2019du48684 Revocation of revocation of dismissal

Plaintiff:

Attorney Kim Hm-soo et al., Counsel for the defendant-appellant

Superintendent of Education of Gwangju Metropolitan City

Attorney Lee Jae-chul, Counsel for the plaintiff-appellant

Gwangju High Court Decision 2019Nu10176 Decided July 11, 2019

December 24, 2019

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

The grounds of appeal are examined.

1. Article 51 (1) of the Public Educational Officials Act provides that "the head of an educational institution shall, without delay, request the disciplinary committee having jurisdiction over the relevant disciplinary case to make a disciplinary resolution if he/she deems that the public educational official under his/her control falls under any disciplinary cause under any subparagraph of Article 78 (1) of the State Public Officials Act," and Article 15 of the former Decree on Disciplinary Action against Public Educational Officials (amended by Presidential Decree No. 29560, Feb. 26, 2019; hereinafter the same shall apply) provides that "in making a decision on a disciplinary case, the disciplinary committee shall take into account the behavior, performance, service performance, achievements, details of the request for disciplinary punishment, and other circumstances of a disciplinary suspect."

Meanwhile, Article 1 of the former Rules on Disciplinary Measures, etc. of Public Educational Officials (amended by Ordinance of the Ministry of Education No. 178 of March 18, 2019; hereinafter referred to as the "former Rules on Disciplinary Measures") provides that "the purpose of these Rules is to promote equity in disciplinary measures by prescribing the criteria for disciplinary measures and grounds for mitigation, etc. of public educational officials." Article 2 (1) provides that "The Public Educational Officials Disciplinary Committee shall decide disciplinary measures in accordance with the criteria for disciplinary measures in accordance with the annexed Table, in consideration of the type of misconduct, degree of misconduct, degree of misconduct, degree of negligence, degree of performance, public service, degree of penance, and other circumstances of the suspect, and the degree of "in the case of dismissal or dismissal of a sexual crime, the degree of misconduct or gross negligence" shall be defined as "in the case of dismissal or dismissal of a sexual crime, the degree of "in the case of gross negligence" as "in the case of dismissal or dismissal of a sexual crime."

2. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

A. On March 1, 1992, the Plaintiff was appointed as an elementary school teacher, and on September 1, 2016, the Plaintiff promoted to an assistant principal and served at the Gwangju ○ Elementary School.

B. On September 9, 2017: around 15, the Plaintiff committed an indecent act by taking part in the victim’s chest part in the lower seat of the Non-Party (the Non-Party 67 years of age and women) (hereinafter “the instant misconduct”) who was seated in the driver’s seat by hand (hereinafter “instant misconduct”).

C. On October 31, 2017, the Plaintiff was subject to a disposition of suspension of indictment on the condition of the entrustment of probation guidance at the Gwangju District Prosecutors’ Office.

D. On November 27, 2017, the General Disciplinary Committee of Gwangju Metropolitan City decided to dismiss the Plaintiff pursuant to Articles 63 and 78 of the State Public Officials Act, Article 10 of the former Decree on Disciplinary Action against Public Officials, and Article 2(1) of the former Rules on Disciplinary Punishment.

E. On December 11, 2017, the Defendant took disciplinary action against the Plaintiff according to the above resolution of the General Disciplinary Committee of Gwangju Metropolitan City (hereinafter “instant disposition”).

3. The lower court, on the following grounds, determined that the Defendant’s disposition of this case, which caused the instant misconduct, was unlawful as it deviates from and abused discretion.

A. Article 2(1) of the former Rules on Disciplinary Action merely prescribes the internal rules of administrative agency’s affairs, and does not externally bind a court or the general public. Furthermore, pursuant to Article 2(1) of the Rules on Disciplinary Action, a person having authority to take disciplinary action may take a minor disciplinary action more than the standards for disciplinary action determined by the Rules on Disciplinary Action, taking into account the person having disciplinary action’s ordinary behaviors, performance, merit, degree of penance, and other circumstances.

B. In particular, in the case of indecent acts such as the instant misconduct, the existence or degree of the misconduct may vary considerably depending on the victim’s intent, gender, age, relationship between the offender and the victim, background leading to the act, specific form of act, objective situation in the surrounding environment and the sexual morality concept of the times, etc. Therefore, the person having authority over disciplinary action as the person having authority should also consider the same in the case of disciplinary action.

C. The instant misconduct appears to have committed a sudden and contingent act in the state where the Plaintiff was under the influence of alcohol and significantly lacking decision-making capacity. In light of the fact that the Plaintiff, from the back seat of the taxi, the part on the right side side and the right chest part of the victim’s clothes located in the driver’s seat, and the victim immediately stops the taxi and demanded the Plaintiff to leave the taxi, it seems that the relevant event or indecent act was very heavy.

