(영문) 대구지방법원 2021.8.12. 선고 2021구합20797 판결

A. The Plaintiff was appointed as a public official on November 1, 1991, and was in charge of the administration and disbursement of human resources management in the Seoul Special Metropolitan City B-gu Seoul Special Metropolitan City, B-gu, Seoul Special Metropolitan City, and the parks and greenbelts of the Seoul Special Metropolitan City, B-gu, Seoul Special Metropolitan City, from July 1, 2014 to June 30, 2019.

B. On August 11, 2020, the Daegu Metropolitan City Personnel Committee passed a resolution to dismiss the Plaintiff on the ground that “the Plaintiff violated Article 48 (Duty of Fidelity) of the Local Public Officials Act due to the following misconducts (hereinafter “instant misconducts”).

From July 1, 2014 to June 30, 2019, the Plaintiff: (a) took charge of administrative affairs related to the park management personnel service; (b) park patrol; (c) control over various illegal acts in the park; and (d) order guidance for users; and (b) obtained the approval of the Director of the Park Park Management Office, etc. by raising the spouse, Kim○, who did not have applied for employment procedures for fixed-term workers in the public book, on December 2017, 2017; and (c) obtained the approval of the Director of the Park Management Office, etc.; and (d) even though the said Kim○ did not have worked as a fixed-term worker, he/she did not prepare false documents and embezzled KRW 5,619,260 in total for four months after receiving the said Kim○’s account.

C. On August 24, 2020, the Defendant issued a dismissal disposition and a surcharge for disciplinary action against the Plaintiff (the amount subject to a surcharge for disciplinary action: 5,619,260) (hereinafter “instant disposition”). The Plaintiff filed a petition review with the Daegu Metropolitan City Appeals Commission, but the said Appeal Commission dismissed the said claim on November 24, 2020.

D. On November 11, 2020, the Plaintiff was found to have committed a crime of occupational embezzlement, preparation of false official documents, and display of false official documents, and was sentenced to a judgment of conviction of one year of suspended execution (Seoul District Court Decision 2020No3878, Nov. 11, 2020) in the first instance court. On the grounds of unfair sentencing, the Plaintiff appealed against the above judgment on the grounds of unfair sentencing, the appellate court rendered a judgment of conviction of ten million won ( Daegu District Court Decision 2020No3878) on July 22, 2021.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Considering the fact that the Plaintiff was ordered by the employees to execute the labor cost to be spent at the end of the year and was registered as an employee Kim○, the spouse of the Plaintiff, who subsequently intended to replace the employees with other human resources, and did not secure substitute human resources, the Plaintiff received labor cost in the name of Kim○○○. The instant misconduct was committed in the course of making annual budget reasonable, but was not intentionally embezzled labor cost, etc. from the beginning, and the labor cost that was unfairly received in the name of Kim○○ was used for the purpose of employees’ ordinary expenses, gift expenses, donations, etc., and was not used individually by the Plaintiff, the Plaintiff was faithfully served as a public official for about 30 years, and the Plaintiff suffered economic difficulties due to the instant disposition, the Defendant’s disposition of this case was unlawful by abusing and abusing discretionary power.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Relevant legal principles

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure is placed at the discretion of the person having the authority to take the disciplinary measure. However, the disciplinary measure is unlawful only when it is deemed that the person having the authority to take the disciplinary measure has abused the person having the authority to take the disciplinary measure since the disciplinary measure as an exercise of discretionary authority substantially lacks validity under the social norms. In order for a disciplinary measure against a public official to have substantially lost validity under the social norms, the disciplinary measure should be determined in a case where it can be objectively and objectively deemed that the content of the disciplinary measure is objectively unreasonable in light of various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, the criteria for the determination of the disciplinary measure, etc. (see, e.g., Supreme Court Decision 2010Du16

2) Determination

In light of the following circumstances, i.e., Article 2 (1) [Attachment Table 1] and [Attachment Table 4] of the former Local Public Officials Discipline Rules (amended by Ordinance of the Ministry of Public Administration and Security No. 193 of July 28, 2020), i.e., i., e., 'in cases where there is serious and intentional conduct with respect to embezzlement of public funds' (3~5 times of money or profits in the case of surcharges for disciplinary action), 'in cases where there are severe and gross negligence or intentional conduct with respect to wrongful conduct', 'in cases where the degree of corruption is severe, 'in the case of surcharges for disciplinary action, 'in the case of fraud', 'in the case of punishment surcharges for disciplinary action', 'in the case of punishment surcharges for disciplinary action or dismissal' (2~3 times of money or financial profits in the case of disciplinary action surcharges for disciplinary action)', and 'in cases where the plaintiff is found to have been found to have been found to have been subject to disciplinary action of approximately 1000 million won.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit.