2017Guhap6986 Revocation of Disposition of Removal

Park ○

Seogpo-si

Law Firm Doz.

Attorney Lee In-bok

The superintendent of Gyeonggi-do

Litigation Performers;

Law Firm Doz.

Attorney Lee In-bok

August 9, 2018

September 6, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s removal disposition against the Plaintiff on April 12, 2017 is revoked.

1. Details of the disposition;

A. The Plaintiff was appointed as a teacher at A elementary school on March 1, 200 and worked at B elementary school since March 1, 2011 to February 28, 2014, and worked at C elementary school from March 1, 2014.

B. From February 17, 2014 to March 21, 2014, the Board of Audit and Inspection conducted an audit of “the operational status of elementary, middle, and high school after school”, and filed a complaint with the investigating agency by requesting the Plaintiff to take a disciplinary action against the Plaintiff at the time the Plaintiff worked at B elementary school, instead of preparing a false school site at the school site at the time of his/her work at B, and filing a false complaint with the investigating agency. The Plaintiff also received KRW 42,115,00 for the after school tuition fee at KRW 22,20,00 for the after school site at KRW 22,206,00 for the first school site at the time of his/her work at B, and the Plaintiff also received KRW 42,115,00 for the after school site at the time of his/her false school site. The grounds for disciplinary action against the Plaintiff.

C. Accordingly, on September 25, 2014, the Defendant requested the Gyeonggi-do General Disciplinary Committee for Public Educational Officials (hereinafter “Disciplinary Committee”) to make a disciplinary decision against the Plaintiff due to the foregoing disciplinary cause, but the Plaintiff requested a review on the audit results on September 29, 2014. On October 7, 2014, the Defendant requested that the Plaintiff withhold a disciplinary decision until the date of notification of the decision for review requested by the Board of Audit and Inspection with respect to the Audit and Inspection Division.

D. On the other hand, the Plaintiff was guilty on August 18, 2016 in the case of requesting formal trial against the following facts: (a) the court of first instance rendered a judgment not guilty on the charge of deceiving KRW 7,455,00 for instructors at after-school schools; and (b) the case of requesting formal trial (Ji Government District Court Decision 2015DaDa18566; hereinafter referred to as “relevant criminal case”).

E. A prosecutor appealed to the above judgment as the District Court Decision 2016No225. The appellate court determined that the Plaintiff was granted KRW 5,475,00 by deceiving B elementary school, thereby establishing a crime of fraud. On November 11, 2016, the lower court reversed the lower judgment and sentenced KRW 3,00,000,000. The Plaintiff appealed to the said appellate judgment as Supreme Court Decision 2016Do19182.

F. On November 10, 2016, the Board of Audit and Inspection rendered a decision to dismiss the Plaintiff’s request for reexamination on the audit results, and the Defendant notified of the foregoing decision for reexamination, again requested the Disciplinary Committee to take a disciplinary action against the Plaintiff on December 2, 2016, and the reasons for such request for a disciplinary action are as follows.

A person shall be appointed.

A person shall be appointed.

G. On December 27, 2016, the Disciplinary Committee decided to suspend a resolution in order to confirm the result of the final appeal on the relevant criminal case. The Supreme Court’s final appeal by the Plaintiff on March 16, 2017 regarding the relevant criminal case.

On March 31, 2017, the appellate court's judgment recognizing the establishment of a crime of fraud became final and conclusive, and on March 31, 2017, rendered a decision on the grounds for the above disciplinary decision that "the defendant, a criminal fact in the final and conclusive judgment of the relevant criminal case, acquired KRW 5,475, and00 from school after school" (hereinafter referred to as "the misconduct of this case") that the plaintiff could be recognized, 1), removal of the plaintiff and disciplinary surcharge ( KRW 16,425,00) against the plaintiff.

H. On April 12, 2017, the Defendant removed the Plaintiff from office and imposed three times the surcharge for disciplinary action upon the Plaintiff (hereinafter “instant disposition”).

(i) On May 11, 2017, the Plaintiff filed a petition with the Appeal Commission for a teacher’s appeal against the instant disposition and the said disposition imposing three times the surcharges for disciplinary action. On August 9, 2017, the Appeal Commission for Teachers accepted part of the petition for review of the original intent, and dismissed the petition for cancellation of the instant disposition, and made a decision to revoke the disposition imposing three times the surcharges for disciplinary action.

[Grounds for Recognition] In the absence of dispute, each entry in Gap evidence 1 to 13, Eul evidence 1 and 2 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition should be revoked on the following grounds.

1) procedural defect.

