(영문) 광주지방법원 2020.6.11. 선고 2019구합15394 판결

A. The Plaintiff was appointed as a public educational official on September 1, 2001, and served as a teacher at the B elementary school from March 1, 2014 to February 28, 2018, and C elementary school from March 1, 2018 to June 10, 2019.

B. On June 11, 2019, following the resolution of the General Disciplinary Committee on Public Educational Officials in Gwangju Metropolitan City, the Defendant dismissed the Plaintiff and imposed a disciplinary measure to add five times (10,216,800 won) of the useful amount as disciplinary charges (hereinafter referred to as “instant disposition”) with respect to the following facts.

1) The Plaintiff related to the appropriation of operating expenses of a desired class shall submit a letter of the operation of a desired class in the form of class and club each year from the 2014 to the 2018 year, and submitted a settlement statement and documentary evidence receipt after receiving and executing a total of KRW 2.4 million estimated operating expenses of the desired class for five years, but in fact, it shall be commercially useful for the use of operating expenses of KRW 1,798,650 due to the purchase of books, etc., for children, clothes, miscellaneouss, miscellaneouss, and books, and KRW 2,40,000 for the class operation expenses in the 2014 and 2016 to the 2018 year from the 2016 to the 2018 year from the 2016 to the 2018.

C. On July 2, 2019, the Plaintiff dissatisfied with the above disciplinary action, and filed an appeal review with the Teachers’ Appeal Committee. On September 4, 2019, the Teachers’ Appeal Committee dismissed the claim on the instant disposition, and changed the claim on the surcharge to three times (6,130,080) the amount of profit (6,130,080 won) by partially citing the claim on the surcharge for disciplinary action.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

In light of the above, the Defendant: (a) rendered the instant disposition against the Plaintiff in accordance with the Rules on Disciplinary Measures, etc. of Public Educational Officials (hereinafter “Rules on Disciplinary Measures”); (b) however, the instant disposition dismissing the Plaintiff for the following reasons, which is too harsh, should be revoked as it constitutes a deviation or abuse of discretion.

① The instant disciplinary decision rules merely set the two-stage criteria as 's dismissal' in cases where it is difficult to present the case of embezzlement and misappropriation of public funds due to negligence, and as a result, it does not achieve the balance between the degree of misconduct and the disciplinary action, and thus, it cannot be deemed that the instant disposition was made within the scope of discretion solely on the ground that the criteria for the disciplinary decision of this case were based on the criteria for the disciplinary decision of this case.

② The Plaintiff used 2 million won out of the operating expenses of the desired class and the class operation expenses for five years, and thus did not cause any irregularities, and paid the surcharge for the disciplinary action against the past’s mistake and against the past mistake.

③ Since the appointment of the Plaintiff as a teacher, the Plaintiff received a large number of official commendationss for 18 years, won in various research presentation competitions, and faithfully performed duties such as writing the teaching materials. Furthermore, there is no history of disciplinary action or criminal punishment, and the same teacher, etc. wishes to take a serious disciplinary action against the Plaintiff.

④ Even in a case where the instant rule applies, the disciplinary action of suspension is against the principle of equality, inasmuch as the disciplinary action of suspension is taken, even when the Plaintiff’s large amount of public funds is more useful.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as shown in the column.

C. Determination

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, it shall be at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure as the exercise of the authority has considerably lost validity under the social norms, it shall be deemed unlawful. If a disciplinary measure against a public official has considerably lost validity under the social norms, it shall be deemed that the contents of the disciplinary measure can be objectively and clearly unreasonable in light of various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, the criteria for the determination of the disciplinary measure, etc. according to the specific cases, and even if the exercise of the authority to take the authority to take the disciplinary measures is left at the discretion of the person having the authority to take the disciplinary measures, it is against the public interest principles that should exercise the authority to take the disciplinary measure for the public interest, or is generally considered as a disciplinary reason, which goes against the principle of proportionality or the standard of fairness applied to the same degree without a reasonable reason, thereby violating the principle of equality (see, 2016.

Examining the following facts and circumstances in light of the aforementioned legal principles, the instant disposition constitutes a case of deviation from or abuse of discretionary authority, as it goes against the principle of proportionality, as it is excessively excessive compared to the degree of the misconduct, and thus constitutes a case of deviation from or abuse of discretionary authority, and thus, ought to be revoked.

① The Plaintiff received KRW 2,798,650 from 2014 to 2018 for personal use of KRW 1,798,650 of the expenses for the operation of the desired class to be disbursed in order to resolve the educational gap among the students’ educational environment unfavorable to the Plaintiff, and prepared and submitted a false statement of accounts after having used them as children’s clothing, miscellaneousization, and purchase of books. In addition, from 2014 and 2015 to 2018, the Plaintiff was in office as a teacher in charge of class events and daily education, and paid KRW 24,710 out of KRW 886,00 for class activity expenses to be disbursed for autonomous and unique educational activities, such as class events and daily education, and purchased books. Such embezzlement of the Plaintiff’s public fund is difficult to deem the degree of irregularities in light of the size of embezzled amount, expenditure period and details, etc.

② The attached Table of the criteria for disciplinary action of this case stipulates that the degree of misconduct is weak and intentional, and that the pertinent disposition of this case conforms to the above criteria. However, in light of the fact that “the embezzlement and misappropriation of public funds, and occupational breach of trust” cannot be achieved by negligence, there is difficulty in uniformly dismissing or dismissing the same without considering the type of misconduct in the instant case’s disciplinary action and the amount of the same.

③ Articles 15 and 15-2(1) of the Decree on Disciplinary Measures against Public Educational Officials, and Article 2(1) of the Rules on Disciplinary Measures provide that disciplinary measures should take into account the usual behaviors, work performance, achievements, degree of penance, details of the request for disciplinary measures, and other circumstances of a person suspected of the disciplinary action. Therefore, it is reasonable to reflect the above elements in a disciplinary action. Nevertheless, the Defendant appears to have taken the instant disposition without considering the elements of the disciplinary action, on the premise that the Plaintiff’s act of embezzlement of public funds cannot be mitigated pursuant to Article 83-2(1)1 of the State Public Officials Act, and Articles 83-2(1)1 and 78-2(1) of the State Public Officials Act.

④ The Plaintiff’s mistake was divided, and paid the surcharge for disciplinary action, three times the embezzled amount. Moreover, the Plaintiff had no record of disciplinary action since his appointment as a public educational official. From 2003 to 2016, the Plaintiff received commendation from the Minister of Education, the Superintendent of the Office of Education, the Superintendent of the Office of Education, and the Superintendent of the Office of Education, etc. for nine times. Furthermore, from 2002 to 2014, the Plaintiff participated in various research presentation meetings, the thesis competition, and participated in nine times, and actively participated in the evaluation data and teaching materials work related to the subject of education. In addition, the Plaintiff was also working as the guidance teacher for gifted education, the guidance advisor for the improvement of basic academic background, and the guidance consultant for the improvement of basic academic background.

⑤ Prosecutor also ordered the Plaintiff to suspend indictment on the grounds that the Plaintiff’s primary crime is the principal offender, and there is no criminal record, and the case is relatively heavy.

① In a similar case where the Plaintiff embezzled public funds more than twice the amount of the Plaintiff, the case of disciplinary action for three months of suspension by applying the disciplinary rules of the instant case, etc.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.