(영문) 서울행정법원 2016.5.12. 선고 2015구합71242 판결

A. On September 1, 1980, the Plaintiff was appointed as a public educational official and served as the principal on September 1, 2005, and was promoted to the principal on September 1, 2005, and on February 1, 2013, the Plaintiff was dispatched to a D school located in Busan-gu, Busan-si, a Chinese educational institution abroad on September 1, 2014.

B. The Ministry of Education received a civil petition against the misconduct in receiving money from the head of the D School Administration from February 2, 2015 to February 26, 2015, conducted a civil petition investigation, and notified the Defendant of the result of the civil petition investigation and the demand for a minor disciplinary measure against the Plaintiff. On June 1, 2015, the Defendant requested a disciplinary measure against the Plaintiff, and the relevant disciplinary committee made a decision on June 11, 2015 with respect to the Plaintiff on the basis of the result of the said disciplinary measure. On June 18, 2015, the Defendant deemed that the Plaintiff violated Articles 56 and 63 of the State Public Officials Act in relation to the operation of D Schools on the ground that the Plaintiff violated Article 56 and 63 of the State Public Officials Act (hereinafter referred to as “instant disposition”).

1. Around 2014, at the time of the implementation of the project for the operation of the Republic of Korea Language Training Program, the program is not to be incorporated into the school accounting without deliberation by the school operation committee in relation to the selection of the language training company.2.2. The total expenses for the language training is not to be incorporated into the school accounting.3. The school principal unilaterally changed the school administration schedule without considering the parents’ opinion gathering and local conditions.4.

C. On June 25, 2015, the Plaintiff filed a petition review with the Appeal Commission for Teachers seeking revocation of the instant disposition, but was dismissed on August 12, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, 4, 8, Eul evidence 5, Eul evidence 3 and 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① As to the ground of the instant ground for appeal No. 1, since the Plaintiff did not undergo a deliberation by the school operating committee but passed a deliberation by the school operating committee at least two weeks prior to the implementation of the fishery training, it was delayed. According to Article 6(3) of the Regulations of the school operating committee, a regular meeting is given to each member along with a convocation announcement at least seven days prior to the opening of the meeting, and thus, the Plaintiff violated Acts and subordinate statutes by bringing the Plaintiff to the school operating committee and passing deliberation at the meeting two weeks prior to the implementation of the fishery training. Moreover, the Plaintiff collected the opinion of the parents in relation to the fishery training, provided sufficient information to parents through consultation with the parents, holding a briefing session, etc., and the deliberation by the school operating committee is to provide sufficient information about school administration to the parents, so the Plaintiff’s act does not violate the purport of requesting

② As to the ground of appeal 2 of this case, the Plaintiff’s act merely did not deposit money in the school account in order to prevent damages caused by exchange of language training expenses by incorporating the total amount of fish class training into the school account and withdrawing from the school account again after the occurrence of damages caused to the fish class training expenses. As a result, the Plaintiff’s act was reduced the burden of expenses on parents. If the Plaintiff’s act violates the law, Article 4(3) of the Rules on the Disciplinary Punishment, etc. of Public Educational Officials, even if the act is deemed to violate the law, the Disciplinary Committee may reduce the disciplinary action by taking into account the circumstances, in a case where it is deemed that the misconduct

③ With respect to the grounds for appeal of the instant case, the temporary and emergency meetings of the school operating committee are determined to be publicly announced at the discretion of the chairperson, and the articles of incorporation also provide that the deliberation may not be conducted in the event that there is no time to convene a steering committee. At the time, the Plaintiff, as the Republic of Korea, investigated the applicant through the chief of the school, and decided on the holidays under the circumstances with the approval of all other than six persons, as the result of the most reflection of all the members of the school.

④ With regard to the grounds of this case No. 4, the Plaintiff did not proceed with the recruitment procedure for the passing of a specific person. The Plaintiff’s personnel management right is entirely impossible for the board of directors and the chief director of the board of directors and the board of directors of the school bill pursuant to Article 42(2) of the Articles of incorporation. In particular, in relation to the recruitment of teachers, it is difficult to regard the inappropriate personnel management as a violation of the duty of good faith. In particular, in the case of sports E, history E, F, and G of the general society, all of the applicants passed higher than the other applicants. With regard to the appointment procedure for the head of the administrative division No. H, the appointment procedure for the general employee is a flag that did not go through the above procedure because the internal advisory committee is not essential. The head of the administrative division No. 1000, and the head

⑤ The Plaintiff was appointed as a public educational official and served as a teacher for at least 35 years, and received an official commendation from the head of the office of education and the Minister of Government Administration and Home Affairs except for the instant disposition, and considering that there was no record of disciplinary action and equality with other disciplinary cases, the instant disposition was deviates from and abused

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether to recognize the grounds for disciplinary action

A) According to the evidence No. 5, No. 1, No. 1, and No. 3 in relation to the ground of this case, Article 27(1)3 of the D School’s articles of incorporation provides that the school operating committee shall deliberate on the methods of operating the curriculum of the school. It is acknowledged that the Plaintiff brought a complaint several times on the agenda to the school operating committee without requesting the deliberation of the school operating committee in advance on the plan for promoting the fishery study training, such as the period and program operation, required expenses, and the number of participants, on the ground that the number of students participating in the fishery education training is not definite.

