2013Du5722 Demanding revocation of disciplinary action

A person shall be appointed.

The superintendent of education of Seoul Metropolitan Government

Seoul High Court Decision 2012Nu15748 Decided February 1, 2013

June 13, 2013

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

The grounds of appeal are examined.

1. Examining the grounds of appeal to the effect that the Plaintiff was erroneous in violation of the rules of evidence in light of the relevant legal principles and records, the court below is justified in finding it difficult to recognize the grounds of appeal that the Plaintiff received a bribe from B on the grounds of its stated reasoning. In so doing, the court below did not err by misapprehending the facts against the rules of evidence as alleged in the grounds of appeal.

2. As to the ground of appeal on the purport that the court erred by misapprehending the legal principles on deviation and abuse of discretionary power

A. The lower court determined that the instant disposition was an abuse of discretionary authority on the grounds that the grounds that C received KRW 1,00,000 from C as a solicitation for a school travel contract was not reasonable under the generally accepted social norms. The public official’s disciplinary action, when a disciplinary action is taken due to grounds for disciplinary action, shall be held at the discretion of the person with authority to take disciplinary action, and it shall be deemed unlawful only when the disciplinary action upon which the person with authority to take disciplinary action exercises discretionary authority considerably lacks validity under the generally accepted social norms and is deemed to abuse the discretionary power. In order to deem that a disciplinary action against a public official has considerably lost validity under the socially accepted social norms, it shall be deemed that the content and nature of the relevant disciplinary action may be objectively and clearly unfair when comprehensively taking into account various factors such as the content and nature of the misconduct causing the disciplinary action, administrative purpose to be achieved by the disciplinary action, and the criteria for the determination of disciplinary action, and if it is sufficient to recognize the validity of the relevant disciplinary action even if some of the various grounds for disciplinary action are not recognized, it shall not be deemed unlawful (see, 26, etc.).

Examining the record in light of such legal principles, the illegality that the Plaintiff, the principal of an elementary school, received KRW 1 million in return for an illegal solicitation regarding the performance of his/her duties is a public educational official whose morality and integrity are very serious, even if the lower court excludes grounds for disciplinary action, it constitutes a serious violation of the public educational officials’ duty of good faith, duty of integrity, and duty to maintain dignity, and thus, constitutes a case where the degree of misconduct is not easy. Even when considering the overall circumstances indicated in the record, the instant disposition in January 1, 200, which did not violate the relevant standards for disciplinary action, was excessively harsh to the Plaintiff to the extent that it is considerably unreasonable under the social norms, and thus, is difficult to be deemed an illegal disposition.

Therefore, the judgment of the court below ordering the revocation of the disposition of this case as it is unlawful since the disposition of this case deviates from and abused discretionary power, which affected the conclusion of the judgment by misapprehending the legal principles as to the limit of discretion of disciplinary action. The ground of appeal assigning this error is with merit

3. Conclusion

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 So-young

Justices Shin Young-young

Justices Lee Sang-hoon

Justices Kim Yong-deok