[1] Whether a teacher requires a higher level of occupational ethics, morality, and strict duty to maintain dignity than that of ordinary workers (affirmative)

[2] Whether the standard for determining a disciplinary decision under Article 2(1) [Attachment Table] of the former Rules on Disciplinary Measures, etc. of Public Educational Officials violates the principle of proportionality or fails to meet the rationality (negative), and whether the objective rationality is lacking with respect to “a case of objection” under Article 4(2)4(a) of the same Rule, which provides that a disciplinary measure cannot be mitigated in a case of sexual crime (negative)

[1] Article 31(4) of the Constitution provides that the autonomy and speciality of education, etc. shall be guaranteed under the conditions as prescribed by the Act. The expertise of teachers’ duties is a social and ethical characteristic that is to have high level of autonomy and social responsibility in performing their social roles like other professional doctors, attorneys-at-law or adults, and thus, teachers shall have a high level of occupational ethics in performing their duties. Article 31(6) of the Constitution provides that basic matters concerning teachers’ status shall be prescribed by the Act. As such, it is to ensure that the basic matters concerning teachers’ status, including teachers’ remuneration and working conditions, are prescribed by the Act. The purpose of Article 31(1) of the Constitution is to guarantee more effective basic rights to receive education for citizens.

In addition, Article 63 of the State Public Officials Act, which applies to a teacher who is a public educational official’s status, provides that “no public official shall commit any act detrimental to his/her dignity, regardless of whether he/she is on his/her duty.” In full view of the contents of Article 63 of the State Public Officials Act as well as the need to maintain the dignity of the teacher, to improve his/her character and quality, to research the principles and methods of academic support and education, and to research the principles and methods of education, and to ensure the student’s education, it requires more strict duty to maintain the dignity in that the teacher requires more morality than that of ordinary workers, and that the teacher’s act of injury to the teacher is likely to undermine the public’s trust in the whole society as well as in his/her own act of injury to the teacher. In addition, the Act requires more strict duty to maintain the dignity of the teacher as a teacher, regardless of whether the teacher is on duty or not, should be interpreted as an average person’s duty to maintain the social norms.

[2] Article 2(1) [Attachment] of the former Rules on Disciplinary Measures, etc. of Public Educational Officials (amended by Ordinance of the Ministry of Education, Mar. 18, 2019; hereinafter “former Rules on Disciplinary Measures”), which was introduced to strengthen the public educational officials’ awareness of sexual assault, shall require high level of occupational ethics or morality, and shall bear an aggravated duty to maintain dignity regardless of whether it is inside or outside of the duties. In particular, if a teacher commits sexual assault, it is a serious violation of the duty to maintain dignity, and it is not appropriate to allow the teacher to perform his/her duties as an educator without any disadvantage corresponding to the relevant teacher’s overall act, because it is likely to undermine the public trust in the society as well as in the teacher’s society. When comprehensively considering various factors such as the social situation at the time of the introduction of the strengthened Rules on Disciplinary Measures and the legal sentiment of the general public for sexual assault crimes, it cannot be concluded that it violates the principle of proportionality or has failed to meet the rationality.

In particular, Article 4(2)4(a) of the former Rule provides that disciplinary action may not be mitigated in cases where a disciplinary action is subject to a disciplinary action due to a sexual crime under Article 2(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. At least, “in cases of doubt,” it is difficult to deem that the aforementioned provision lacks objective rationality in the aforementioned context, and accordingly, the said provision serves as a criteria for disciplinary action along with Article 2(1) [Attachment] of the former Rule. Therefore, it should not be readily determined that a person having authority over disciplinary action has abused the discretionary power left to the person having authority because it considerably loses validity of a disciplinary action by applying the criteria for disciplinary action under Article 2(1) [Attachment] of the former Rule.

[1] Article 31(4) and (6) of the Constitution of the Republic of Korea, Article 63 of the State Public Officials Act / [2] Article 2(1) [Attachment] and Article 4(2)4(a) of the former Rules on Disciplinary Action, etc. on Public Educational Officials (Amended by Ordinance of the Ministry of Education No. 178, Mar. 18, 2019); Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 98Du16613 Decided June 9, 200 (Gong200Ha, 1666), Supreme Court Decision 98Du8858 Decided October 13, 200 (Gong2000Ha, 2333), Supreme Court Decision 2017Du47472 Decided November 9, 2017 (Gong2017Ha, 2345), Supreme Court Decision 2017Du34162 Decided March 29, 2018, Constitutional Court en banc Decision 89Hun-Ga106 Decided July 22, 1991 (Hun-Ga3, 387)

Plaintiff (Attorney Kim Hmp et al., Counsel for the plaintiff-appellant)

