(영문) 광주고등법원 2020.4.22. 선고 2019누13182 판결

The reasoning for this Court's explanation is as follows: 1. The reasons for this Court's explanation are as follows: 1. The reasons for the judgment of the court of first instance "the reasons for the disposition" are as stated in Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

In the second sentence of the judgment of the court of first instance, "the Decree on the Disciplinary Action against Public Educational Officials" in the 13th sentence and "the Decree on the Disciplinary Action against Public Educational Officials (amended by Presidential Decree No. 29560, Feb. 26, 2019)" are higher.

In the second judgment of the court of first instance, "Rules on Disciplinary Measures, etc. for Public Educational Officials" in 13 to 14, and "Rules on Disciplinary Measures, etc. for Public Educational Officials (amended by Ordinance of the Ministry of Education No. 178, Mar. 18, 2019; hereinafter referred to as "Rules on Disciplinary Measures, etc.")" shall be deemed "Rules on Disciplinary Measures, etc. for Public Educational Officials

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The instant disciplinary decision is merely a rule for handling affairs within an administrative agency and does not externally restrict the citizens or the court. On the same premise, in light of the following: (i) the instant disposition of dismissal is too harsh and ought to be revoked as it constitutes a deviation or abuse of discretionary power.

① The Plaintiff committed the instant misconduct in a timely and contingent manner under the influence of alcohol and lacks the ability to discern things or make decisions.

② The Plaintiff did not have exercised strong tangible power in the course of engaging in an indecent act against the victim. The degree of indecent act is also minor as the Plaintiff has delivered the victim’s clothes from the back seat of the taxi to the clothes above the victim’s clothes.

③ The Plaintiff did not want criminal punishment or disciplinary action against the Plaintiff by mutual consent with the victim of the instant misconduct. The Plaintiff was suspended from indictment due to this reason.

④ The instant misconduct was not committed against students by taking advantage of the Plaintiff’s superior position.

⑤ The Plaintiff did not have been subject to any disciplinary action while working as a teacher for twenty-five years. Rather, the Plaintiff received a large number of official commendations, and the Plaintiff wanted to take disciplinary action against the teacher.

6. There are many cases where disciplinary action, such as suspension from office, reduction of salary, etc., is taken at the time when the instant disciplinary action is applied, and such disciplinary action has not been dismissed or removed.

B. Relevant statutes

It is as shown in the attached Form.

C. Relevant legal principles

1) In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, what kind of measure should be taken is at the discretion of the person having authority to take disciplinary measures. Therefore, a disciplinary measure taken by the person having authority to take disciplinary measures by exercising discretionary authority may be deemed unlawful only when it is recognized that the person having authority to take disciplinary measures has abused the discretion assigned to the person having

In light of the specific cases as to whether a disciplinary action against a public official has manifestly 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 the 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, the pertinent disciplinary action cannot be deemed significantly unfair under social norms (see, e.g., Supreme Court Decisions 2008Du6387, Jun. 26, 2008; 201Du13767, Nov. 10, 2011).

2) Article 31(4) of the Constitution provides that education autonomy, specialty, etc. shall be guaranteed under the conditions as prescribed by the Act. Professionalism of teachers should have high level of occupational ethics in performing their social functions like other professional doctors, attorneys-at-law or sexual workers. As such, Article 31(6) of the Constitution provides that fundamental matters concerning teachers’ status shall be prescribed by Act. Inasmuch as fundamental matters pertaining to “the status of teachers, including teachers’ remuneration and working conditions, are to be determined by Act, more effectively guaranteeing the fundamental right of the people to receive education provided under Article 31(1) of the State Public Officials Act (see, e.g., Supreme Court Decisions 2017Du34162, Mar. 29, 2018; 89Hun-Ga106, Jul. 22, 1991). 63 of the Constitution provides that teachers who are public educational officials need not be able to perform their respective duties and maintain dignity than those of the public.

D. Specific determination

B. We examine the instant case in light of the statutes and the legal principles as seen earlier. The evidence submitted before the final appeal of this case along with the evidence submitted to this court, which was reversed and remanded to the court of final appeal, and the following circumstances, which can be acknowledged and inferred by comprehensively taking account of the overall purport of the pleadings, are not deemed significantly inappropriate in light of social norms, or cannot be deemed as a deviation or abuse of discretionary power in violation of the principle of proportionality.

1) The Supreme Court Decision 91Nu954 delivered on April 14, 1992 held that the criteria for a disciplinary decision by a public official do not externally bind the citizens or the court, and that even if the court made a decision different from the criteria for a disciplinary decision, it cannot be deemed unlawful. However, the above Supreme Court decision is understood to have held that the legal nature of the criteria for a disciplinary decision by a public official does not correspond to the so-called "legal order" and thus, the court may make a decision different from the criteria. In light of such general legal principles, the illegality of the disposition of this case cannot be inferred immediately on the ground of such general legal principles. If the disposition of this case is deemed unlawful, regardless of whether the criteria for a disciplinary decision by a public official are legal nature, there is no rationality in the criteria for a disciplinary decision by a public official, or the content of a disciplinary decision is objectively unreasonable, as seen in the above paragraph (1).

