(영문) 서울고등법원 2015.12.18. 선고 2015누50476 판결

The judgment of the first instance is revoked. The judgment that the defendant revoked the reprimand disposition against the plaintiff on August 29, 2014.

Reasons

1. The summary of the case and the facts premised on the case

A. Case summary

In this case, even if the plaintiff et al. did not take any measure, it cannot be deemed as a violation of the duty of good faith under the State Public Officials Act, and thus, the plaintiff et al. seek revocation of the measure on the ground that the measure of reprimand against the plaintiff et al. was unlawful, because the plaintiff et al. did not notify the Korean University Education Council, which is the principal agent of selecting the university subject to strengthening the educational ability, without notifying the result of the measure to strengthen the educational capacity of the university.

The judgment of the court of first instance dismissed all the claims of the plaintiff et al. on the ground that the plaintiff et al.'s act violates the duty of good faith under Article 56 of the State Public Officials Act and constitutes grounds for disciplinary action under Article 78 (1) of the State Public Officials Act, and only the plaintiff et al. appealed (A and C did not appeal, which became final and conclusive separately from

[Related Acts and subordinate statutes] Attached Table 1

B. Presumed factual basis

【Evidence A-1, 2, 2, 3, 1-2, and the purport of the whole pleadings】

(1) A party;

From April 11, 2005 to September 2, 201, the Plaintiff was first appointed as an educational administrative officer, and served in the Ministry of Education (former Ministry of Education, Science and Technology) E as an administrative officer from February 25, 201 to September 2, 2012. From July 1, 2014 to July 1, 2014, the person working in the Ministry of Education F in the Ministry of Education is the person who is the head of the Ministry of Education, who is in charge of human resources development policies, school education, lifelong education, and academic affairs, and the Defendant is the person entitled to request disciplinary action against the Plaintiff based on Article 78 (4) and Article

(2) Reprimand disposition against the plaintiff

As of May 12, 2014, the Defendant requested the Central Disciplinary Committee of the Ministry of Education to make a disciplinary resolution on the ground that the Plaintiff, as an administrative officer from May 12, 2011, 201, to September 2, 2012, was in charge of reviewing the basic plan for the project to strengthen university education capacity in 2012 and of selecting the support university, etc., as shown in attached Table 2, and violated the duty of good faith under Article 56 of the State Public Officials Act. Accordingly, the Central Disciplinary Committee decided on August 22, 2014 on the ground that the Plaintiff violated the duty of good faith under Article 56 of the State Public Officials Act. The Defendant issued a reprimand against the Plaintiff as of August 29, 2014. The Plaintiff was notified of the reprimand disposition around that time.

(3) via a necessary petition review

The Plaintiff filed an appeal review seeking revocation of a reprimand disposition with the Ministry of Personnel Management, but the Ministry of Personnel Management dismissed the Plaintiff’s petition review on December 16, 2014.

2. Issues of the instant case

(a) the existence of grounds for disciplinary action;

B. Whether reprimand disposition against the Plaintiff constitutes a deviation from the scope of discretion or abuse of discretionary power

3. The judgment of this Court

(a) the existence of grounds for disciplinary action;

【Defendant’s Claim】

The defendant asserts that the plaintiff did not accurately understand the sanctions and did not take measures to determine whether to impose sanctions and the degree of sanctions by the Business Management Committee of the Korean University Education Council, thereby unfairly violating the duty of good faith provided for in Article 56 of the State Public Officials Act.

【Counterclaim by the Plaintiff】

The Plaintiff asserts that the university education capacity strengthening project is selected by quantitative and objective evaluation of the university, and that the sanctions are not clearly provided due to diverse types of illegality and corruption, and that the objective evaluation is difficult to reflect this in the objective evaluation, and that it did not violate the duty of good faith.

[Judgment]

(1) In full view of the purport of the entire pleadings, the following facts can be acknowledged in evidence (A4-2, A8, and B-2).

(A) A university education capacity strengthening project is a system that evaluates universities on a quantitative basis based on objective numerical data to select support universities and provides benefits to undergraduate students attending universities.

