2018Guhap229 The revocation of disposition excluding the Superintendent General

A

Deputy Prime Minister and Minister of Education

August 10, 2018

September 12, 2018

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of excluding the appointment of a principal who was a principal to the Plaintiff on January 24, 2018 is revoked.

1. Details of the disposition;

A. The Plaintiff was appointed as a teacher of a junior high school on June 1, 1976, and was promoted to and appointed as an assistant principal of a junior high school on September 1, 2005, and thereafter on March 1, 2014, and served as the principal of a junior middle school from September 1, 2017.

B. On December 28, 2016, the Superintendent of the Provincial Office of Education at Sejong-do, on the ground that the Plaintiff was subject to heavy disciplinary action and disciplinary surcharge (three times) imposed on the Plaintiff due to the violation of the duty of good faith and the duty of maintaining dignity, and thus, the Plaintiff was released from position pursuant to Article 73-3(1)3 of the State Public Officials Act.

C. On March 31, 2017, the Superintendent of the Office of Education of Gyeongnam-do, upon the resolution of the Disciplinary Committee, issued a disposition imposing a surcharge of KRW 935,100, which is three times the amount of disciplinary surcharge under Article 78-2 of the State Public Officials Act, on the ground that he/she violated his/her duty of good faith and violates his/her duty of care, on the ground that he/she violated his/her duty of care and embezzlement of travel expenses, abuse of discretion to manage the public educational official’s service, undue criminal investigation agency, verbal sexual harassment against his/her employees, improper speech and behavior, rejection of the execution of the school accounting budget, unauthorized closure of an emergency shelter, dismissal of the head of the department of planning of school affairs without consultation with the Committee, absence of communication on the decision of the school educational administration, violation of the right to study due to changes in the academic schedule of the opening date.

D. On April 6, 2017, the Plaintiff, who was dissatisfied with the instant disciplinary action, claimed an appeal review to the Teachers’ Appeal Committee, but was dismissed.

E. On July 31, 2017, the Plaintiff filed a lawsuit seeking the removal from position and the revocation of the instant disciplinary action with the Changwon District Court (2017Guhap8777) and applied for suspension of execution. On August 22, 2017, the said court rendered a decision to suspend the execution of “the suspension of its effect until 30 days after the said decision was rendered”.

F. On November 9, 2017, the Plaintiff submitted to the Superintendent of the Provincial Office of Education materials for deliberation, such as a letter of wishing to be appointed as a principal of the school, and on January 11, 2018, the Superintendent of the Provincial Office of Education recommended the Plaintiff to be appointed as a principal of the school.

G. On January 24, 2018, the Defendant excluded the Plaintiff from the person recommended to recommend the appointment of the principal of a school (hereinafter “instant disposition”).

H. The Plaintiff, who is dissatisfied with the instant disposition, filed an appeal review with the Appeal Commission for Teachers, but was dismissed on July 18, 2018.

I. On June 27, 2018, the Changwon District Court rendered a judgment dismissing the plaintiff's claim on the ground that "the grounds for the disciplinary action in this case are recognized as most of the grounds except for a part of the grounds for the disciplinary action in this case, and there is no violation of law of deviation or abuse of discretionary power," and the plaintiff appealed and

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, 8, 12 through 14, 20 (including branch numbers), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) As the Defendant did not present the grounds and reasons for the instant disposition at the time of the instant disposition, the instant disposition is procedural errors in violation of Article 23(1) of the Administrative Procedures Act.

2) Although the Defendant decided to suspend the execution of the instant disciplinary action, the Defendant’s exclusion of the Plaintiff from the person whose appointment of the principal is recommended to be appointed as the principal in consideration of the above disciplinary action is unlawful against the validity

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether procedural illegality is procedural

A) According to Article 3(2)9 of the Administrative Procedures Act, “The Administrative Procedures Act shall not apply to matters that are deemed difficult or unnecessary to undergo administrative procedures due to the nature of the pertinent administrative action, such as disciplinary action under the Acts and subordinate statutes related to the personnel affairs of public officials, and matters prescribed by Presidential Decree as those that have undergone procedures equivalent to administrative procedures.” Accordingly, Article 2 subparag. 3 of the Enforcement Decree of the Administrative Procedures Act provides for “matters concerning disciplinary action and other measures under the Acts and subordinate statutes related to the personnel affairs of public officials” as one of “matters prescribed by Presidential Decree” under Article 3(

B) In light of the following, the selection of middle-standing teachers is an area of personnel policy with a broad discretion to the person who has the authority to appoint and dismiss the principal, and it is not necessarily necessary to place the principal on the ground that the applicant for the middle-standing teacher does not have any grounds for disqualification, it is reasonable to view that a disposition excluded from the person who has the authority to recommend the appointment of the principal constitutes a disciplinary action or other disposition under the Acts and subordinate statutes related to the personnel affairs of the public official, which is difficult to undergo administrative procedures due to the nature of the relevant administrative action, and therefore, the Administrative Procedures

2) Whether the instant disposition is unlawful against the validity of the court’s decision suspending execution

A) Article 29-2(2) and (3) of the Public Educational Officials Act provides that the term of office of the principal of a school shall be four years and he/she may be reappointed once, and Article 29-2(1) through (3) of the same Act and Article 9-5(1) of the Decree on the Appointment of Educational Officials may again appoint the principal of a school who has completed the first term of office unless any special ground for disqualification exists. Article 3 of the Guidelines on the Implementation of the principal and the principal’s term of office delegated to him/her provides that the principal of a school may again appoint the principal of a school who has completed the first term of office. Article 3 of the Guidelines on the Implementation of the principal and the principal’s term of office may not require the principal of a school to deliberate on whether he/she has a special ground for disqualification for the principal of a school (excluding a person who has been subject to disciplinary action due to a wrongful act. In light of the form and content of the above statutes, the principal’s ability to provide guidance and discretion to the principal and the principal of a school.

B) Meanwhile, even if a decision to suspend the execution of a disciplinary action was made, the effect of the disciplinary action is suspended, and it does not lose the fact of misconduct subject to the disciplinary action itself. Therefore, even if the fact of misconduct and illegality are determined as one of the criteria for the examination of the principal, it is difficult to deem that the decision to suspend the

C) Therefore, even if the Defendant considered the instant disciplinary action as one of the criteria for examining the Plaintiff’s proposal to be appointed as the principal of the school, it is difficult to view the instant disposition as a violation of a decision to suspend the execution, and there is no other circumstance to acknowledge that the instant disposition was in violation of the law of deviation and abuse of discretionary authority. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

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

The presiding judge, the judge and the defendant

Judges Go Young-sik

Judges Spot

1) The Plaintiff stated the date of disposition as March 1, 2015, but this date is the date of personnel announcement. The Defendant, on January 24, 2018, indicated that the Plaintiff excluded the Plaintiff from the person subject to a recommendation for appointment as the principal of a school (see Evidence A, No. 17, No. 2). Thus, the date of disposition shall be corrected as January 24, 2018.

A person shall be appointed.

A person shall be appointed.