(영문) 서울행정법원 2018.4.27. 선고 2017구합72102 판결

A. On September 5, 1984, the Plaintiff was newly appointed as a teacher of B elementary school on March 1, 2012, and was promoted as an assistant principal of C elementary school on March 1, 2012, and served as an assistant principal of D elementary school from September 1, 2013 to March 2017. The Defendant is the person who is the appointment-recommendation authority for promotion of the elementary school and the person who is the appointment authority for the Defendant on behalf of the President.

B. On February 15, 2005, the Plaintiff was subject to disciplinary action for three months of salary reduction due to his/her breach of dignity (hereinafter “the instant disciplinary power”), following the resolution of the General Disciplinary Committee of the Eth Office of Education (hereinafter “Disciplinary Committee”) on the ground that the Plaintiff continued to have his/her mother (hereinafter “school mother”) and female teachers, and that he/she was hospitalized in his/her wife as a result of his/her dispute with his/her wife, and was subject to special amnesty on August 15, 2008, and the record of the said disciplinary action was deleted on the same day.

C. After acquiring the qualification as the principal of an elementary school on July 22, 2015, the Plaintiff was registered in the list of candidates for promotion of the principal of an elementary school in the E Office of Education on January 31, 2016, and the E Superintendent recommended the Plaintiff to the Defendant on January 16, 2017.

D. However, on January 25, 2017, the Defendant excluded the Plaintiff from the person who was recommended to promote the principal of an elementary school, and as a result, the Plaintiff was dismissed from the appointment of the principal on March 1, 2017 (hereinafter “instant disposition”).

E. On February 27, 2017, the Plaintiff filed a petition with the Appeal Review Committee for Teachers, but was dismissed on April 19, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 6, 7, 8, 10, 12, 13, Eul evidence No. 1 (including each number), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

Since there is no statutory or logical right to request the Plaintiff to promote himself/herself as an elementary school principal, it cannot be deemed that the Defendant’s exclusion of the Plaintiff from the promotion of the principal from the promotion of the principal does not infringe the Plaintiff’s right. Therefore, the instant lawsuit is unlawful.

B. Determination

1) The provisions of the Public Educational Officials Act stipulate that the principal is appointed by the President on the recommendation of the Minister of Education (Article 29-2 (1)); further, the promotion of a public educational official shall be made and kept based on his/her career rating, outcomes of retraining, performance rating, and other capabilities proven, as prescribed by Presidential Decree (Article 13); the person who has the authority to appoint public educational officials or an authority to recommend appointment shall, as prescribed by Presidential Decree, prepare and keep a list of candidates for promotion by qualifications in the order of priority of promotion (Article 14 (1)); and the promotion of a public educational official shall, in principle, be made within three times the number of vacant positions in the order of priority in the list of candidates for promotion (Article 14 (2)); and the public educational official who has the authority to recommend appointment of public educational officials shall, within the scope of one higher grade and one higher grade in the employment rating and one higher grade in the employment rating under Articles 13 and 14 of the Public Educational Officials Act; and the public educational official who has the authority to recommend appointment of each of the public educational official shall be filled in the order of Grade 10.

If disciplinary action, dismissal from position, or temporary retirement is being taken, or the execution of a disciplinary action is not completed for a certain period, he/she shall not be promoted (Article 16(1)).

According to the provisions of these Acts and subordinate statutes, the appointment authority should examine whether candidates entered within three times the number of times of promotion, and accordingly, the candidates included in the list of candidates for promotion are expected to undergo legitimate examination from the appointment authority.

However, in a case where the appointing authority, etc. excluded a candidate included in the list of candidates for promotion for arbitrary reasons from the list of candidates for promotion, if such exclusion disposition is not considered a disposition subject to appeal litigation, there is no other means of appeal and remedying the right to appeal against it or legal interest. Therefore, the exclusion of a candidate included in the list of candidates for promotion from the appointment examination by the promotion examination method by the list of candidates for promotion under the Public Educational Officials Act constitutes a disadvantageous disposition which is subject to appeal litigation.

(Supreme Court Decision 2015Du47492 Decided March 27, 2018).

