(영문) 대구지방법원 2014.3.21.선고 2013구합2459 판결

1. The Defendant’s disposition of imposing disciplinary surcharge against the Plaintiff on March 21, 2013 is revoked. 2. The remainder of the Plaintiff’s claim is dismissed.

3. The costs of lawsuit shall be borne by each person;

Purport of claim

Disposition 1 and the defendant's dismissal disposition against the plaintiff on March 21, 2013 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff was newly appointed as a middle or high school teacher on March 1, 1988 and served as a middle or high school teacher on March 1, 2005 to February 29, 2012. B. The Defendant dismissed the Plaintiff on the ground that the Plaintiff’s act violated Articles 56 and 61 of the State Public Officials Act on March 21, 2013, based on the resolution of the General Disciplinary Committee of the Office of Education on Disciplinary Action (hereinafter referred to as “the dismissal disposition in this case”), and imposed disciplinary surcharge (hereinafter referred to as 45,680,000 won) x 2) on the ground that the Plaintiff’s act constituted a disciplinary cause under Article 78(1) of the State Public Officials Act.

(A) Although the head of the sports division and the overall sports affairs of the Busan District Prosecutors' Office (Case No. 3 omitted), the Plaintiff requested to create a separate expense from the school when she completed his her son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's 6.7 billion won's son's Professor's 1.7.

C. On April 19, 2013, the Plaintiff appealed and filed a petition for review on the appeal on April 19, 2013. On June 24, 2013, the Appeal Commission for Teachers dismissed the claim for the revocation of the instant disposition of dismissal, and rendered a decision to change the initial disposition of disciplinary surcharge (=45,680,000 won x 1 times) to the disposition of imposing disciplinary surcharge (hereinafter “instant disposition of disciplinary surcharge”).

[Ground of recognition] The fact that there is no dispute, Gap evidence 1 through 3, 7, 9, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Claim on the instant disciplinary surcharge disposition

A) Of the instant disciplinary charges, KRW 25 million is about the amount of defraudation of a crime punished for fraud. According to Article 78-2(1) of the State Public Officials Act, the defrauded cannot be subject to the imposition of disciplinary charges.

B) The Plaintiff was sentenced to a fine of KRW 4 million as a crime of fraud and a fine of KRW 2 million as a crime of occupational embezzlement. In particular, the Plaintiff paid KRW 60 million out of the amount of damage caused by occupational embezzlement. According to Article 78-2(2) of the State Public Officials Act and Article 17-2(2) and (3) of the Decree on Disciplinary Punishment on Public Officials, the instant disciplinary surcharge should be excessively exempted or reduced.

2) The assertion on the dismissal of the instant case

On September 1, 2007, Nonparty 2, the principal of the Seocho High School, instructed the Plaintiff to raise illegal funds immediately after he was appointed as the principal of the school, and the Plaintiff could not actually refuse the direction of Nonparty 2, who is the personnel management authority. The Plaintiff merely raised and executed the funds and reported once or two times a month in accordance with Nonparty 2’s instruction, and there was no voluntary creation of the funds or private use. Nonparty 2, the principal offender, already retired and did not receive any disciplinary action or disposition of imposition. The Plaintiff recognized the act of fraud and occupational embezzlement from the beginning and actively cooperate with the investigation, and tried to divide his reflect nature in order to compensate the Plaintiff for damages caused by occupational embezzlement. The Plaintiff’s dismissal on August 20, 2013, which is the maximum amount of fine for negligence for more than KRW 13,1060,000,000,000,0000,000,0000 won and more than the maximum amount of fine for negligence for 261,000.

(b) Related statutes;

It is as shown in the attached Table related statutes.

1) On February 17, 2012, the Plaintiff, Nonparty 2, Nonparty 1, and Nonparty 3, who was charged with the following criminal facts, was sentenced to a fine of KRW 4 million, KRW 5 million, KRW 5 million, KRW 4 million for Nonparty 1, and KRW 6 million for Nonparty 3, respectively. Although the Plaintiff, Nonparty 2, and Nonparty 1 appealed, on June 14, 2012, the lower judgment became final and conclusive thereafter.

Criminal facts

① The plaintiff, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 1, the non-party 2 supplied 5, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 2, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 1, the above 2, the non-party 3, the defendant.