Gwangju Metropolitan City Superintendent of Education (Attorney Lee Jae-chul, Counsel for defendant)

Gwangju High Court Decision 2019Nu10176 decided July 11, 2019

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Article 51(1) of the Public Educational Officials Act provides that “Where the head of an educational institution deems that a public educational official under his/her jurisdiction falls under grounds for disciplinary action under any subparagraph of Article 78(1) of the State Public Officials Act, a disciplinary decision shall be requested without delay to the disciplinary committee having jurisdiction over the relevant disciplinary case.” Article 15 of the former Decree on Disciplinary Action against Public Educational Officials (amended by Presidential Decree No. 29560, Feb. 26, 2019; hereinafter the same) provides that “In making a decision on a disciplinary case, the disciplinary committee shall take into account the behavior, performance, public records, the request for disciplinary action against a discipline accused, and other circumstances.

Meanwhile, Article 1 of the former Rules on Disciplinary Measures, etc. of Public Educational Officials (amended by Ordinance of the Ministry of Education, Mar. 18, 2019; hereinafter “former Rules on Disciplinary Measures”) provides that “The purpose of these Rules is to ensure equity in disciplinary measures by prescribing the criteria for disciplinary measures, grounds for mitigation, etc. of public educational officials.” Article 2(1) of the same Act provides that “The Disciplinary Committee on Public Educational Officials shall decide on disciplinary measures in accordance with the criteria for disciplinary measures [Attachment Table] in consideration of the type of misconduct, degree of misconduct, degree of negligence, degree of deliberation, performance, public service, degree of penance, and other circumstances of the suspect, and other circumstances.” Accordingly, the aforementioned [Attachment Table] provides for the criteria for disciplinary measures in accordance with the degree of misconduct, intentional negligence, and degree of negligence.” With respect to “sexual crimes,” which belong to the “violation of the duty to maintain dignity of July 1, 200,” the same provision provides that “where there is a serious degree of misconduct or gross negligence,” “in the case of the case of dismissal or gross negligence.”

2. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

A. On March 1, 1992, the Plaintiff was appointed as an elementary school teacher, and on September 1, 2016, the Plaintiff promoted to an assistant principal and served at the Gwangju ○ Elementary School.

B. On September 9, 2017, around 00:15, the Plaintiff committed an indecent act by making the victim’s chest part of his/her chest, who was seated in the driver’s seat, only on his/her hand (hereinafter “instant misconduct”).

C. On October 31, 2017, the Plaintiff was subject to a disposition of suspending prosecution on the condition that probation guidance was entrusted to the Gwangju District Prosecutors’ Office.

D. On November 27, 2017, the General Disciplinary Committee on Public Educational Officials in Gwangju Metropolitan City decided to dismiss the Plaintiff pursuant to Articles 63 and 78 of the State Public Officials Act, Article 10 of the former Decree on Disciplinary Action against Public Educational Officials, and Article 2(1) of the former Rules on Disciplinary Action.

E. On December 11, 2017, the Defendant took disciplinary action against the Plaintiff according to the above resolution by the Busan Metropolitan City General Disciplinary Committee on Public Educational Officials (hereinafter “instant disposition”).

3. The lower court, on the following grounds, determined that the Defendant’s disposition of this case, which caused the instant misconduct, was unlawful as it deviates from and abused discretion.

A. Article 2(1) of the former Rules on Disciplinary Measures is merely a matter of determining the internal rules of administrative agency’s affairs, and does not externally bind a court or the general public. Furthermore, pursuant to Article 2(1) of the former Rules on Disciplinary Measures, the person having authority to take disciplinary measures can take a minor disciplinary action more than the disciplinary standards prescribed by the Rules on Disciplinary Measures, taking into account the person having disciplinary action’s ordinary behaviors, work performance, public service, and penance, or other circumstances.

B. In particular, in the case of indecent acts such as the instant misconduct, the existence or degree of the misconduct may vary considerably depending on the victim’s intent, gender, age, relationship between the offender and the victim, background leading to the act, specific form of act, objective situation in the surrounding environment and the sexual morality concept of the times, etc. Therefore, the person having authority over disciplinary action as the person having authority should also consider the same in the case of disciplinary action.

C. The instant misconduct appears to have committed the instant misconduct in a manner that the Plaintiff committed the instant misconduct while under the influence of alcohol and significantly lacking decision-making capacity. In light of the fact that the Plaintiff, from the back seat of the taxi, the part on the right side side and the right chest part of the victim’s clothes located in the driver’s seat, was confined to the lower part of the victim’s clothes, and the victim immediately stops the taxi and demanded the Plaintiff to leave the taxi, it seems that the relevant event or indecent act was very heavy.