2) In light of the foregoing legal principles, the fact that the Plaintiff acquired the qualification of principal of an elementary school on July 22, 2015, and was registered in the list of candidates for promotion of principal of an elementary school in the E Office of Education on January 1, 2016 is as seen earlier. As such, the instant disposition, excluding the Plaintiff’s assignment of appointment of principal of a school, constitutes a disposition subject to appeal litigation. Accordingly, the Defendant’s aforementioned main safety defense is rejected.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Violation of statutes

A) According to Article 14(1) and (2) of the Public Educational Officials Act, an appointment authority or an appointment-recommendation authority has a duty to promote or recommend the promotion of a person registered on the list of candidates for promotion of the principal in the order of priority among those who are registered on the list of candidates for promotion of the principal. Thus, the instant disposition, except for the promotion of a principal, is in violation of Article 14(1) and (2) of the

B) According to Article 16(1)2(b) of the Decree on the Appointment of Public Educational Officials, where a public educational official is subject to a disciplinary measure for reduction of salary, promotion is restricted for 12 months, and the Plaintiff’s period of restriction on promotion due to the instant disciplinary power is up to 2006, May 14, 2006. Nevertheless, the instant disposition taken after the said period has elapsed on the ground of the instant disciplinary power violates Article 16(1)2 and (b) of the

C) Although the established rules on the service and disciplinary action of state public officials provide that “no unfavorable treatment shall be given on the ground of disciplinary action, etc. cancelled in all personnel management areas, such as promotion, management of placement, etc.,” the instant disposition already cancelled on the ground of the record of disciplinary action is in violation of the above established rules.

2) Violation of the principle of statutory reservation

The fourth misconduct is merely a defendant's internal guidelines that excludes a person subject to a proposal for appointment of the principal regardless of the cancellation of disciplinary records, and thus, the instant disposition was unlawful as it was conducted without any legal basis.

3) Non-existence of grounds for disposition

The grounds for the disciplinary action of this case are nothing more than the previous wife during the divorce process, and the disciplinary action of this case does not constitute a "violation of dignity" since the disciplinary action of this case is a "violation of dignity", and the "sexual-related misconduct" which is not a "sexual assault" does not constitute a four-dimensional misconduct under the criteria for the proposal for appointment of the principal. Therefore, there is no reason for the disposition of this case.

(iv) deviation from and abuse of discretionary power;

In light of the fact that there is no reason to restrict the promotion under Article 16 of the Decree on the Appointment of Educational Officials, and the defendant has been promoted according to the order of appointment on the list of candidates for promotion of the former principal at the time of the disposition of this case, the plaintiff was registered in the order of priority within the scope of the vacancy on the list of candidates for promotion of the principal at the time of the disposition of this case. The plaintiff was promoted to the assistant principal after the cancellation of the instant disciplinary power, and it was difficult to expect that the plaintiff would be excluded from the promotion of the principal due to the instant disciplinary power, and in the case of other candidates for promotion of the principal other than the plaintiff, he was promoted to the principal in accordance with the order of appointment

B. Relevant statutes

It is as shown in the attached Form.

1) The major grounds for disciplinary action against the instant disciplinary power recognized by the Disciplinary Committee are as follows.

1. G from March 1, 1996 to February 29, 200, and G G who continued to contact with police officers during their service at F Elementary School during the period from March 1, 1996 to July 1, 200, and money received gifts, such as clothes, while continuing to contact with police officers during their service at F Elementary School;

It was true that G used the Plaintiff’s wife by phone, and “I am kis because I am kn if I am her husband and I am removed the Plaintiff. I am kn't know that I am as I am son, I am kn't have such technology. I am kn't am son. I am kn't talk with I am kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn's kn't kn't k's kn't k's kn's k's k's k's k's k's k's k's k's k's k's k's.

On November 27, 2004, the Plaintiff was aware of the 196th anniversary of the speech of "Welthic 100s." The Plaintiff sent a mobile phone call 75 times from July 14, 2004 to 11, 2004, 172 times from telephone, and 10 times from 257 times from 200s to 30 times from 20 days from 200s to 10s from 200s to 257 times from 20s from 20s to 30s from 20s from 20s to 10s from 20s to 10s from 20s to 10s from 20s to 10s from 20s to 37s from 20s to 10s from 20s to 20s to 10s to 20s to 1.

2) The background and main contents of the establishment of the Defendant’s proposal for appointment of the principal is as follows.

A) Article 16(1)2 of the Decree on the Appointment of Educational Officials (amended by Presidential Decree No. 23322, Nov. 30, 2011; hereinafter referred to as “fourth misconduct”) provides that the period of restriction on promotion due to disciplinary action shall be extended to six months in the case of disciplinary action pursuant to “the receipt of money and valuables, and entertainment, sexual assault, habitual assault, and student sexual misconduct (hereinafter collectively referred to as “fourth misconduct”).

B) Accordingly, the defendant shall appoint the principal of the school before September 1, 2013 as a candidate for promotion of the principal of the school.

The reason for restriction on promotion under Article 16 of the Decree on the Appointment of Educational Officials was examined and the decision on whether to recommend appointment was made.

C) However, there have occurred a sexual indecent act against the students and subordinate teachers of the principal around that time, and a candidate inappropriate for the appointment of the principal, such as sexual traffic and inappropriate sexual intercourse-related disciplinary actions, has been appointed as the principal. In order to prevent such appointment, the defendant has established the "Committee of the Department in charge of Personnel Management (O. 18, 2013)" and the "Committee of the Department in charge of Personnel Management (O. 11, 2013)" through the "Committee of the Department in charge of Personnel Management (O. 11, 2013)" and applied until now.