According to Article 51(1) of the Public Educational Officials Act, where the head of an educational institution, etc. deems that a public educational official under his/her control falls under any disciplinary cause under the subparagraphs of Article 78(1) of the State Public Officials Act, he/she shall, without delay, request the disciplinary committee having jurisdiction over the relevant disciplinary case, and pursuant to Article 6(7) of the Decree on Disciplinary Action against the Educational Officials, the person having the authority to request a disciplinary decision shall send a copy of the written request for a disciplinary decision under paragraph (1) to the disciplinary suspect simultaneously with the request for a disciplinary decision by the public educational official. However, the defendant sent a copy of the written request for the disciplinary decision by the Board of Audit and Inspection on September 25, 2014, which reserved the procedure for the request for a disciplinary decision by the Board of Audit and Inspection, only to the plaintiff on December 2, 2016, with regard to the subsequent disposition, only send the written request for the disciplinary decision by the public educational official

2) substantive defect

A) Non-existence of a disciplinary cause

The instant misconduct, which is the grounds for disciplinary action against the Plaintiff alleged by the Defendant, does not exist.

B) A deviation from and abuse of discretionary power;

Considering the fact that the instant misconduct is recognized, the instant misconduct constitutes “where the degree of misconduct is weak and has elapsed,” and the Plaintiff’s tuition fees are 22,460,00 won for instructors who did not receive 1,496 hours in total, and less than 1,496 hours in total, and 22,460,000 won, taking into account the fact that the Plaintiff directed students by taking charge of school classes other than regular classes, and that there are grounds for mitigation by obtaining a large number of official commendation, the instant disposition deviates from and abused the scope of discretionary authority as it considerably loses validity under social norms.

(b) Relevant statutes;

As shown in the attached Form.

(c) Determination.

1) Determination on procedural defects

Article 6(7) of the Decree on Disciplinary Measures against Public Educational Officials cited by the Plaintiff as the ground for this part of the claim provides that the person entitled to request guidance shall, at the same time, send a copy of the request for disciplinary measures against public educational officials, at the same time, to the person suspected of disciplinary action, so as to guarantee a discipline accused person the opportunity to actually exercise his/her right of defense by neglecting the grounds for disciplinary measures subject to the request for disciplinary measures. As seen earlier, the Disciplinary Committee decided on December 2, 2016, "Suspension of the decision of disciplinary action" in order to verify the result of the final appeal related to the criminal case after the Defendant received the request for disciplinary measures from the Defendant, and during this process, the fact that the Defendant sent the Plaintiff a copy of the request for disciplinary measures on December 2, 2016 to the Plaintiff is not a dispute between the parties.

According to the Gap evidence No. 11, although the notice of the decision was made in the form of "Notice as to the result of the resolution," the "Suspension of the resolution" means that the decision was temporarily dealt with the time of the resolution without any determination as to the existence of the grounds for disciplinary action and the determination of the disciplinary action. Thus, the request for a disciplinary decision on December 2, 2016 should be deemed to be valid even after the suspension of the resolution.

Therefore, in the event that the cause for withholding a disciplinary decision ceases to exist, the defendant is sufficient to notify the person suspected of the disciplinary decision of the date and time, and there is no obligation to repeatedly send copies of the written request for a disciplinary decision. Therefore, the first plaintiff's assertion on the different premise is rejected.

2) Determination on substantive defects

A) Whether a cause for disciplinary action exists

In an administrative litigation, the fact that the criminal judgment which was established in a criminal trial is not bound by the facts established in the criminal trial, but even if it is found to be guilty of the same facts is a flexible evidence in the transmission of the administrative office. Thus, it cannot be recognized that the criminal judgment is opposed to this, unless there are special circumstances to deem it difficult to adopt a factual judgment in light of other evidence submitted in the administrative trial (see Supreme Court Decision 98Du10424, Nov. 26, 199, etc.).

As seen earlier, the Plaintiff was found guilty of committing a crime committed by deceiving 5,475,00 won for the purpose of taking school after school as a tuition fee on the basis of the falsely prepared class days, and the judgment of conviction became final and conclusive. The Plaintiff prepared a false class page. Since there are no special circumstances to make it difficult to adopt a judgment of conviction on the above final and conclusive criminal judgment, the instant misconduct, which is the grounds for the disciplinary action, is deemed to exist. Accordingly, this part of the Plaintiff’s assertion on a different premise, is rejected.