B) In the university specialization project following the strengthening of university education capacity, the audit results do not first be reflected in the process of selecting the recipients to be supported.

(2) Meanwhile, the following facts can be acknowledged in light of the overall purport of the arguments in evidence (A1-1, 2, A4, A4-1, 2, A1-2, and B-2).

(A) A university education capacity strengthening project shall establish a basic plan every year in the Ministry of Education as a project to provide financial support based on achievements through a certain basic principle that consists of a core index for the enhancement of university education capacity, and shall deliberate on and coordinate the selection and cancellation of the university to be supported by organizing and operating the "Project Management Committee" to deliberate on and coordinate major matters among the project evaluation, management, support, etc. in the "Korean University Education Council," which is a specialized institution exclusively in charge of the evaluation, management, support, etc. of the project.

B. In 2011, the university education capacity strengthening project was determined to be able to take measures such as reduction of subsidy and exclusion from eligibility for selection, suspension of execution of subsidy and recovery after deliberation by the business management committee in the case of universities under investigation or prosecution due to embezzlement of school expenses.

(C) The basic plan for the strengthening of university education capacity in 2012 was finalized on March 8, 2012, and there was a newly established "standards for financial sanctions under the Non-Adjustment Council". This provision is a provision to require the National Assembly Education Science Technology Committee to strictly enforce the government-funded budget in the closing of accounts in 2010 and the inspection of state administration in 2011.

D. The financial sanctions based on the principle of sanctions are different in terms of the methods applied to the phase of the strengthening of educational capacity before and after the selection of the project for the strengthening of educational capacity as the basic principle of sanctions.

In the event that the decision on sanctions is not completed before the selection of a supporting university or college, the selection is revoked if the decision on sanctions after the selection of the supporting university or college is determined as "excluding the eligible recipient of the support" * After the selection - the suspension of the execution of the project cost and the suspension of the grant of the subsidy at the time of visa recognition ? The level of sanctions is determined through the vindication, hearing, etc. of the relevant university or college during the period of suspension of the execution of the measure project cost.

(E) In the process of setting the sanctions standards on January 5, 2012, the Plaintiff was submitted by the audit officer of the Ministry of Education, Science and Technology, but did not notify it to the Korean University Education Council.

F) The Plaintiff, as shown in attached Table 2, selected and reported as a university eligible for support, including ten universities, including a master university, for which the Ministry of Education requests the investigation or files a complaint with the Korean Council of University Education. The Plaintiff’s selected university was finally selected as a university eligible for support with the approval of the Minister of Education on April 12, 2012, following a review by the head of A division.

G. On April 2012, 2012, a civil petition was filed to the effect that it was unfairly selected as the support university in 2012, even though it was not accused of misappropriation in 2010 in 2010. Accordingly, on May 2012, the project management committee was unable to support the project cost of 2.3 billion won, excluding the remaining project cost of 4.6 billion won already executed, the subsidy of 1.84 billion won was revoked.

After that, the plaintiff did not review the measures in accordance with the sanctions against other illegal colleges, and as a result, the remaining nine universities have executed the project cost of KRW 19.63 billion.

On the other hand, while the Korean University Education Council limits the collection of illegal and unreasonable materials from universities in accordance with Article 9 of the Official Information Disclosure Act, the Ministry of Education may collect data because it takes measures such as accusation against illegal and unreasonable materials confirmed by the auditor's office.

(3) "Duty of good faith prescribed in Article 56 of the State Public Officials Act" refers to the duty of the most fundamental duty imposed on a state public official and the duty of good faith in order to promote the public interest as much as possible and prevent any disadvantage to the public (see Supreme Court Decision 88Nu3161 delivered on May 23, 1989, relating to the duty of good faith of a local public official). Therefore, a state public official shall serve as a servant of all citizens for the public interest, and shall use all working hours and the duty of care in order to perform his duty.