2) On December 4, 2012, the Plaintiff and Nonparty 2 were prosecuted for the following criminal facts, and the Plaintiff was sentenced to a fine of KRW 7 million, imprisonment with labor for Nonparty 2, imprisonment with labor for one year, and imprisonment with labor for two years. On August 30, 2013, the Plaintiff and Nonparty 2 appealed and reversed the judgment of the first instance on August 30, 2013, and sentenced the Plaintiff to a fine of KRW 2 million and a fine of KRW 7 million, respectively, and the said judgment became final and conclusive around that time.

Around September 10, 2007, the criminal facts ① the Plaintiff and Nonparty 2’s joint criminal conduct (occupational embezzlement) Nonparty 2’s joint criminal conduct (occupational embezzlement) directed the Plaintiff to prepare for travel expenses even if the Plaintiff often 10 to 200,000 won in an envelope. Accordingly, the Plaintiff is able to allocate the budget more to the department that uses equipment such as the old and walk, and prepare funds for the purchase of equipment for the purpose of purchasing equipment, and Nonparty 2 said that he said she would do so.

By way, Nonparty 2 thought that he would raise funds from the school budget of Yeng Middle High School managed by the Republic of Korea for expenses for activities, such as entertainment expenses.In this regard, the Plaintiff instructed Nonparty 4 and Nonparty 5 in charge of planning, “Non-party 5, as the principal of students need to pay money, and Non-party 4 made approval by establishing a public book that he purchased red ginseng, and Non-party 4 instructed Non-party 5 to use the money from 10 to 30.5 to 10,000 to 20,000 won of the above school’s financial credit card, which was operated by she, even though the non-party 4 did not purchase red ginseng X-ray, the fact that it was opened at Maeb operated by she, but did not use the above funds from 2,50,000 won to 30,000 won of the above school’s financial credit card, and did not use the funds from 20,000 won to 20,000 won of the above school credit card.

3) Following the amendment by Act No. 10148 of March 22, 2010, Article 78-2 of the State Public Officials Act was newly established, and Articles 3 through 78-2 of the Addenda provide that the same provision shall apply to cases where the first ground for disciplinary action occurred after the enforcement of the above amendment Act. Since March 22, 2010, the Plaintiff acquired the amount by fraud in relation to the grounds for disciplinary action after the enforcement date of the above amendment, KRW 25 million in total, and ② the amount embezzled in relation to the grounds for disciplinary action is KRW 2068 million in total.

4) Meanwhile, on August 20, 2013, the Plaintiff deposited KRW 60 million as damages for the recovery of damage caused by occupational embezzlement, and Nonparty 2 deposited KRW 71,060,000 as of August 21, 2013.

5) On October 1, 2013, the Plaintiff filed an application for the instant disciplinary surcharge reduction and exemption on the ground that the part of KRW 32 million relating to the Plaintiff’s fraud was not subject to disciplinary surcharge, but deposited KRW 60 million in relation to the crime of occupational embezzlement. Accordingly, on December 19, 2013, the ordinary disciplinary committee of the Office of Education of the Gyeongbuk-do was held on December 19, 2013, but as a result of the instant deliberation, it was decided to postpone the request for the disciplinary surcharge reduction and exemption after the rendering of the instant judgment.

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1, 2, 5, 10, 11, 12, Eul evidence Nos. 2 and 4 (including each number), the purport of the whole pleadings

D. Determination

1) Determination on the instant disciplinary surcharge disposition

Article 78-2 of the State Public Officials Act limits the grounds for imposing disciplinary surcharge to "the receipt of money, goods, and entertainment, the amount of money, or entertainment received in addition to the relevant disciplinary action if the grounds for disciplinary action are the embezzlement or misappropriation of public funds." Article 78-2 of the State Public Officials Act limits the grounds for imposing disciplinary surcharge to "the receipt of money, goods, and entertainment" and "the embezzlement or misappropriation of public funds." Article 17-2 (1) of the Decree on Disciplinary Action of Public Officials provides that when the Disciplinary Committee is requested to impose disciplinary surcharge pursuant to Article 78-2 (1) of the Act, the Disciplinary Committee may decide to impose disciplinary surcharge within five times the amount of money, goods, and entertainment received, the amount of public funds embezzled or misappropriated, or the amount of public funds embezzled or misappropriated.