D. On September 10, 2017, the day following the day when the Plaintiff committed the instant misconduct, the victim stated to the purport that “I would like to report the Plaintiff’s indecent act while voluntarily attending the police and making statements about the details of the Plaintiff’s report,” rather than demanding the Plaintiff to pay the fee and to leave the taxi, but the Plaintiff would have been able to get the Plaintiff to leave the taxi with the help of the police who did not comply with the request. However, immediately after the aforementioned police statement, the Plaintiff and the Plaintiff expressed their intention to want to punish the Plaintiff without wanting to be punished against the Plaintiff. In light of the fact that the victim is a female of 67 years of age with abundant social experience, and the details and details of the said statement made by the victim, it seems that the victim did not have any significant mental shock or sexual humiliation.

E. Although the Plaintiff was under the influence of alcohol and did not memory at the time of the instant misconduct, the Plaintiff appears to have committed all of its responsibility after the commission of the instant misconduct was revealed. The Plaintiff faithfully served as a teacher for about 25 years without being subject to any particular disciplinary action, and was given official commendation, including presidential commendation. Moreover, the Plaintiff’s various club teachers submitted a written application and sought a heavy disciplinary action against the Plaintiff.

F. On November 27, 2017, the Gwangju Metropolitan City General Disciplinary Committee on Public Educational Officials expressed the opinion of the majority of the members present at the time of the resolution of disciplinary action against the plaintiff on November 27, 2017, but the majority of the opinions that it is possible to punish a lower level of disciplinary action than the dismissal at the meeting at that time. Nevertheless, the final resolution of the level of disciplinary action as the "retirement" seems to have been difficult for the plaintiff to bear a burden beyond the original disciplinary standard under the circumstances where the plaintiff was suspended from indictment for the instant misconduct.

4. However, the lower court’s determination is difficult to accept for the following reasons.

A. Whether a disciplinary measure should be taken 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 action. Therefore, the disciplinary measure taken by the person having authority to take the disciplinary action is unlawful only when it is acknowledged that the person having authority to take the disciplinary action has abused the discretion assigned to the person having authority to take the disciplinary action, as the person has

Considering the specific cases as to whether a disciplinary action against a public official has manifestly lost validity under social norms, the details and nature of the disciplinary action should be determined in full view of various factors, such as characteristics of duties, the contents and nature of the misconduct causing the disciplinary action, the administrative purpose intending to achieve a disciplinary action, and the criteria for a disciplinary action. In cases where the person having an authority to take an action determines the criteria for an internal disciplinary action and takes a disciplinary action accordingly, the relevant disciplinary action cannot be deemed to have remarkably lost validity under social norms unless there are special circumstances, such as that the criteria for a disciplinary action determined is unreasonable (see, e.g., Supreme Court Decisions 2008Du6387, Jun. 26, 2008; 201Du13767, Nov. 10, 2011).

B. Article 31(4) of the Constitution provides that the autonomy, expertise, etc. of education shall be guaranteed under the conditions as prescribed by the Act. Since expertise of teachers’ duties is a social and ethical characteristic that has high level of autonomy and social responsibility in performing their social roles like other professional doctors, attorneys-at-law or sexual workers, teachers shall have a high level of occupational ethics in performing their duties. Article 31(6) of the Constitution provides that fundamental matters concerning teachers’ status shall be prescribed by the Act. As such, providing for basic matters concerning “the status of teachers, including teachers’ remuneration, working conditions, etc.” to be prescribed by the Act is to guarantee more effective basic rights to undergo education for the people provided by Article 31(1) of the Constitution (see Supreme Court Decisions 2017Du34162, Mar. 29, 2018; 89Hun-Ga, Constitutional Court Decision 106, Jul. 22, 199).

In addition, Article 63 of the State Public Officials Act, which applies to teachers who are public educational officials, shall not engage in any conduct detrimental to their dignity, regardless of whether it is a public official’s official’s duty. In full view of the above, it is necessary to improve the character and quality of teachers, to research academic support and educational principles and methods, and to serve in the education of students, and to maintain more strict dignity than those of ordinary workers. In addition, it is necessary to maintain the dignity in that teachers need to be more strict duty than those of ordinary workers, and that the act of injury to teachers is likely to undermine the people’s trust in the whole society as well as teachers. This refers to 10 man-mades who are not infinite with the duty of education for the people. It is necessary to determine that the act of 108, which is a teacher’s duty to maintain dignity, requires more strict duty to maintain the dignity of teachers than those of 107, which are 60,000 won general social norms.