According to the above facts, the purpose of the articles of incorporation of D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D DD's deliberation by the School Governance Committee is to reflect the opinions of the members of the School Governance Committee

Therefore, it is reasonable to view that the Plaintiff’s formally referred the above agenda to the School Governance Committee when the Plaintiff became aware of the material facts, such as the schedule, is contrary to the purport of Article 27(1)3 of the above Articles of Incorporation.

Therefore, the plaintiff is judged to have violated the above articles of incorporation, and the ground for the first case is recognized.

B) Article 15(5) of the Enforcement Rule of the Act on the Education Support, etc. of Korean Nationals Residing Abroad with respect to the grounds for the instant subparagraph 2, provides that the financial and accounting rules of private school institutions shall apply mutatis mutandis to the accounting management of Korean schools, and Article 6 of the financial and accounting rules of private school institutions shall be incorporated into the revenue and expenditure budget and shall not be used directly.

According to the statements in Eul evidence Nos. 1 and 3, the plaintiff planned to take 2.8 million won per student in relation to the language training, and it is recognized that only 6.4 million won per student in return to and from China was deposited in the accounts of D schools.

According to the above statutory provisions and the facts of recognition, the plaintiff is judged to have violated the above relevant provisions in relation to the language education training, and therefore, the ground for the second of this case is also recognized.

C) According to Gap evidence Nos. 7, Eul evidence Nos. 5, Eul evidence Nos. 1 and 3 in relation to the grounds of this case, Article 6(2) of the Regulations on the School Governance Committee of D Schools provides that "the meeting shall be classified into regular meetings and extraordinary meetings, and regular meetings shall be held twice a semester, and regular meetings shall be convened by the chairperson at the request of the principal or members." Article 6(3) of the same Act provides that "the regular meeting shall be notified to each member of the meeting along with a convocation notice seven days before the meeting is held." Temporary and emergency meetings provide that "the convocation notice shall be given at the discretion of the chairperson." D schools shall be held 674 students, 68 teachers, 26 teachers, 26 teachers, 2014, and 1/25, 2014, and 1/3 of the survey and emergency meetings shall be held at the discretion of the chairperson.

According to the above facts of recognition, it is reasonable to view that the temporary meeting convened at the request of the principal of the school D at the request of the principal of the school does not need to notify each member of the committee along with the meeting agenda seven days prior to the regular meeting. In determining December 25, 2014, which is gender bomb, as the discretionary leave date, the Plaintiff held and finalized the school steering committee on December 24, 2014, which is the day immediately preceding the gender bomb, while most of the students and school personnel agree thereto, it is difficult to deem that the Plaintiff did not comply with the convocation procedure of the school steering committee or caused a parent’s civil petition unilaterally by unilaterally changing the school operating schedule.

Therefore, this part of the plaintiff's assertion is reasonable and the ground for the third of this case is not recognized.

D) As to the ground of this case No. 4

(1) According to Article 42(2) of the Disciplinary Ordinance of the D School provides that teachers other than teachers dispatched by the Ministry of Education among teachers other than the heads of the relevant school shall be appointed or dismissed by the board of directors on the recommendation of the head of the relevant school. When formulating a plan for employment of assistant principal, elementary school teachers, middle school teachers, and pre-stigious city, etc., they shall J. K, K, Plaintiff L, and M in the region of their home country as interviewers, and M were not present at the time of actual contact with the local public. The Plaintiff sent 5 local interview points to 8 local applicants, including 5 local teachers, 3 local teachers, and 2 local applicants, and the Plaintiff issued 1 local interview points to 20 local applicants. On the other hand, on November 2, 2014, the Plaintiff issued 201 local interview points to 3 local applicants.

Comprehensively taking into account the following circumstances, i.e., ① the Plaintiff’s influence as the principal in the course of employing teachers, and ② the Plaintiff, in employing teachers, conducted the interview procedure for the applicant in its home country, conducted an interview with the applicant in the interview with the applicant in the home country, and conducted an interview with the applicant in the interview with the applicant in the interview with the local applicant, and in this case, the grading point for the applicant in the country of home country was used as it is an open grading sheet. In such a case, it would be likely to impede the fairness of the open recruitment procedure by giving preferential treatment to the applicant in the field compared to the applicant in the home country, and actually passed only all the local applicants, and the Plaintiff, 3, and the Ministry of Education also recognized that there was a problem in the above recruitment procedure because it appears that there was a problem in the above recruitment procedure, considering the following circumstances:

Therefore, this part of the plaintiff's assertion is without merit.