According to the facts acknowledged earlier, the Plaintiff was in charge of overall management of the business plan to select a university subject to the strengthening of educational capacity, such as preparing a basic plan, and thus, was obligated to perform its duties so that all citizens’ employees who committed unlawful acts or corruption do not select a university as a supporting university for the public interest. In addition, in light of the circumstances where the educational sanctions were introduced in 2012 and the details leading up to being introduced in 2012 and the guidelines for sanctions are anticipated to be taken into account in the selection of the supporting university by stipulating that sanctions may be imposed even if they are aware of prior to the selection in the guidelines for sanctions, the Plaintiff shall be given notice of the audit results to the Korean University Education Council so that the audit results may be reflected in the audit results for the public interest, and there was a need to post-management of duties so that sanctions may be taken pursuant to the audit results. Accordingly, the Plaintiff’s failure to perform such duties due to the Plaintiff’s failure to perform his/her duties constitutes grounds for disciplinary action under Article 78 subparag. 1 of the

The defendant's argument is with merit.

B. Whether reprimand disposition against the Plaintiff constitutes a deviation from the scope of discretion or abuse of discretionary power

【Plaintiff’s Claim】

In light of the fact that the plaintiff has been able to faithfully perform duties, and that the Minister of Labor, the Minister of Education, Science and Technology has given official commendation, and the President commendation has been awarded, it is argued that the disposition of reprimand against the plaintiff was an error of deviation from discretion or abuse of discretion.

[Dissenting of the Defendant]

The Defendant, due to the Plaintiff’s act, has suffered a significant financial loss due to the payment of the project cost of KRW 19.63 billion to the State. In the case of a master area school, the Defendant asserts that the public interest to be achieved due to the disciplinary action against the Plaintiff cannot be said to be less than the disadvantage suffered by the Plaintiff in light of the fact that the public interest to be achieved due to the disciplinary action against the Plaintiff cannot be said to be less than the disadvantage suffered by the Plaintiff. Therefore

[Judgment]

A disciplinary measure against a public official is a sanction imposed to identify liability and to maintain order in public service relations, in cases where a public official is in a labor relationship, rather than a violation of his/her duties or other simple labor-management relations. However, the State Public Officials Act does not provide specific criteria as to the cause of disciplinary action, motive, character, form, impact, influence, etc. of an act deemed a cause for disciplinary action, and the attitude of the relevant public official before and after the act, disciplinary action, influence on other public officials, etc. In order to determine whether to select a disciplinary measure and to determine what kind of disciplinary measure when a public official is deemed to be a public official. In addition, the State Public Officials Act does not impose a disciplinary measure at the discretion of the person having authority over an action, and if so, within the scope of 97 Supreme Court rulings, 197Da19799 decided on the ground that the disciplinary measure is clearly unreasonable and unreasonable in light of social norms.

According to the aforementioned premise and the above facts, the Plaintiff’s selection of university eligible for support and execution of subsidies due to a violation of the Plaintiff’s duty of good faith has been damaged, and the degree of illegality is not weak in light of the fact that the State’s finance was executed at a university subject to sanctions. On the other hand, the reprimand disposition against the Plaintiff is not against the State Public Officials Act, the Decree on Disciplinary Action against Public Officials

It is the lowest level of disciplinary action prescribed in the former Rules (amended by Ordinance of the Ministry of Security and Public Administration No. 91 on September 2, 2014).

In light of these circumstances, even if considering all favorable circumstances in favor of the Plaintiff that the Plaintiff was given official commendation several times, the public interest to be achieved by the disciplinary action cannot be deemed to be less than the disadvantage the Plaintiff would have suffered from the disciplinary action. Therefore, the reprimand disposition against the Plaintiff cannot be deemed to be significantly unreasonable or objectively unreasonable in light of social norms compared to the Plaintiff’s breach of duty of good faith, compared to the Plaintiff’s breach of duty, and thus, it cannot be readily concluded that the person having authority over disciplinary action deviates from the scope of discretion or abused discretionary power. Therefore, the Defendant’s reprimand disposition against the Plaintiff is not unlawful. The Plaintiff’s assertion is

4. Conclusion

Therefore, the disciplinary action against the Plaintiff as of August 29, 2014 is lawful. As can be seen, the judgment of the first instance, which dismissed the Plaintiff’s claim, is justifiable, and the Plaintiff’s appeal is dismissed as without merit, and the costs of appeal are borne by the losing Plaintiff.