2) The criteria for disciplinary action determined by Article 2(1) [Attachment Table] of the Rules of this case are as follows: "in a case where the degree of non-conformity is severe and intentional for sexual assault previously committed," "in a case where the degree of non-conformity is severe and gross negligence, or where the degree of misconduct is weak and intentional," "in a case where the degree of non-competence is serious and long," "in a case where the degree of non-competence is weak and gross negligence," "in a case where the degree of non-competence is weak and the degree of non-competence is excessive," and "in a case where the degree of non-competence is excessive and the standards for disciplinary action related to the violation of the duty to maintain dignity of public educational officials are applied to this case in order to enhance the morality of public educational officials by strengthening the criteria for disciplinary action related to the violation of the duty to maintain dignity, it is not appropriate to prevent such disciplinary action from being applied to the case, regardless of whether there is a high possibility of social harm to teachers in the process of recidivism.

In particular, Article 4(2)4(a) of the Rules on the Punishment, etc. of Sexual Crimes provides that disciplinary action may not be mitigated in cases where a person becomes subject to disciplinary action due to a sexual crime under Article 2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. In relation to the instant misconduct, it is difficult to deem that the said provision lacks objective rationality in the same context as seen earlier. Accordingly, the said provision serves as the criteria for a disciplinary action along with Article 2(1) [Attachment Table] of the Rules on the Punishment, etc. of Sexual Crimes. Therefore, with respect to the instant disposition, where the Defendant applied the criteria for a disciplinary action under Article 2(1) [Attachment Table] of the Rules on the Punishment, etc. of Sexual Crimes, it cannot be readily concluded that the Defendant abused the discretionary authority that has been left to the authority to take disciplinary action

3) According to the disciplinary criteria under Article 2(1) [Attachment Table] of the Rules on Disciplinary Action, the disciplinary action of "in a case where the degree of vision is serious and intentional," and "in a case where the degree of misconduct is weak and intentional, or the degree of misconduct is weak," and "in a case where the degree of misconduct is excessive and the progress is excessive," respectively. However, the act of misconduct in this case constitutes an intentional act by deceiving the chest, etc. of the victim who was a taxi driver, and thus, constitutes an intentional act. It cannot be deemed that the judgment differs even if the plaintiff considered the evidence No. 5 (written confirmation of the fact of the victim's preparation). Accordingly, in applying the above disciplinary criteria, the disciplinary action of this case should be derived from "in a case where the degree of misconduct in this case is weak," or "in a case where the disposition of this case is less favorable to the plaintiff."

4) The instant misconduct committed by the Plaintiff’s indecent act by force by force, in such a way that the victim’s sexual humiliation and sexual humiliation was committed by force. At the time, the victim appears to have suspended the operation of the taxi, and demanded the Plaintiff to immediately leave the taxi. In light of the details and circumstances of the instant misconduct, it cannot be deemed that the matter is minor or the degree of the misconduct is not excessive.

5) After the Plaintiff revealed the instant wrongful act, the Plaintiff appeared to have been aware of all responsibilities and misunderstandings. The teachers, etc. were subject to a heavy disciplinary measure against the Plaintiff (No. 15, No. 41), and the Plaintiff did not have been subject to disciplinary action prior to the instant case, and received multiple official commendation (No. 7, No. 12, 13, 39, and 40) with several preceding deeds. However, the Plaintiff, as a teacher, had a duty to faithfully guide students so that students can grow up as a human being, and to educate them to establish a proper sexual ethics and values. Nevertheless, the Plaintiff committed the instant wrongful act, and caused the Plaintiff’s confidence in the entire society as well as the teachers. As such, when the Plaintiff was able to guide students without reliance on reliance on reliance as a teacher, the Plaintiff could not be able to suffer any disadvantage to the Plaintiff due to the Plaintiff’s failure to meet the Plaintiff’s basic duty of education in light of social norms, compared to that of the Plaintiff’s fundamental duty of education in this case.

6) In addition, the Plaintiff asserts that there are cases where a public educational official committed a sexual indecent act against the general public, such as suspension from office, reduction of salary, and reprimand, and that he was not dismissed or removed (Evidence A, No. 22, 38, 42 of the same Act). However, the fact that the instant disposition was determined as “a minor dismissal” rather than “a dismissal resulting from the application of the disciplinary standards as they are,” is as seen earlier. The mere fact that there was a minor disciplinary action against some similar cases in this case, the instant disposition exceeded the discretion or lost its rationality.

3. Conclusion

As examined so far, the Plaintiff’s assertion that the instant disposition is unlawful or the Plaintiff’s claim of this case based on such premise cannot be accepted. The judgment of the first instance, which dismissed the Plaintiff’s claim, is justifiable in conclusion. Therefore, the Plaintiff’s appeal is dismissed.