C. According to the disciplinary criteria under Article 2(1) [Attachment Table] of the former Rules on Disciplinary Action, the disciplinary action in a case where there is a serious and intentional violation of the duty to maintain dignity due to sexual assault is taken into account as " removal", and the disciplinary action in a case where the degree of misconduct is weak and transitional."

However, the instant misconduct is deemed to be a case where the Plaintiff committed an indecent act by force because the victim's chest, etc. was alone committed by the Plaintiff while driving the taxi. Therefore, in applying the aforementioned disciplinary criteria as it is, the disciplinary action against the instant misconduct would be derived from the removal "." However, the instant disposition was determined as a "retirement lower than that favorable to the Plaintiff."

In addition, the criteria for disciplinary action determined by the above [Attachment Table] stipulated that "in the case where the degree of misconduct is severe and intentional to the previous sexual violence," "in the case where the degree of misconduct is serious, gross negligence, or where the degree of misconduct is weak and intentional to the extent of misconduct," "B", "in the case where the degree of misconduct is serious and transitional, or where the degree of misconduct is weak and gross negligence is weak," "B", and "in the case where the degree of misconduct is weak and transitional," "in the case where the degree of misconduct is excessive and transitional," "in the case where the criteria for disciplinary action related to the violation of the duty to maintain dignity should be strengthened to improve the morality of public educational officials by strengthening the criteria for disciplinary action related to the violation of the duty to maintain dignity, it seems to have been adjusted upward as applied to this case in order to meet the request of the general public. This is also necessary to strengthen the punishment system for sex offense to the maximum extent possible extent possible, and to strengthen the punishment system for sex offense.

In light of the above, the criteria for disciplinary action under Article 2(1) of the former Rules which was introduced to strengthen the scope of sexual assault committed by a public educational official shall not only require high level of occupational ethics or morality, but also require increased duty to maintain dignity regardless of whether it is inside or outside of his/her duties. In particular, if a teacher commits sexual assault, it is a serious violation of his/her duty to maintain dignity, which is likely to cause serious harm to the public trust of the entire society of teachers as well as teachers, and it is inappropriate to allow the teacher to perform his/her duties as an educator without any disadvantage corresponding to the wrongful act, and it is not reasonable to allow the teacher to perform his/her duties as an educator. When comprehensively considering various factors such as the social situation at the time of the introduction of the standards for disciplinary action and the legal sentiment of the general public for sexual assault crimes, it cannot be concluded that the criteria for

In particular, Article 4(2)4(a) of the former Rule provides that disciplinary action shall not be mitigated in cases of sexual crimes under Article 2 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, with respect to “in the case of at least a “in the case of intentional conduct” as seen earlier, it is difficult to deem that the aforementioned provision lacks objective rationality in the same context, and accordingly, the said provision serves as the criteria for disciplinary action along with Article 2(1) [Attachment] of the former Rule on Disciplinary Action. Therefore, it should not be readily determined that the person having authority over disciplinary action has abused the discretionary power assigned to the person having authority over disciplinary action as to the instant disposition by applying the criteria for disciplinary action under Article 2(1) of the former Rule on Special Cases Concerning the Punishment, etc. of Sexual Crimes.

D. As to the instant misconduct, the instant misconduct committed by the Plaintiff by force by force on the part of the victim, who was on board the victim’s taxi and driving on his taxi at the night. At the time, the victim appears to have suspended the remaining taxi operation and demanded immediately the Plaintiff to immediately leave the taxi due to considerable mental impulse and sexual humiliation. In light of the content and circumstances of the instant misconduct, it is not readily concluded that the case is minor or that the degree of the misconduct is relatively old, on the ground that the victim’s social experience is considerably high or relatively old.

Although the Plaintiff had been aware of the instant misconduct, the Plaintiff had committed the instant misconduct and had a duty to faithfully guide students so that they can grow up as a human being, and to educate them to establish a proper sexual ethics and values, thereby realizing the trust of the Plaintiff itself and the entire teachers’ society. As such, when the Plaintiff, who caused his/her own trust as a teacher, led students to a different from the previous one, and led students to a different from the previous one, it would be difficult to view that the extent of disadvantage that the Plaintiff would suffer from the instant disposition would be more than necessary for the public interest due to the instant disposition, or that the Plaintiff would have significantly lost the objective rationality in light of social norms, compared to the content and degree of the Plaintiff’s duty to maintain dignity, if the Plaintiff, who caused his/her own trust as a teacher, was leading students to a different from the previous one.

E. Nevertheless, the lower court determined that the instant disposition was unlawful as it deviates from and abused the discretion. In so determining, the lower court erred by misapprehending the legal doctrine on deviation and abuse of discretion of disciplinary action, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is

5. 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.

Justices Kim Jae-hyung

Justices Cho Jong-hee

Justices Min Min-young

Justices Lee In-bok and Lee Dong-won