(2) According to the records on new employment or evidence Nos. 1, 2015 by the head of the administrative office on March 1, 2015, the plaintiff was found to have been made later after the recruitment of applicants in the field of audit by the Ministry of Education on February 25, 2015, and it is recognized that the subject of the examination criteria was stated that the plaintiff adjusted the recruitment of applicants. In order to employ a person who has a career in the administrative office as the head of the administrative office, the fact that the plaintiff set a voluntary allocation criteria after receiving the application without setting the prior documents examination and the criteria for allocation of interview points in order to employ him as the head of the administrative office is the plaintiff

According to the above facts, it is reasonable to view that the plaintiff operated the above open recruitment procedure improper by prescribing the recruitment plan and allocation criteria of the head of the administrative office in favor of the plaintiff as the head of the administrative office in order to pass the interview as the head of the administrative office (the plaintiff asserted that the plaintiff did not properly read the above written answer, and there is no evidence to support it, but there is no evidence to support it, and the plaintiff also argued that the interview procedure for four persons who passed the document screening with the plaintiff as well as the chief of the administrative office, and the result of calculating the points was found to have passed the document screening as the result of the calculation of the points. However, even if other members other than the plaintiff participated in the interview procedure, it is difficult to view that the conclusion that the above improper operation of the open recruitment procedure differs, as long as the employment plan and allocation criteria were set favorable to them).

(3) The renewal of the contract in March 1, 2015 by the head of the administrative division H on March 1, 2015

According to the statements in Gap evidence 15, Eul evidence 1, Eul 1, 5, and 8, the plaintiff stated that "in entering into a contract with H on February 25, 2015 with the Inspector General of the Ministry of Education as of February 25, 2015, the plaintiff was erroneous in failing to appoint the chief director through the personnel advisory committee, etc., in accordance with the articles of incorporation, and Article 2 (1) of the personnel regulations of D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D, the head of the school shall prepare the following documents and seek advice on the eligibility of employment to the personnel advisory committee, according to the personnel advisory committee's provision on the appointment of D D D D school staff (re-election), and the fact that D D D D school also holds personnel advisory committee on September 1, 2014 and also is recognized as a person to return to the school.

In full view of the above facts, the personnel management was conducted in improper manner without seeking advice from the personnel management committee even in the case of office staff who are not teachers in D schools, and the plaintiff, the principal of the D school, also had been well aware of this fact (the plaintiff is interpreted as invalid in light of the fact that the provisions of the Private School Act, the articles of association, and the school regulations only have the personnel management committee or the personnel management committee regulations with respect to the appointment of the general staff, it is argued that the provision of the personnel management committee for the office staff in D schools cannot be considered as an essential procedure. However, as seen above, the personnel management regulations of D schools provide that the personnel management committee should also hold the personnel management consultation committee to seek advice on the eligibility of the office staff when a vacancy occurs in the office staff, and the sub- regulations that provide that the appointment procedure cannot be seen as invalid more strict than the upper-level regulations to ensure fairness in the appointment procedure.

(4) Sub-determination

Therefore, the ground for No. 4 of this case is recognized.

2) Whether the discretion of disciplinary action is deviates or abused

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the person subject to disciplinary action is 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 an exercise of discretionary authority has considerably lost validity under the social norms, it can be deemed unlawful. If a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by taking into account various factors, such as the content and nature of the misconduct causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for the determination of disciplinary measures, etc., and the content of the measure should be deemed objectively unreasonable (see, e.g., Supreme Court Decision 2011Du29540, Feb. 27, 2014).

(4) Considering that the Plaintiff’s disposal of the above facts and evidence Nos. 9 and 3 were based on the overall purport of oral argument, i.e., the Plaintiff’s status of managing school affairs including management and supervision of other teachers and employees as school principals, the Plaintiff failed to properly comply with the relevant regulations despite its strong compliance consciousness compared to ordinary workers or general teachers, and (2) the Plaintiff’s violation of disciplinary rules is not serious but intentional or gross negligence. However, considering that the Plaintiff’s disposal of the above facts and evidence Nos. 1, 2, and 4 were unreasonable, it is difficult to view that the Plaintiff’s disposal of the above facts and evidence No. 1, 1, 2, and 1, 2015 as the grounds for disciplinary action, the Plaintiff’s disposal of the above facts and evidence No. 1, 2, 3, 1, and 1, 3, 1, 1, 1, 2, and 5, 1, 2, 3, 1, 4, 1, 5, etc. of the disciplinary rules.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

If so, it is dismissed as it is without merit, and it is so decided as per Disposition.