[1] Whether the head of an educational institution, etc. is obligated to execute a resolution on a disciplinary action against a public educational official within a statutory deadline (affirmative in principle)

[2] The meaning of "when a public educational official abandons his/her duties" in the crime of neglecting duties, and whether the head of an educational institution, etc. reserving the execution after the statutory deadline for the lapse of time from the date of receiving a written resolution of disciplinary action (affirmative with qualification)

[1] As to Article 51(1) of the former Public Educational Officials Act (amended by Act No. 11066, Sep. 30, 201); Article 16(1) of the Decree on Disciplinary Action against Public Educational Officials; Article 82(2) of the State Public Officials Act; Article 17(1) of the Decree on Disciplinary Action against Public Educational Officials provides that where a person having authority to take disciplinary action has received a written disciplinary decision from the Disciplinary Committee, it shall be executed within 15 days from the date of receipt of the written disciplinary decision; Article 17(1) of the Decree on Disciplinary Action against Public Educational Officials; Article 17(1) of the Decree on Disciplinary Action against Public Educational Officials provides that matters concerning disciplinary action against public educational officials shall be decided by the Disciplinary Committee in order to protect the rights and interests of public educational officials and ensure the fairness of disciplinary action; and Article 82(2) of the State Public Officials Act provides that the person having authority to receive disciplinary action may request review or reexamination only where the relevant disciplinary decision is deemed to be minor under Article 82(2).

[2] In the crime of abandonment of duties stipulated in Article 122 of the Criminal Act, the term "when a public official neglects his/her duties" refers to not all cases where the public official neglects his/her duties in good faith by statutes, regulations, etc., but where it is likely to impair the function of the State and cause damage to the people, such as the unauthorized deprivation of duties and the waiver of the consciousness of duties. Accordingly, once performing his/her duties with his/her intent to perform duties, the establishment of the crime of abandonment of duties is not recognized on the sole basis of the fact that the contents of the performance of duties are deemed illegal, but even if the public official fails to faithfully perform his/her duties due to neglect, negligence, sense, etc. or fails to perform his/her duties formally or formally

Therefore, even if the head of an educational institution, educational administrative agency, local government, or educational research institution is legally and factually unable to execute a disciplinary resolution, a crime of abandonment of duties is not established in all cases where the enforcement is reserved only after the statutory deadline from the date on which the written disciplinary resolution is notified, and only if such reservation can be deemed as an ducated neglect or renunciation of duties, it shall be deemed that a crime of abandonment of duties is established.

[1] Article 51(1) of the former Public Educational Officials Act (Amended by Act No. 11066, Sep. 30, 201); Articles 16 and 17(1) of the Decree on Punishment of Public Educational Officials; Article 82(2) of the State Public Officials Act / [2] Article 122 of the Criminal Act; Article 51(1) of the former Public Educational Officials Act (Amended by Act No. 11066, Sep. 30, 201); Articles 16 and 17(1) of the Decree on Punishment of Public Educational Officials; Article 82(2) of the State Public Officials Act

[1] Supreme Court Decision 2011Do797 Decided June 27, 2013 (Gong2013Ha, 1414) / [2] Supreme Court Decision 2010Do13694 Decided August 30, 2012, Supreme Court Decision 2012Do15257 Decided April 26, 2013

Defendant

Prosecutor

Attorney Yellow-gu et al. and 3 others

Gwangju High Court ( Jeonju) Decision 2012No237 decided December 11, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. A. The main sentence of Article 51(1) of the former Public Educational Officials Act (amended by Act No. 11066, Sep. 30, 201; hereinafter “the Public Educational Officials Act”) provides that the head of an educational institution, educational administrative agency, local government, or educational research institute (hereinafter “head of an educational institution, etc.”) shall, without delay, request a disciplinary committee having jurisdiction over a relevant disciplinary case in cases where the public educational official under his/her jurisdiction is deemed to fall under any cause for disciplinary action falling under any of subparagraphs of Article 78(1) of the State Public Officials Act and any of subparagraphs of Article 69(1) of the Local Public Officials Act. In addition, the main sentence of Article 16 of the Public Educational Officials Disciplinary Decree provides that when the disciplinary committee makes a disciplinary decision, the person with authority to request a disciplinary decision shall immediately submit an original copy of the written disciplinary decision and execute it within 15 days from the date of receipt of the written disciplinary decision. Meanwhile, Article 82(2) of the State Public Officials Act provides that the head of an institution that requested a disciplinary resolution may immediately be recognized before the disciplinary committee’s.

As above, Article 17(1) of the Decree on Disciplinary Measures against Public Educational Officials provides that a disciplinary authority shall execute a disciplinary decision within 15 days from the date of receipt of the disciplinary decision where the disciplinary authority receives a written disciplinary decision from the disciplinary committee, and the provision of matters concerning disciplinary measures against public educational officials as a resolution by the disciplinary committee is intended in order to protect the rights and interests of public educational officials as well as to promote the rationality of procedures and fair operation of disciplinary measures so as to ensure fairness and fairness in disciplinary action (see Supreme Court Decision 2011Do797, Jun. 27, 2013). In full view of the relevant provisions on disciplinary measures against public educational officials, a disciplinary authority notified of a written disciplinary decision may file a request for an examination or reexamination only when it is deemed that the relevant disciplinary decision is minor under Article 82(2) of the State Public Officials Act. In cases where the head of an educational agency, etc. is notified of a written disciplinary decision by the disciplinary committee, it shall be deemed that there is a legal and de facto disability that prevents the relevant disciplinary decision.

B. Meanwhile, “where a public official neglects his/her duties” under Article 122 of the Criminal Act refers to not all cases where the public official neglects his/her duties in good faith by statutes, regulations, etc., but where it is likely to impair the State’s function and cause damage to the people, such as neglecting the duty without permission or waiver of his/her duties. As such, once performing his/her duties with intent to perform his/her duties, the establishment of a crime of abandoning duties is not recognized on the sole basis of the fact that the contents of the performance of duties are deemed illegal, but even where the public official fails to faithfully perform his/her duties due to neglect, loss, care, etc. or fails to perform his/her duties formally or formally, it does not constitute an offense of abandoning duties (see, e.g., Supreme Court Decision 2012Do15257, Apr. 26, 2013).

C. Therefore, even if the head of an educational institution, etc. remains legally and factually unable to execute a disciplinary resolution, the crime of abandonment of duties is not established in all cases where the enforcement is reserved only after the statutory deadline is given from the date on which the written disciplinary resolution is notified, but only when such reservation can be deemed as a critical neglect or renunciation in connection with his/her duties, the crime of abandonment of duties shall be established.

2. The lower court upheld the first instance judgment that acquitted the Defendant on the ground that the Defendant’s reservation to the execution of the instant disciplinary resolution could not be deemed as a ethic neglect or renunciation of duties, on the grounds that there was a conflict of views as to the progress of a criminal trial against the teachers participating in the Assembly and Demonstration and the legitimacy of the act of participating in the Assembly and Demonstration, and that there was no evidence suggesting that the Defendant’s reservation to the execution of the instant disciplinary resolution against the above teachers was made after the former Superintendent of Jeollabuk-do, and that there was no evidence suggesting that the Defendant’s right to study was infringed upon by the instant disciplinary resolution reservation.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the enforcement of a disciplinary resolution

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)