D. On September 10, 2017, the day after the Plaintiff’s act of misconduct occurred, the victim appeared at the police station on September 10, 2017, and made a statement to the effect that “not to report the Plaintiff’s indecent act, but to require the Plaintiff to pay the fee and to leave the taxi, but was intended to get the Plaintiff to leave the taxi with the help of the police who did not comply with the request. However, following the police statement, the Plaintiff and the Plaintiff expressed their intention to want to punish the Plaintiff without wanting to be punished. In light of the fact that the victim is a woman of 67 years of age with abundant social experience, and the details and details of the statement made by the victim, the victim did not seem to have much any mental shock or sexual humiliation that the victim was sworn.

E. Although the Plaintiff was under the influence of alcohol and did not memory at the time of the instant misconduct, the Plaintiff was aware that all of its responsibility was recognized after the instant misconduct was committed. The Plaintiff served as a teacher for about 25 years without being subject to any particular disciplinary action, and was given official commendation, including presidential commendation. Moreover, the Plaintiff’s number of club teachers submitted a written application and sought a heavy disciplinary action against the Plaintiff.

F. On November 27, 2017, at the time of the Gwangju Metropolitan City General Disciplinary Committee on Public Educational Officials’ Disciplinary Decision on the Plaintiff, a majority of the members present expressed the opinion of dismissal, but at the same time, the majority expressed that it is possible to punish the Plaintiff at a lower level than “retirement.” Nevertheless, the final decision on the level of disciplinary action as “retirement” seems to have been difficult for the Plaintiff to bear a burden beyond the original disciplinary standard under the circumstances where the Plaintiff was suspended from indictment.

4. However, the lower court’s determination is difficult to accept for the following reasons.

A. Whether a disciplinary measure should be taken against a person subject to disciplinary action, who is a public official, is at the discretion of the person having authority to take the disciplinary action. Therefore, the disciplinary measure taken by the person having authority to take the disciplinary action is unlawful only when it is acknowledged that the person having authority to take the disciplinary action has abused the person having authority to take the disciplinary action, as the disciplinary measure significantly lacks validity

In light of the specific cases as to whether a disciplinary action against a public official has considerably lost validity under social norms, the details and nature of the disciplinary action should be determined by comprehensively taking into account various factors, such as characteristics of duties, the contents and nature of the misconduct causing the disciplinary action, the administrative purpose intending to achieve a disciplinary action, and the criteria for a disciplinary action. In cases where the person having an authority to take an action determines the criteria for an internal disciplinary action and takes a disciplinary action accordingly, barring special circumstances, such as where the criteria for a disciplinary action determined are unreasonable under social norms, the relevant disciplinary action cannot be deemed significantly unfair under social norms (see, e.g., Supreme Court Decisions 2008Du6387, Jun. 26, 2008; 201Du13767, Nov. 10, 2011).

B. Article 31(4) of the Constitution provides that the autonomy and speciality of education, etc. shall be guaranteed under the conditions as prescribed by the Act. Since the expertise of teachers’ duties is the social and ethical characteristic that should have high level of autonomy and social responsibility in performing their social roles like other professional doctors, attorneys-at-law or sexual workers, teachers shall have the awareness of occupational ethics at a higher level in performing their duties. Article 31(6) of the Constitution provides that fundamental matters concerning teachers’ status shall be prescribed by the Act. As can be seen, it is to ensure that the basic matters concerning teachers’ status, including teachers’ remuneration and working conditions, etc., are prescribed by the Act more effectively (see Supreme Court en banc Decision 2017Du34162, Mar. 29, 2018; Constitutional Court en banc Decision 89Hun-Ga106, Jul. 22, 1991).

In addition, Article 63 of the State Public Officials Act, which applies to a teacher who is a public educational official, provides that "no public official shall do any act detrimental to his or her dignity, regardless of whether he or she is on his or her duty." Considering that a teacher must always endeavor to improve his or her character and quality, research the principles and methods of learning and education, and research the principles and methods of education, it is necessary to maintain a higher morality than that of ordinary workers, and that the teacher requires more strict duty to maintain dignity in that he or she is likely to enhance the public confidence of the entire society as well as his or her own act as a teacher, and that he or she is likely to cause a higher morality than that of ordinary workers." In this context, the term "personal dignity" refers to a man who has not been flickly performed as an educator for the public. In addition, taking into account the contents of Article 63 of the State Public Officials Act as well as the contents of Article 63 17 of the State Public Officials Act, which requires more strict duty to maintain his or 20.

