(영문) 수원지방법원 안양지원 2020.1.10. 선고 2018가합101685 판결

A. The Defendant is a juristic person established pursuant to the Korean Racing Association Act for the purpose of fair implementation, etc. of horse racing. The Plaintiff is a person who obtained a pilot license from the Defendant on July 1, 1996 and obtained a pilot license from B, and worked as a assistant teacher from November 1, 2012.

B. On July 17, 2016, the Defendant collected intelligence that the Plaintiff and Suhman C received money from D, and participated in the offer of horse information, and requested the Plaintiff and C to investigate the case to the affiliated branch office of the Suwon District Prosecutors’ Office. After which, the Defendant issued ad hoc measures against the Plaintiff and C until the disciplinary decision of the Standing Committee, etc. becomes final and conclusive after the closure of investigation or the judgment of the court.

C. On December 28, 2017, the prosecutor of the Suwon District Public Prosecutor's Office located in the Suwon District Public Prosecutor's Office: (a) there is no evidence to acknowledge that the Plaintiff received an illegal solicitation in relation to the alleged violation of the Korean Racing Association Act that “the Plaintiff was issued one vehicle of 81,90,000,000,000,00,000,000,000,000,000,000,000,000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000.

D. On February 8, 2018, the Defendant: (a) held a standing committee; and (b) applied Article 108 Subparag. 22, 23, and 36 of the Marina Enforcement Rule to revoke the Plaintiff’s license to assist the Plaintiff (hereinafter “instant disposition”); and (c) notified the Plaintiff of the instant disposition on February 27, 2018. The grounds for the instant disposition are as follows.

1. From 20.2 to 24. 10. 10. 10 to 2016. 4. Gam 2, to 20. Gam 2, to 3. Gam 2, to 4, to 10. Gam 2, to 14 out-of-the-counter 2, to 14 out-of-the-counter 2, to 16. Gam 2, to 26, to 3, to 4, to 4, to 6, to 14, to 200 to 3, to 4, to 201, to 3, to 4, to 4, to 4, to 4, to 201, to 2, to 201, to 3, to 4, to 5, to 5, to 201, to 2, to 4, to 5, to 2016, to 2, to 3. Mam 2, to 16.

E. The statutes and regulations related to the instant disposition are as shown in the attached Form.

[Ground of recognition] Each entry of Gap evidence 1, 2, Eul evidence 1, 2, 5 through 8 (including numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. Non-existence of grounds for disposition

The grounds for the disposition of this case are nonexistent as follows, and it is unreasonable to consider that the plaintiff damaged his dignity as a racing-mael-related person only by making false information from a third party that the plaintiff committed a wrongful act.

1) As to the ground for disposition No. 1 of this case

The other party to the contact at issue of the Defendant, including D, E, F, I, J, K, etc., is the one in which the Plaintiff is engaged in hobby activities, such as the Plaintiff’s screen golf and fishing, or in the position of the staff of the Marin or the Defendant Association at the time of the Plaintiff’s operation as a waterway, and has entered into a contract from that time. In order to maintain a personal-friendly relationship, the Plaintiff only exchanged with them, and there was no fact that they leaked information, etc.

2) As to the ground for the second disposition of this case

A) The Plaintiff loaned D KRW 50 million monthly interest to D. However, instead of being paid the remaining principal and interest after only a part of the principal and interest was returned, D paid 22.7 million won as the contract deposit for the e-mailed e-mailed vehicle purchased by the Plaintiff.

B) Around the time when the Plaintiff became a assistant teacher, M was in office as the Defendant’s S farm teacher and managed the R M M M M M M M marina. The Plaintiff was naturally friendly while carrying out his duties with the Plaintiff. Around 2015, the Plaintiff lent M with KRW 30 million to M, and M paid a part of the amount to the Plaintiff as the circumstances arise. The monetary transaction between the Plaintiff and M is merely a pure private transaction based on friendly relationship, and is irrelevant to the illegal horse.

3) As to the ground for disposition No. 3 of this case

In a lodging room where the Plaintiff’s residents reside, it was difficult for a lighting teacher, a flagman, a manager, and an employee of the Defendant conference to gather and play a game for entertainment. Although the Plaintiff did not directly participate in the game, the Plaintiff was in custody of cash, but the Plaintiff was to receive 50,000 won interest from the participants, and borrowed the game fund. However, in the process, cash was deposited in the head of the Tong and withdrawn from the head of the Tong, and there was no illegal monetary relationship.

