

2) Determination

In a case where a disciplinary measure is taken against a public official due to the grounds for disciplinary action, it is illegal only when the competent authority takes the discretion of the person having authority to take the disciplinary measure, and it is recognized that a disciplinary measure taken by the person having authority to take the disciplinary measure has abused discretionary power because it considerably lacks validity in light of social norms. To deem that a disciplinary measure against a public official has considerably lost validity in light of social norms, the content and nature of the disciplinary measure should be recognized to be objectively unreasonable when comprehensively taking into account various factors, such as the content and nature of the relevant misconduct caused by the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, the criteria for the determination of disciplinary measures, etc. Even if some of the various grounds for disciplinary actions are not recognized, if it is sufficient to recognize the validity of the relevant disciplinary measure only with some of the grounds for disciplinary actions recognized, such disciplinary action cannot be deemed unlawful (see, e.g., Supreme Court Decision 20

Examining the aforementioned facts in light of the aforementioned legal principles, the first disciplinary ground that the Plaintiff, the principal of an elementary school, received KRW 1 million in exchange for an illegal solicitation in the course of performing his/her duties, is a public educational official with very serious moral and integrity. In light of the fact that the Plaintiff is a public educational official with very heavy moral and integrity, the Plaintiff’s act that violates the public educational official’s duty of good faith, duty of integrity, and duty to maintain dignity, and in itself does not mean the degree of misconduct. The instant disposition in 1 month of suspension from office, which does not violate the standards for a disciplinary decision, goes beyond the scope of discretion, and is difficult to be deemed an illegal disposition. Therefore, the Plaintiff’s assertion in this part is without merit.

3. Conclusion

The plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion. The plaintiff's appeal is dismissed as it is without merit.