B) Whether to deviate from or abuse of discretionary power

When a disciplinary action is imposed on a person subject to disciplinary action who is a public official, it is at the discretion of the person having authority to take the disciplinary action. However, if the person having authority to take the disciplinary action is deemed to have abused the discretionary authority that has been entrusted to the person having authority to take the disciplinary action because the person having authority to take the disciplinary action significantly lacks validity by social norms, the disciplinary action against the person having authority to take the disciplinary action shall be deemed to be unlawful. The disciplinary action against the person having authority to take the disciplinary action shall be deemed to have been clearly unfair, in full view of various factors, such as the content and nature of the facts causing the disciplinary action, administrative purpose to be achieved by the disciplinary action, criteria for disciplinary action, etc. according to specific cases (see Supreme Court Decision 2002Du6620, Sept. 24, 2002).

In full view of the following circumstances, as seen earlier, based on the content of the instant misconduct and the relevant statutes, and the respective statements as well as the purport of the entire pleadings, as seen earlier, the instant disposition was objectively and objectively unreasonable, and thus deviates from and abused the discretion of disciplinary action, as it is obviously unreasonable in light of social norms, even if considering the various circumstances alleged by the Plaintiff.

① After-school programs are designed to reduce private education expenses by resolving various learning needs and childcare needs, to implement educational welfare by relaxing educational gap arising from the polarization of society, and to promote the development of local educational culture linked to schools, families, and society, and to establish and develop the system, a transparent and fair execution of the required financial resources must be premised on the implementation of the system. However, the instant misconduct, however, was not prepared for about three years to verify the contents of after-school programs, which is the only material to verify the contents of the curriculum after-school programs, so that it could not be objectively specified in the scope of after-school curriculum to be properly executed because it does not fit the actual contents of the curriculum (in fact, the instant misconduct conducted after-school programs more time than those recorded in the school site, and thus, it should be deemed that there were no objective methods to verify the Plaintiff’s assertion that the Plaintiff was paid less time-school programs than those provided in the school site.)

② The instant misconduct constitutes a case where there is an intentional act in the relevant criminal case to the extent that the establishment of a crime of fraud is recognized. Article 2 of the former Rules on Disciplinary Action, etc. on Public Educational Officials (attached Table 2) provides that “the criteria for disciplinary action” shall be subject to removal for an intentional act that disturbs the accounting order where the degree of misconduct is serious and intentional.

③ Although the Plaintiff had worked in good faith for about 18 years as a public educational official, and had about 10 times work experience including minister commendation, considering the gravity of the instant misconduct and overall impact on public education, it is difficult to deem that the instant disposition considerably lost social validity on the ground that it did not reduce disciplinary punishment pursuant to Article 4(1)2 of the former Rules on Disciplinary Action, etc. of Public Educational Officials.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

Judges Dud Jin-jin

Judges Full-time;

Judges Kang fixed-term

1) According to the statement in the judgment of Disciplinary Committee No. 2, “A” 3. According to the reasoning of the judgment of Disciplinary Committee, the instant misconduct among the grounds for a request for disciplinary decision.

Part other than the rest (1) of the school day by drawing up a false school day on the direction of the principal ○○; and

390,000 won, more than the tuition fees under this section, shall be paid to Yellow ○ and shall be used for personal purposes.

(2) Of the facts that the Plaintiff received after-school tuition fees, the part exceeding 5, 475, 00 won shall be subject to disciplinary action.

It appears that it was excluded from the grounds (the Appeal Committee for Teachers also considered the scope of judgment of the Disciplinary Committee as such.

C) Accordingly, in the following cases, I would like to examine only the parties’ assertion on the instant misconduct.

Site of separate sheet

Relevant statutes

/Gu State Public Officials Act (amended by Act No. 13288, May 18, 2015)

Article 56 (Duty of Good Faith)

All public officials shall observe Acts and subordinate statutes, and perform faithfully their duties.

Article 78-2 (Disciplinary Additional Charges)

(1) Where a resolution on disciplinary action against a public official is requested pursuant to Article 78, money, valuables and entertainment.

(In the case of giving or receiving (replacement), embezzlement (misappropriation or diversion) of public funds, or embezzlement (use) of public funds, money, valuables and entertainment in addition to the relevant disciplinary action.

A resolution to impose disciplinary surcharges within five times the amount received, the amount embezzled, and the amount misappropriated, to the Disciplinary Committee.

section 32 of this title.

Article 83-2 (Prescription of Grounds for Disciplinary Action and Imposition of Disciplinary Additional Charges)

(1) A request for disciplinary resolution, etc. shall be made within three years from the date of occurrence of grounds for such disciplinary action, etc.

A person shall be appointed.