4) As to the ground for disposition No. 4 of this case

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B. procedural illegality

The instant disposition is null and void since it was conducted based on data collected pursuant to Article 105 (Factual Investigation, etc.) of the implementation rules null and void due to excessive infringement on the Plaintiff’s freedom of privacy.

Even if the grounds for the instant disposition exist, the Defendant requested the investigation of the Plaintiff solely on the grounds that the Defendant was anonymously raised, and as a result, the Defendant requested the investigation of the Plaintiff, and the disposition of non-prosecution was issued, and the Plaintiff’s report was unrelated to the fairness of the horse, and was not revealed otherwise, the instant disposition is null and void as it deviates from and abused discretion.

3. Determination as to the existence of the reasons for the disposition

A. Ground for Disposition No. 1 of this case

1) The following facts are recognized if each of the above evidence included in Nos. 3, 4, 15, and 19 and the purport of the whole pleadings is added.

A) The number of calls made by the Plaintiff to an outside person, including D, during the period from October 2, 2015 to April 20, 2016, is as follows.

A person shall be appointed.

B) In the process of investigating the Defendant’s Fair Management Team, the Plaintiff stated the relationship with the other party to the said currency as follows.

A person shall be appointed.

다) C은 검찰조사 당시 '2013. 5.경 원고의 소개로 D을 알게 되었는데, D이 처음에는 경마에 대해 묻지 않다가 나중에는 몇 가지 물어보았다. 2013. 10.경 D이 전화하여 "내가 네 펜인데, 응원도 할 겸 과천 경마장에 놀러 가겠다. 괜찮은 말이 있으면 그 말에 대한 정보를 좀 알려달라"고 하여 "저는 다른 말에 대해서는 잘 모르고 모든 말을 열심히 탑니다"라고 대답하였다. 그 후 2013. 12.경을 비롯하여 D이 여러 차례 전화하여 "괜찮은 말이 있으면, 정보를 알려달라"고 하기에 앞서와 마찬가지로 모든 말을 열심히 탄다고 답했더니 그 후로는 더 이상 묻지 않았다. 2014. 1.경 원고와 D을 함께 만난 자리에서도 D이 괜찮은 말의 정보가 있냐고 묻기에 제가 "다른 말에 대해서는 모르고 제가 타는 말을 열심히 탄다"고 대답했고, 옆에 있던 원고도 저를 가리켜 "쟤 다 열심히 타는 애야"라고 말했다.'라는 취지로 진술하였다.

D) L was prosecuted as the charge of violating the Korean Racing Act that “Y provided horse information after having L transfer the horse information to the account in the name of J in return for an illegal solicitation from Y, which was in a scopic relationship with the Defendant,” L was sentenced to the conviction of 8 months of imprisonment (suwon District Court Decision 2013No2621) at the first trial on June 4, 2013, and the appellate trial (suwon District Court Decision 2013No2621) was sentenced to a suspended sentence of 2 years of imprisonment on August 29, 2013 and the above judgment became final and conclusive. As such, L’s provision of horse information to Y to the account of J in the past, while having L transfer the money to the account of J in the scopic relationship with Y, the reason was that L was a threat to the scopic party.

E) At the time of the hearing of the Defendant’s Standing Committee, the Plaintiff stated that the case of intimidation by J was dismissed due to J, even though he was aware of detailed attitude, and that the case was dismissed. E and D were low, but they are in a sound horse race track.

F) D has a record of criminal punishment by participating in the past private horse racing.

2) The following facts and circumstances acknowledged in addition to the purport of the argument as a whole in the above facts and circumstances, namely, D and E, among the counter-party to the Plaintiff’s call, appear to be a horse customer. In particular, D, as a person who had been engaged in a horse racing in the past, sought information on the racing and horse in several times through the Plaintiff and C, and it is natural to view that the J had a record of threatening to use money and goods for the horse information, and that the Plaintiff had been aware of this fact. In light of the fact that the Plaintiff and the Plaintiff made a large number of calls and a large number of calls over seven months for these and a large number of months, even if considering the possibility of an internal telephone or other daily currency for the same purpose, it would be extremely frequent to doubt the possibility of providing the horse information, it is sufficient to view that the frequent call with the outside party, which is the reason of Disposition No. 1 of this case, would have an adverse impact on the sound enforcement of Article 108 subparag. 23 of the Mama Regulation. 23.