D) In accordance with the instant criteria, the Defendant deemed that there were four-party misconducts, such as sexual harassment and sexual harassment, and excluded the teachers who were subject to disciplinary action due to four-party misconducts and other similar misconducts from those who are recommended to be promoted, regardless of the cancellation of the records of disciplinary action.

3) Vacancy, the order of priority and status of appointment of the Plaintiff when appointing the principal of an elementary school on March 1, 2017

A) On March 1, 2017, the vacancy of the principal of an elementary school as of March 1, 2017 within the jurisdiction of the E Office of Education is 70 persons including 42 persons on retirement, and among them, the number of appointed persons by general promotion according to the order of the list of candidates for promotion of the principal among them is 36 persons (the number of appointment of the principal of a machine shall be 7 persons at the expiration of the term of appointment of the principal, 4 persons in technical service, 12 persons in the first term of office, and 11 persons in the first term of office). Accordingly, the personnel committee for public educational officials of the E Office of Education decided on January 12, 2017 to recommend 28 qualified candidates among the candidates listed in the list of candidates for promotion of the principal, 28 persons in the list of candidates for promotion of the principal, and 108 persons in the second term of sexual priority, and 6 persons in the first term of appointment to the defendant

B) Accordingly, on January 16, 2017, the E Superintendent of the Office of Education recommended the Plaintiff registered in the list of candidates for promotion of the principal of an elementary school in the order of eighteenth priority.

C) On March 1, 2017, all other candidates recommended as candidates for appointment as principals of elementary school except the Plaintiff were promoted to elementary school principals on March 1, 2017.

[Reasons for Recognition] Class A: Evidence Nos. 1, 5, 6, 8, 11, 12, 13, and the purport of the whole pleadings

D. Determination

1) Whether the statutes were violated

A) Whether Article 14(1) and (2) of the Public Educational Officials Act are violated

Article 14 (1) and (2) of the Public Educational Officials Act only purports that the appointment authority or appointment-recommendation authority shall, at the discretion of up to three times the number of vacant positions from the person in the order of priority in the list of candidates for promotion, select persons eligible for the appointment or appointment-recommendation authority at the discretion of up to three times the number of vacant positions, and shall not select persons outside the scope. It is difficult to deem that the appointment authority or appointment-recommendation authority has a duty to provide for an obligation to recommend the appointment or appointment in the order

B) Whether Article 16(1)2(b) of the Decree on the Appointment of Educational Officials violates

Article 16 (1) 2 (b) of the Decree on the Appointment of Educational Officials provides that "A public educational official shall not be promoted for 12 months from the date on which the execution of a disciplinary measure for salary reduction is completed."

This is the fact that the grounds for disqualification under the Act on Promotion are prescribed and there is a history of disciplinary action, and it is not possible for the appointment authority or appointment-recommendation authority to take into account all the records of disciplinary action for which the above period has elapsed when selecting a person eligible for promotion or appointment at the discretion of the appointment authority.

C) Whether the rules related to the disciplinary action against state public officials were violated

The regulations related to the disciplinary action against state public officials stipulate that the period of restriction on cancellation of the records of disciplinary action against public officials shall be five years, and that it shall not be treated disadvantageously without reasonable grounds on the grounds of disciplinary action cancelled in all personnel management areas such as promotion and management of placement.

However, it is reasonable to view that the above established rules merely have no legal effect because they are internal administrative regulations prescribed by the administrative agency without delegation of laws and regulations, and that if there is "reasonable grounds" in the opposite interpretation of the above established rules, it is possible to give unfavorable treatment to promotion on the ground of cancellation of disciplinary action.

D) Sub-committee

Therefore, the plaintiff's assertion on the violation of the law cannot be accepted in a different premise.

2) Whether the principle of statutory reservation has been violated

In exercising discretionary power, an administrative agency’s determination of its standard of determination also belongs to the discretion of the administrative agency. Thus, barring any special circumstance to deem the standard established objectively unreasonable or unreasonable, the administrative agency’s intent should be respected as far as possible (see Supreme Court Decision 98Da53134, May 25, 199).

The instant standard corresponds to the discretionary rule established by the defendant, who has discretion to select a person subject to the proposal for promotion within three times the number of vacant positions from a person who is the appointment-recommendation authority for the principal of an elementary school in the order of priority in the list of candidates for promotion, in order to establish the criteria for exercising discretionary power. As long as the instant standard is objectively unreasonable or unreasonable in light of the aforementioned details of establishment, purpose, contents thereof, etc., and so long as the instant standard is objectively unreasonable or unreasonable, the Plaintiff’s assertion that the Defendant’s exercise of discretionary power in accordance with the instant standard is not correct.