C. According to the disciplinary criteria under Article 2(1) [Attachment Table] of the former Rules, the disciplinary action against a violation of the duty to maintain dignity due to sexual assault is classified into “definite and intentional,” and the disciplinary action against “in a case where the degree of non-definite and the progress is weak,” into “definite.” However, the instant misconduct can be seen as a case where the Plaintiff’s chest, etc. were committed by indecent act by compulsion of the victim’s chest, etc., which the Plaintiff was a taxi driver, and thus, constitutes intentional act. Therefore, in applying the above disciplinary criteria, the disciplinary action against the instant misconduct would be derived from “definite,” but the instant disposition was determined as “definite,” which would be more favorable to the Plaintiff.

In addition, the criteria for disciplinary action determined by the above [Attachment Table] are as follows: “In the case of a serious and intentional sexual assault,” “in the case of a serious and serious degree of non-defence”; “in the case of gross negligence, or there is a weak degree of misconduct”; “in the case of a serious and serious degree of non-defence or gross negligence, the degree of misconduct is weak;” “in the case of gross negligence,” “in the case of a serious and serious degree of non-defence”; and “in the case of a bad degree of non-defence and progress,” “in the case of a bad degree,” it appears to have been adjusted upward as applied to this case in order to meet the general request of the society that the morality of public educational officials should be enhanced by strengthening the criteria for disciplinary action related to the violation of the duty to maintain dignity. This seems to have high degree as applied to this case. As such, since sexual assault crime is continuously increasing every year, it is more likely to repeat and have high possibility of recidivism than other crimes, it is also necessary to supplement the social punishment system to strengthen and prevent recidivism.

In this regard, the criteria for disciplinary action under Article 2(1) [Attachment Table] of the former Rules, which was introduced to strengthen the degree of sexual assault committed by a public educational official, shall require high level of occupational ethics or morality, and shall bear an aggravated duty to maintain dignity regardless of whether it is inside or outside of his/her duties. In particular, if a teacher commits sexual assault, it is a serious violation of his/her duty to maintain dignity, which is likely to cause serious harm to the public trust of the entire society of teachers as well as teachers, and it is inappropriate to allow the teacher to perform his/her duties as an educator without any disadvantage corresponding to the wrongful act, and it is inappropriate to allow the teacher to perform his/her duties as an educator. When comprehensively considering various factors such as the social situation at the time of the introduction of the standards for disciplinary action and the legal sentiment of the general public for sexual assault crimes, it cannot be concluded that

In particular, Article 4(2)4(a) of the former Rule provides that disciplinary action may not be mitigated in cases where a disciplinary action is subject to a disciplinary action due to a sexual crime under Article 2(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. As to the instant misconduct, it is difficult to deem that at least, as seen in the foregoing context, it lacks objective rationality, and accordingly, the above provision serves as the criteria for a disciplinary action along with Article 2(1) [Attachment] of the former Rule. Therefore, it should not be readily determined that the person having authority over disciplinary action has abused the discretionary power that is entrusted to the person having authority over disciplinary action, because it considerably lacks validity in social norms with respect to the instant disposition, which is conducted by applying the criteria for a disciplinary action under Article 2(1) [Attachment] of the former

D. As to the instant misconduct, the instant misconduct committed by the Plaintiff by force by force on the part of the victim, who was on the part of the victim’s taxi and driven by him as a passenger. At the time, the victim appears to have suspended the remaining taxi operation and demanded immediately the Plaintiff to immediately leave the taxi due to considerable mental impulse and sexual humiliation. In light of the content and circumstances of the instant misconduct, it cannot be readily concluded that the case is minor or that the degree of the misconduct is relatively old, on the ground that the victim’s social experience is too abundant or relatively old.

Although the Plaintiff had been aware of the instant misconduct, the Plaintiff had committed the instant misconduct and had a duty to faithfully guide students so that they can grow up as a human being, and to educate them to establish a proper sexual ethics and values, thereby realizing the trust of the Plaintiff itself and the entire teachers’ society. As such, when the Plaintiff, who caused his/her own trust as a teacher, led students to a different from the previous one, and led students to a different from the previous one, it would be difficult to view that the extent of disadvantage that the Plaintiff would suffer from the instant disposition would be more than necessary for the public interest due to the instant disposition, or that the Plaintiff would have significantly lost the objective rationality in light of social norms, compared with the content and degree of the Plaintiff’s duty to maintain dignity, if the Plaintiff, who caused his/her own trust as a teacher, was leading students to a different from the previous one.

E. Nevertheless, the lower court determined that the instant disposition was unlawful as it deviates from and abused discretionary power. In so determining, the lower court erred by misapprehending the legal doctrine on deviation and abuse of discretionary power of disciplinary action, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)