No one shall fall under any of the cases after five years.

Educational Officials Act

Article 51 (Requests for Resolution on Disciplinary Action)

(1) The heads of educational institutions, educational administrative agencies, local governments, or educational and research institutions shall provide their education and public services.

The grounds for disciplinary action referred to in the subparagraphs of Article 78 (1) of the State Public Officials Act and Article 69 of the Local Public Officials Act;

Where it is deemed that he/she falls under the grounds for disciplinary action under each subparagraph of paragraph (1), the relevant disciplinary officer without delay.

A resolution on disciplinary action shall be requested to the Disciplinary Committee having jurisdiction over the case: Provided, That the relevant disciplinary case shall be requested.

If the disciplinary committee is established in a superior agency, the head of that superior agency.

A request for a resolution shall be filed.

Decree on Disciplinary Action against Public Educational Officials

Article 6 (Requests for Disciplinary Action)

(7) A person entitled to request a disciplinary decision shall make a copy of a request for disciplinary decision under paragraph (1).

A discipline accused person shall be forwarded to him/her: Provided, That where the discipline accused person refuses to accept the notification, the discipline accused person shall be sent.

this paragraph shall not apply to the case.

Article 15 (Determination of Disciplinary Action)

When the Disciplinary Committee makes a decision on a disciplinary case, it shall take into account the details of the request for disciplinary action and disciplinary action before the discipline accused person's behaviors, service performance, and other circumstances.

director Regulations concerning disciplinary action, etc. of the former public educational official (amended by Ordinance of the Ministry of Education No. 61 April 9, 2015)

for the purposes of this section)

Article 2 (Criteria for Disciplinary Action)

The Disciplinary Committee on Public Educational Officials under Article 2 (1) of the Decree on Disciplinary Action against Public Educational Officials (hereinafter referred to as the "Disciplinary Committee") shall decide on disciplinary action in accordance with the disciplinary criteria in attached Table, in consideration of the type of misconduct by a discipline accused person, degree of misconduct, degree of misconduct and degree of negligence (a serious reason), and the degree of penance, degree of penance, and other circumstances.

Article 4 (Reduction of Disciplinary Action)

(1) Where a person for whom a disciplinary decision has been requested falls under any of the following subparagraphs, the Disciplinary Committee may reduce disciplinary action: Provided, That where a public educational official has received a disciplinary action or warning pursuant to these Rules, the public service prior to the disciplinary action or warning shall be excluded:

1. A meritorious service awarded a decoration or medal under the Awards and Decorations Act;

2. Official prizes awarded to the Prime Minister or a higher official commendation pursuant to the Regulations on the Official Commendation of the Government (in cases of teachers, referring to one of them);

The Vice Minister or higher (including the head of an agency equivalent thereto) or the Superintendent of an Office of Education or higher;

official commendation given to him / her /

3. A meritorious service selected as an exemplary public official pursuant to the Regulations for Exemplary Officials;

(2) Notwithstanding paragraph (1), the disciplinary action shall not be mitigated in any of the following cases:

1. Grounds for disciplinary action, the period of prescription of which is five years pursuant to Article 83-2 (1) of the State Public Officials Act;

applicable misconduct in the case of

2. Cheating in receiving money and valuables (or giving and receiving samples) related to his/her duties prescribed in Article 2 (2) of the Enforcement Rule of the Public Officials Disciplinary Decree;

3. Cheating related to the results of a student, such as leakage of examination questions or fabrication of the results of a student.

Unfair correction of school life records (Correction)

4. Where he/she has become subject to disciplinary action due to any of the following crimes or acts:

(a) Sexual crimes under Article 2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

(b) Children and juveniles defined in subparagraph 2 of Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse;

Sex Offenses

(c) Sexual traffic defined in Article 2 (1) 1 of the Act on the Punishment of Acts of Arranging Sexual Traffic;

(d) Sexual harassment under subparagraph 3 (d) of Article 2 of the National Human Rights Commission Act;

4-2. Where he/she becomes subject to disciplinary action, in violation of Article 44 (1) of the Road Traffic Act;

5. Where he/she becomes subject to disciplinary action by habitually committing any serious physical violence against a student.

6. Any misconduct related to personnel affairs, such as new employment, special employment, transfer (transfer), promotion, and transfer;

7. Concealmenting school violence intentionally or hostilely under the Act on the Prevention of and Countermeasures against School Violence;

failure to comply with the

[Attachment Table]

Article 2. Criteria for Disciplinary Action (Related to Article 2)

A person shall be appointed.

A person shall be appointed.