3) Whether there exist grounds for the disposition

A) Whether the facts suspected of disciplinary action are true

As seen earlier, the disciplinary committee acknowledged the facts of suspicion of disciplinary action against the plaintiff as they were, and during that process, it appears that various evidence were given to the plaintiff according to the legal procedure, and according to the purport of Gap evidence No. 13, Eul evidence No. 13, Eul evidence No. 1, and the whole arguments, the disciplinary action against the plaintiff as well as the plaintiff was taken for three months of reduction of salary for the same reason, and in full view of the facts that the plaintiff and the plaintiff seem to have not followed the procedure of objection, the grounds for disciplinary action on the disciplinary power of this case are acknowledged as facts.

B) Whether it constitutes "sexual misconduct"

Although the disciplinary power of this case's disciplinary action is "violation of the dignity maintenance", it is reasonable to view that the grounds for the disciplinary action is a violation of sex-related misconduct, since the plaintiff, who is the spouse, has an inappropriate relationship with his or her school mother and female teacher, provided the causes of crisis in the marriage life with H.

C) Whether the case constitutes four misconducts

As seen earlier, ‘sexual assault', which is a type of 4th misconduct in the instant criteria, includes ‘sex-related misconduct, such as sexual harassment,' and the instant criteria are applied. In addition, it is considerably inappropriate to appoint the principal as the principal of a school who has sexual-related misconduct, considering the roles and status of the principal who should take charge of the general administration of school affairs, the direction and supervision of school personnel under its control, and the education of students, not only falls under serious grounds for suspicion of basic qualities or morality as a teacher, but also, considering the roles and status of the principal who should take charge of normal school operation such as sex-related misconduct. Therefore, it is difficult to see that ‘sexual assault' in the instant criteria is limited to ‘sexual crime, such as rape.'

D) Sub-committee

Therefore, we cannot accept all of the plaintiff's arguments.

4) Whether the discretion is deviates or abused or abused

A) With respect to the promotion of public officials, a wide range of discretion is granted to the appointing authority to the extent that it would not be comparable with the administrative disposition against the general public or disciplinary action against the public official. Therefore, if it is proved that the decision to exclude the candidates included in the list of candidates for promotion did not violate the relevant statutes and regulations governing the qualification of public officials and would result in the ground that is reasonable under social norms, it shall not be deemed unreasonable (see Supreme Court Decision 2016Du33408, Mar. 27, 2018).

B) In full view of the following circumstances acknowledged in light of the aforementioned legal principles and the purport of the entire pleadings, the instant disposition that the Defendant’s exclusion of the Plaintiff from the person who recommended the promotion of the principal of an elementary school from the person who was recommended to promote the principal of an elementary school cannot be deemed as an unlawful act of deviating from and abusing discretion. Accordingly, the Plaintiff’s assertion on this part

(1) In light of the above position and role of the principal, a person who intends to be promoted as the principal requires not only expertise but also to have a high level of qualities and morality that can serve as an example for all school members, and must undergo a review on the appointment process. However, since money and valuables, entertainment, sex assault including sex-related misconduct, and misconduct related to sexual intercourse, including sex-related misconduct, is a serious reason for doubting the basic quality or morality of a teacher, a teacher who has been subject to disciplinary action for any one of the reasons shall not be considered in determining whether to cancel the disciplinary record, regardless of whether to cancel the disciplinary record.

(2) Although a considerable period of time has elapsed after the instant disciplinary power, considering the degree and contents of illegality revealed in the act of misconduct, such as the continuance period of relationship, the status of the other party, and the status and role of the principal of the school as well as the degree of reasonable grounds to consider the instant disciplinary power in determining whether to promote the principal of the Plaintiff, it cannot be deemed that the instant disposition violated the regulations on the service of state public officials and disciplinary action.

(3) Notwithstanding the records of the instant disciplinary action, it is difficult to recognize that the Plaintiff already promoted to an assistant principal despite the records of the instant disciplinary action, and it is difficult to recognize that the Plaintiff was given a legitimate trust that the Plaintiff would be promoted to the principal despite the records of the instant disciplinary action. Since the public interest, such as preventing the appointment of the principal of a candidate inappropriate than the Plaintiff’s trust interest, is more serious, the instant disposition is not contrary to the principle of

(4) There is no evidence to acknowledge that other candidates promoted by the principal on March 1, 2017, other than the Plaintiff, had the record of disciplinary action corresponding to the instant disciplinary action. Thus, it cannot be deemed that the handling of the Plaintiff with the record of disciplinary action in the instant case differently from other candidates constitutes unreasonable discrimination and thus contravene the principle of equality.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.