B. Grounds for Disposition No. 2 of this case

1) The following facts are acknowledged when each of the aforementioned evidence reveals that Gap evidence No. 11, Eul evidence No. 16 and the purport of the whole pleadings is added.

A) On April 14, 2009, a total of KRW 50 million was remitted from the Plaintiff’s account under the name of the Plaintiff to the D’s account. On November 25, 2009, the sum of KRW 50 million was deposited from the D’s account to the Plaintiff’s account under the name of the Plaintiff. Moreover, on May 23, 2013, the Plaintiff leased the instant vehicle (hereinafter “the instant vehicle”) with KRW 81,90,00 through the external laur with which D’s private penalty was introduced. During that process, D paid KRW 22,770,000 for the Plaintiff’s lease deposit.

B) On May 8, 2015, an amount of KRW 30 million was remitted from the Plaintiff’s account to M’s account under the name of “M-based investment”. From June 17, 2013 to February 3, 2016, the sum of KRW 12,200,000 was deposited from M’s account to the Plaintiff’s name. The details are as follows.

A person shall be appointed.

C) In the process of investigating the Defendant’s Fair Management Team, the Plaintiff stated the aforementioned monetary transaction relationship with D and M as follows.

A person shall be appointed.

D) At the time of the Defendant’s hearing on April 14, 2009, the Plaintiff is a loan to D on April 14, 2009, question as to whether the deposit of KRW 50 million is a loan, or whether the deposit of KRW 50 million is a stock investment. The Plaintiff told that the deposit of KRW 2750,000 was made at the time of the first question. The Plaintiff responded to the Defendant’s answer that it was made at the time of the first question as follows: “I would like to make a false statement because I would like to say that I would like to have borrowed money to others without any reason, and I would like to receive KRW 300,000 from D for 9 months from the time of remitting KRW 50,000,000,000,000, and later, D would have received KRW 2750,000 for 30,000,0000 for 30,000.

2) In full view of the following facts and circumstances acknowledged in addition to the purport of the entire pleadings, it is reasonable to view that the monetary ex officio facts with the Plaintiff, D, M, etc., which are the grounds for the instant disposition No. 2, are acts that undermine or interfere with the fairness of horse racing (Article 108 subparag. 22 of the Enforcement Rule of the horse Racing) or neglecting the duty of care (Article 108 subparag. 36 of the Execution Rule).

A) Around 2011, the Defendant enacted the Code of Conduct for Persons Related to Mar. 201, but revised it as the Code of Conduct for Persons Related to Mar. 2013, 201, and each of the said Code of Conduct provides the standards of conduct to be observed by persons related to the racing, such as Marin, 201, lighting, and water.

B) According to Article 15 of the Code of Conduct for the persons engaged in the racing and horse, the persons engaged in the racing and horse shall not borrow money from other persons related to the racing and horse, persons related to their duties, or third parties who are likely to undermine the fairness of horse racing, or shall not lend money to them, and, in extenuating circumstances, if they report to the grievance or it is unclear whether the person violated the above order or not, he/she shall act accordingly after consulting with the grievance counselor. Since most of the details of the Plaintiff’s monetary transactions are acts after the code of conduct for the persons related to the racing and horse was enforced, the Plaintiff is obligated to act accordingly after reporting to or consulting with the grievance counselor.

C) As a steering teacher entered into a contract for the management of racing and horse, he/she is in a position that may directly affect the results of racing because he/she directly conducts training, lighting, and participation in racing. In cases where a steering teacher lends money to a third party, such as a person related to racing and horse or a horse passenger, he/she may be doubtful whether the relationship between the steering teacher and the passenger, etc. with the third party, is not likely to have an unfair influence on racing results. In cases where the steering teacher suffers damage due to the failure to recover the money lent to a third party, there is an economic difficulty to prevent unlawful acts, such as the operation of the riding, etc., due to the increase of risk.

Therefore, it will be said that the assistant teacher has a duty of care not to engage in any monetary transaction that threatens the fairness of horse.

D) Nevertheless, as seen earlier, the Plaintiff, as a horse with a private horse, exchanged KRW 2,70,000 between D and themselves, who sought horse information from oneself and C several times, and had D pay the lease deposit equivalent to KRW 22,700,000 on behalf of the Plaintiff. The Plaintiff, who was subject to a disposition by violating the Korean Racing Association Act, was given KRW Mado Do, who was engaged in work related to horse racing.