The imposition of surcharges for disciplinary action is a so-called "influent administrative disposition that deprives of the rights and interests of, or imposes sanctions on, the people, and requires legal basis in light of the constitutional request for the protection of property rights of the people and the principle of administration by the rule of law. In addition, a strict interpretation is required in the interpretation of the relevant provisions, and an analogical interpretation or expanded interpretation is not permissible in principle in the direction that expands the scope of the infringement (see, e.g., Supreme Court Decision 2003Du9145, Apr. 27, 2004)

The prior meaning of "misappropriation" in the "Embezzlement and misappropriation of public money, which is the reason for the imposition of disciplinary surcharge under the above provision, is "a return" or "a return" means a return to what is written in South or in any other place, or a division, section, clause (a), (b), (c), or Section (c) of the expenditure budget, which differs from each other. In the event a public official commits a crime against public funds, it cannot be denied that there is a need to recover the amount of damage. However, in light of the above legal principles and the above, it is reasonable to interpret that the meaning of the above utilization is a case where the public official uses all the public funds for any purpose other than its original purpose regardless of the means of embezzlement, theft, taking advantage of the meaning of the above utilization, or taking advantage of the scope of infringement, since it is a broad interpretation or expansion of the scope of infringement."

In the case of this case, the plaintiff was subject to disciplinary action due to the crime of fraud that acquired public funds (Disciplinary Reason) and the crime of embezzlement that embezzled public funds (Disciplinary Reason ②), after March 22, 2010, when the plaintiff acquired public funds, (1) the amount acquired by the plaintiff in relation to the disciplinary cause is KRW 25 million, and (2) the amount embezzled in relation to the disciplinary cause is KRW 2068,000,000, and (2) the amount embezzled in relation to the disciplinary cause is about KRW 2068,00,000, and even when the defendant acquired public funds, the fact that the disciplinary punishment of this case was imposed on the premise that it is subject to the imposition of disciplinary surcharge. In light of the above provisions and legal principles as seen earlier, it is unlawful to impose the disciplinary surcharge of this case on the premise that the defendant also acquired public funds constitutes "Embezzlement and misappropriation of public funds."

Therefore, without examining the remaining arguments of the plaintiff, the plaintiff's assertion about the disciplinary surcharge of this case is with merit.

2) Judgment on the dismissal of this case

In the case of disciplinary action against a person subject to disciplinary action who is a public official, the disciplinary authority shall take the discretion of the person subject to disciplinary action. However, it is recognized that the disciplinary action taken by the person subject to disciplinary action as the exercise of discretionary authority has abused the discretionary authority because it has considerably lost validity under social norms.

In order to deem that a disciplinary action against a public official has considerably lost validity under the social norms, the disposition should be unlawful only in cases where it is deemed that the content and nature of the disciplinary action is clearly unreasonable in light of the following factors: (a) the content and nature of the offense causing the disciplinary action; (b) the administrative purpose that the disciplinary action intends to achieve; and (c) the criteria for the determination of the disciplinary action (see, e.g., Supreme Court Decision 2006Du16786, Jun. 23, 2009).

In light of the following circumstances revealed by the above facts of recognition and the evidence seen earlier, even if considering all the circumstances alleged by the Plaintiff, the dismissal disposition of this case violates the principle of proportionality by significantly losing validity under the social norms, or is not unlawful by abusing or abusing discretion. Therefore, the Plaintiff’s above assertion is without merit.

The sum of the funds embezzled by the Plaintiff in collusion with Nonparty 2 reaches KRW 130,00,00 and the amount acquired by deceit reach KRW 32,00,00,000, and the crime period created and used the funds is also very serious for a long period of up to four years.

Although the Plaintiff received the order from Nonparty 2, the Plaintiff is very heavy in committing the instant crime, such as raising and managing funds by directing and supervising the sports division as a chief of the sports division as a whole.

The Plaintiff was using unlawful means, such as falsely tending to purchase non-transferable articles, or returning money after purchasing unnecessary articles. Of the non-funds created by the Plaintiff, the Plaintiff did not have any personal benefit except KRW 10 million paid to the teachers with the cost of overseas training abroad. However, it is reasonable to deem that the use of funds prepared by the Plaintiff is practically beneficial to the Plaintiff, such as encouragement funds, activity expenses, bonus, etc. for the Plaintiff.

(2) A teacher teaching and guiding students shall always endeavor to improve the character and quality to be a symbol, to research the principles of tobacco and education and to educate students, and in this respect, he/she requires higher morality and ethics than other general workers.

(1) The duty to maintain more strict dignity of teachers is required in that it is likely to undermine the people's trust in the whole society as well as himself/herself.

According to the disciplinary standards set forth in Article 2 [Attachment Table] of the Rules on Disciplinary Measures, etc. for Public Educational Officials, the grounds for disciplinary action in this case provide that the dismissal can be made even because the degree of misconduct is serious and intentional.

3) Sub-determination

Therefore, the disposition of imposing the surcharge of this case is unlawful, and the dismissal of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.