2010Guhap3146 Revocation of dismissal

ThisA (59 years old, South)

Law Firm International Law Firm

[Defendant-Appellant]

The Superintendent of the Office of Education

Attorney Cho Young-gu, Counsel for the defendant-appellant

October 22, 2010

November 26, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's dismissal disposition against the plaintiff on February 26, 2010 shall be revoked.

1. Details of the disposition;

A. After being appointed as a teacher on October 19, 1987, the Plaintiff was transferred to a high school on March 1, 2008, and served as the chief teacher from March 1, 2009 to the second year.

B. On February 26, 2010, the Defendant dismissed the Plaintiff pursuant to Article 78(1)1 of the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter “the Act”) on grounds of the following disciplinary action (hereinafter “instant disposition”).

Grounds for Disciplinary Action

○ The above teachers were to use 2,6180,000 won as illegal supporting money collected by the president of 2nd grade parents from 35 to 35 executives of high school during the month of March 2009, 10,000 won as supporting expenses for entrance to school at the end of April 2009, 2000 won and 60,000 won as a gift of May 1, 2009, and to receive money and valuables of 12,60,000 won as a gift of 20,000 won and 60,000 won as a gift of 2nd grade parents from 1,260,000 won and 1,000 won for each school year to 6th grade of May 12, 2009, 106,000 won, including 10,000 won per head of 2nd grade school and 10,000 won for school teachers for entrance to 6th grade.

○ Such misconduct is in violation of Article 61 of the State Public Officials Act (Duty of Integrity) and Article 14 of the Code of Conduct for Public Officials of the Busan Metropolitan Office of Education (limited to the act of receiving money and other valuables). The Plaintiff’s petition review on the disposition of this case was dismissed on June 7, 2010.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 4 (including paper numbers), witness c1, testimony of leC and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition constitutes a deviation or abuse of discretion, as it is unreasonable to take disciplinary action on the following grounds.

1) The money that the Plaintiff received is a pure support that was voluntarily created by parents. The Plaintiff sought and attempted to return the support money several times, but parents refused to return the money in full and delayed, and returned the full amount before a civil petition for the support money was filed.

2) The Plaintiff received support money on behalf of six teachers in the second year as a teacher in the second year. As such, the Plaintiff’s amount received shall be deemed as KRW 12.6 million, and since the Plaintiff did not first demand support money, it constitutes a ground for reduction of salary or reprimand, which is minor disciplinary action, where the Plaintiff’s intention is light and has only passed due to the public official’s misconduct handling rules, and the rules on disciplinary action, etc. on public educational officials.

3) Although the Plaintiff did not have any money consumed individually by the Plaintiff, and only delivered the money for the support to the teachers, and even though the Plaintiff expressed the existence and amount of the support money to the teachers at the end of June 2009, the instant disposition is inconsistent with the principle of equity, as other teachers were dismissed compared to the Plaintiff’s dismissal in March of the salary reduction.

4) The Plaintiff received and returned the support money in 2009, and the Defendant took the instant disposition retroactively applying the Austria-out system, which was implemented since 2010, and the Plaintiff had no disciplinary power during the Plaintiff’s faithfully worked as a faculty member for twenty-four years with a sense of duty, and the instant disposition is too harsh in consideration of the fact that the students and their parents have raised an urgent appeal against the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The president of the parent group: (a) collected support money from 35 parents; (b) paid KRW 12.6 million to the Plaintiff (the head of the school department and the teacher of the leapc children) by inserting KRW 2 million in the name of the Plaintiff’s book, KRW 10 million in the name of the instruction expenses for entrance into a school at the end of April 2009; and (c) KRW 2 million in the name of the first school travel expenses at the beginning of May 2009 and KRW 600,000 in the name of the gift gift on the Sho Day.

2) The Plaintiff paid 200,000 won per head of May 12, 2009 and 300,000 won per head of June 1, 2009, respectively, to 6 teachers in the second-year course, including themselves, and used 400,000 won in total, by consuming 4,000 won for the pedagogy supplementary school meal expenses, 1.2 million won in total, and 4,60,000 won for the pedagogy supplementary school meal expenses.

3) On October 9, 2009, the Plaintiff paid its money to KRW 8 million, which was used on October 9, 2009, and returned KRW 12 million to the executives of the parents association who collected their money in a restaurant near the school.

4) On October 15, 2009, an anonymous civil petition was filed against the Defendant regarding the instant aid. 5) During the literature response procedure conducted in the instant disposition, the Plaintiff and YC1 stated that, around June 2009, the Plaintiff made a 300,000 won payment to the school teachers in the second year, and stated that, on the other hand, around October 10, 2009, the Plaintiff expressed the existence and amount of the aid. On the other hand, Park C2 knew that there was the aid, and that, around October, this c2, this c2 stated that the Plaintiff was 3,00,000 won, and that, at the same time, this c3 also made a statement that the Plaintiff was satoned with the fact that the Plaintiff was saton, and that this c2 made a statement that he did not specifically respond to the Plaintiff’s source.

[Reasons for Recognition] Facts without dispute, Gap evidence 7, Eul evidence 1, Eul evidence 1, 2, and 4 (including additional numbers), witness , 31, and leC's testimony, the purport of the whole pleadings

D. Determination

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure is placed at the discretion of the person having the authority to take the disciplinary measure. Thus, the disciplinary measure is illegal only when the person having the authority to take the disciplinary measure has been deemed to abuse the discretion that the person having the authority to take the disciplinary measure has considerably lost validity under the social norms. In addition, whether a disciplinary measure against a public official has considerably lost validity under the social norms should be determined by taking into account various factors, such as characteristics of duties, the content and nature of the offense causing the disciplinary measure, administrative purpose that the person intends to achieve through the disciplinary measure, and criteria for

However, the following circumstances recognized in accordance with the above facts and empirical rule are as follows: (i) parents, upon receiving supporting money from the parents, become aware of whether to pay supporting money to the teachers; (ii) parents, regardless of the quality of education, are unable to pay supporting money to the teachers; (iii) the school’s awareness and unrefinites cause of lowering the level of public education; and (iv) the school’s school year of high school’s school year, thereby promoting private education; and (ii) the Plaintiff received 12.6 million won from the parents and distributed or consumed them to the school teachers without immediate return; and (iii) even if the Plaintiff received supporting money from the parents until the time of the filing of a civil petition, the Plaintiff determined the place of use, method of use, and amount of using the money; and (iv) the Plaintiff’s removal of the Plaintiff’s money and valuables from the public educational official’s position of taking into account whether to return supporting money to the school teachers; and (v) the Plaintiff’s removal of the Plaintiff’s money and valuables from the public educational official’s position can be deemed reasonable in view of gross negligence.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, judge and associate judge;

Judges, fixed number of judges, education and training, which cannot be signed;

The presiding judge

Judges Choi Young-chul