E) The Plaintiff asserted that it was merely repaid money for a monetary transaction with D and M. However, even if the Plaintiff’s assertion is true, it is sufficient to deem that such monetary transaction causes fear or impediment to the fairness of horse racing. Therefore, it cannot be deemed unfair to use it as the ground for the instant disposition. Moreover, in light of the fact that the Plaintiff did not prepare a document of disposition, such as a certificate of borrowing with respect to the monetary transaction at issue, and that the Plaintiff reversed the Defendant’s statement regarding the date, time, contents, etc. of the monetary transaction with D during the process of the Defendant’s fair management team investigation to the procedure of the standing committee hearing, it is difficult to believe the Plaintiff’s assertion on the monetary loan with D, etc. as it is.

C. Grounds for Disposition No. 3 of this case

1) The following facts are acknowledged if the purport of the entire argument is added to each of the above evidence.

A) From November 4, 2009 to February 28, 2016, the Plaintiff deposited 134,440,000 cash or cashier’s checks into its account using cash withdrawal machines over 48 occasions.

B) In the process of investigating the Defendant’s Fair Management Team, the Plaintiff stated the above details of cash transfer as follows.

A person shall be appointed.

C) At the time of holding a hearing by the Defendant’s Standing Committee, the Plaintiff was punished by an average of KRW 6-7 million in a month during which he/she was sentenced to KRW 6-7 million. In 2012, he/she began to engage in the first time, and he/she was punished by KRW 500,000 in a first month since January 2016 as he/she had a good record, and he/she was punished by KRW 500,000 in a first month.” On 48 occasions, the Plaintiff respondeded that he/she received money from 2009 to 201 in return for a question about asking the source of money deposited in cash, etc., and that he/she received money from credit card gambling-related money from 209 to 2011, and that he/she had sold apartment land with the first time in 2015.

2) The above facts are as follows: ① even if the Plaintiff’s statement was made on or before November 2012, the average amount of KRW 6-7 million was imposed on the day before the Plaintiff’s entry in Gap evidence No. 5 and the entire pleadings; ③ thereafter, from January 2016, income was low and average of KRW 500,000 was imposed on the first month from January 201, and there was no special income source; ② the Plaintiff’s income was deposited into the Plaintiff’s account under the name of “the Zzzzzzzzzzzzzzzzzine”; ③ the Plaintiff’s income acquired as an assistant teacher is also deemed to have no special reason to keep it in cash and deposit it later; ③ from November 4, 2009 to February 28, 2016, it can be viewed that the Plaintiff’s cash deposit was not made on the account of 500,000 won and 404,000,000,000 won.

D. Grounds for Disposition No. 4 of this case

1) The following facts are acknowledged when each of the aforementioned evidence reveals that Gap evidence No. 6 was added to the purport of the whole statement and pleading.

A) The Plaintiff entrusted the management of N and P, P,C, Q, etc. AB, P, Q, etc. owned by N and 0 Ma, and reported the details of the said M&M to Rma owners (registration-related matters, collection of food, health conditions, etc.).

B) The Plaintiff stated the following facts in the process of investigating the Defendant’s Fair Management Team.

A person shall be appointed.

2) In addition to the purport of the entire pleadings, the following circumstances revealed in the above facts, i.e., (1) only the light teacher who has entered into a horse entrustment management contract, may delegate or appoint a horse racing business as an agent (Article 15(1) of the Morse Enforcement Rule), disease, long-term travel, or other reasons, etc., which may not be performed on the part of the chairperson, after prior approval of the chairperson, allow a person other than the field teacher to delegate or represent the horse racing business (Article 15(3) of the Morse Regulation), and (2) The act of receiving reports from the plaintiff about the matters concerning Morse N, OM and racing owned by the plaintiff or giving instructions necessary for the management of the racing racing, etc. from the plaintiff, and (3) it is reasonable to see that the act by a person other than the field teacher was not permissible to act on the part of the chairperson, or that there is no reason to see that the act by the plaintiff constitutes a person other than the chairperson's duty of care, and it is reasonable to 2) to view that it is likely to interfere with the fairness of the plaintiff.

E. Sub-decision

Therefore, the plaintiff's assertion that there is no ground for the disposition of this case is without merit.

4. Determination as to the procedural illegality

A. The plaintiff asserts to the effect that Article 105 of the Gyeongma Enforcement Rule provides the defendant with unlimited authority to investigate facts, which is null and void because it excessively infringes on the freedom of privacy of the persons related to the racing and horse, and the disposition of this case is null and void since it was issued according to the findings of the investigation conducted based on the invalid provision.

B. Article 105 (1) of the regulations on the implementation of horse racing provides that "the chairperson of the defendant shall notify the date, time, place, and reason for the investigation in writing or by wire or wireless means and may request the attendance of the person in charge of the racing-mael and the attendance of the person in charge of the communication of personal portable telecommunications terminals, etc. and the submission of data on financial transaction details, etc." Article 105 (2) provides that "the person in charge of the race-ma who is requested to attend or submit data pursuant to paragraph (1) shall comply with the request without delay," and Article 108 (2) of the same regulations provides that "the person in charge of the race-ma who fails to comply with the request for attendance or submission of data under Article 105 (2) may impose sanctions against the person in charge of the race-ma from reprimand to the cancellation

C. We examine the following circumstances, which are acknowledged in addition to the overall purport of the arguments, i.e., (i) the public interest needed to secure the fairness of horse due to the speculative nature of horse itself; (ii) the Korean Racing Association Act, the Enforcement Decree of the same Act, and the regulations on the implementation of horse racing, etc. provide for sanctions, such as criminal punishment in cases where a racing-related person commits an act detrimental to the fairness of horse racing; and (ii) since the act detrimental to the fairness of horse racing, such as ordinary riding, is closely conducted between insiders, it is very difficult for the defendant to find the existence of the act unless the investigation procedure conducted by a criminal justice agency is carried out in good faith; and (iii) accordingly, it is deemed necessary to hold the authority to request the submission of data, such as communication data and financial transaction details, with the authority to investigate the person related to the racing-ma in order to achieve effectiveness of the defendant's internal investigation procedure; and (iv) Article 108 subparag. 28 of the regulations on the implementation of horse racing, if there are justifiable reasons, opening the possibility of sanctions even if not complying with the defendant's request.

5. Determination on whether or not to deviate from or abuse discretionary power

A. Whether to take a disciplinary measure against a person subject to disciplinary action is at the discretion of the person having the authority to take the disciplinary measure, and thus, the disciplinary measure is unlawful only when it is deemed that the person having the authority to take the disciplinary measure has abused the discretionary authority vested in the person having the authority to take the disciplinary measure because the disciplinary measure significantly lacks validity under social norms. To deem that a disciplinary measure has considerably lost validity under social norms, depending on specific cases, the content and nature of the offense causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for a disciplinary measure, etc. should be considered as cases where it can be objectively and clearly deemed that the disciplinary measure is objectively unreasonable when determining the disciplinary measure based on the comprehensive consideration of various factors, such as the content and nature of the offense causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, and criteria for a disciplinary measure (see

B. In light of the above legal principles, comprehensively taking account of the following circumstances acknowledged by adding the purport of the entire arguments to the above evidence, the instant disposition cannot be deemed objectively unreasonable. Thus, the Plaintiff’s assertion on this part is without merit.

1) Article 47(1) of the Korean Racing Association Act imposes an obligation on the Defendant to take necessary measures to maintain the order of horse race tracks and ensure the fairness of horse race tracks. Considering the speculative nature of horse itself, the strict application of the disciplinary provisions is required to the acts that undermine the fairness of horse racing.

2) Since a lighting teacher is in a position to have a direct and significant influence on the racing result, more fairness than other racing-related persons is required.

3) Article 14(3) of the Korean Racing Association Act provides that the Defendant shall determine the requirements and cancellation of a license of a assistant teacher, so the Defendant has broad discretion as to whether to cancel a license.

4) If a light teacher falls under any of the subparagraphs of Article 108 of the regulations on the implementation of horse racing, the Defendant may revoke his/her license, suspend his/her license, prohibit him/her from participating in horse racing or suspend him/her from participating in horse racing. However, pursuant to Article 102(1)4 of the regulations on the implementation of horse racing, the Defendant may issue a disposition to revoke his/her license or suspend his/her license, prohibit him/her from participating in horse racing, or suspend him/her from participating in horse racing, on condition that he/she would engage in any conduct detrimental to the provision of information on racing or the fairness of racing.

5) Since the degree of the Plaintiff’s misconduct, which became the ground for the instant disposition, is not negligible, the instant disposition revoking the Plaintiff’s assistant teacher’s license, constitutes an inevitable measure for the soundness and fairness of the horse, and cannot be deemed to have remarkably lost validity under social norms.

6. Conclusion

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