2012Guhap2421 Revocation of revocation of dismissal

Kim 00

Superintendent of the Office of Education of Daejeon Metropolitan City

August 22, 2012

September 12, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s dismissal against the Plaintiff on December 14, 201 shall be revoked.

1. Details of the disposition;

A. On November 19, 1979, the Plaintiff was appointed as a local architectural technician by the head of the budget-military education office, and served as the head of the facility support division in the Seo-gu Daejeon District Office of Education from January 1, 201 to the Daejeon District Office of Education.

B. The Plaintiff received KRW 4,500,000 from August 8, 2011 to September 201, 201, a duty-related employee of Cheongnam Engineering Co., Ltd., which was an official duty-related party to the contract for the supply of government-funded materials at the Daenam Elementary School within the jurisdiction of the Seonam District Office of Education, in violation of the relevant statutes and regulations, and borrowed KRW 1,00,000,000.

C. On December 14, 201, the Defendant issued a dismissal disposition against the Plaintiff for the following reasons (hereinafter “instant disposition”).

A person shall be appointed.

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal review with the Daejeon Metropolitan City Education Appeals Commission on January 12, 2012, but was dismissed on February 27, 2012.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 3, 5, and 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

In light of the fact that the Plaintiff returned the total amount of the money received to the decoration and that the Plaintiff served as a public official in good faith for 32 years, the instant disposition is unlawful by excessive imposition.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, it is at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure is unlawful only when the person having authority to take the disciplinary measure has considerably lost validity under the social norms, and it is deemed that the person having authority to take the disciplinary measure has avoided or abused the discretionary power to the person having authority to take the disciplinary measure. In order to deem that a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by taking into account various factors, such as the content and nature of the offense causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for a disciplinary measure, etc. (see Supreme Court Decision 2010Du20027, Dec. 23, 2010, etc.).

Meanwhile, Article 8 (1) of the Local Public Officials Discipline and Appeal Regulations provides that "the criteria for the determination of disciplinary action, etc. shall be determined by the rules of the relevant local government after the resolution of the committee within the scope of the criteria set by the Minister of Public Administration and Security or the Minister of Education, Science and Technology." Article 2 (1) of the Rules on the Determination of Disciplinary Action against Local Public Officials belonging to the Superintendent of the Daejeon Metropolitan City Office of Education provides that "the personnel committee shall make a resolution on disciplinary action, etc. in accordance with the criteria for disciplinary action in attached Table 1 and the criteria for imposing disciplinary action in accordance with the disciplinary action in attached Table 1 and the criteria for imposing disciplinary action in attached Table 1-2, in consideration of the degree of misconduct, gross negligence, or gross negligence, and the degree of misconduct when the violation of the duty of integrity is serious and there is an intention to be dismissed or dismissed."

With respect to the instant case, there is no intention on the Plaintiff’s misconduct in light of the name of the money, method of receiving, and details of return, such as giving, receiving, or borrowing money and valuables from a person related to his duties, as well as the amount of money received, which is not a large amount of money. Furthermore, after the Plaintiff’s receipt of a school site consisting of KRW 500,000,000 from a person related to his duties who received money and valuables from a person related to his duties and received money and valuables from him, it is difficult to view that there was no intention on the Plaintiff’s misconduct in view of the following: (a) the Local Public Officials Act amended by Act No. 10147, Mar. 22, 2010; and (b) the Local Public Officials Act, amended by Act No. 10147, Dec. 2, 2010, introduced the additional system for receiving money and valuables for a public official, and (c) the Plaintiff’s removal of the relevant disciplinary action is sufficiently possible.

In full view of the contents and nature of the alleged misconduct, the administrative purpose to be achieved by a disciplinary action, and the criteria for definition of disciplinary punishment, etc., even if the normal relationship asserted by the Plaintiff is considered together, it is difficult to criticize the Defendant that the disposition of this case is objectively unreasonable. The Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

Judges Kim Jong-ri

Judges Jeon Jae-il

Judges Lee Jae-sung

Site of separate sheet

Relevant statutes

Local Public Officials Act

Article 48 (Duty of Good Faith) All public officials shall observe Acts and subordinate statutes, and perform their duties faithfully.

Article 53 (Duty of Integrity) (1) No public official may receive, directly or indirectly, any case, donation, or answer in connection with his/her duties, from a person who resides therein.

Article 55 (Duty to Maintain Dignity) No public official shall commit any act detrimental to his/her dignity.

【Local Public Officials Discipline and Appeal Provisions

Article 8 (Determination of Disciplinary Action, etc.)

(1) Criteria for the determination of disciplinary action, etc. shall be prescribed by the rules of the relevant local government within the scope determined by the Minister of Public Administration and Security.

(2) When the Committee makes a resolution on disciplinary action, etc., it shall take into account the behavior, performance record, achievements, and penance of the suspect subject to disciplinary action, etc., the details of the request for disciplinary action, etc. and other circumstances.

Rules concerning disciplinary action taken against local public officials belonging to the Superintendent of the Daejeon Metropolitan City;

Article 2 (Criteria for Disciplinary Action or Disciplinary Additional Charges)

(1) The personnel committee shall make a resolution on disciplinary action, etc. in accordance with the criteria for disciplinary action referred to in attached Table 1 and the criteria for imposing disciplinary additional charges referred to in attached Table 1-2, in consideration of the severity of misconduct and misconduct in the type of disciplinary action or disciplinary surcharge (hereinafter referred to as "measures, etc.") and negligence, the level of deliberation, performance, public service, degree of penance, other circumstances, etc. of the suspect.

Article 4 (Reduction of Disciplinary Action)

(1) If a person for whom a resolution on disciplinary action is requested has rendered any of the following meritorious services, the personnel committee may reduce disciplinary action according to the criteria for mitigation of disciplinary action as shown in Table 3: Provided, That if the relevant public official has received a disciplinary action or a warning under these Rules, the meritorious services prior to the disciplinary action or warning shall be excluded from the public service subject to mitigation, and the disciplinary action against misconduct for which the period of prescription for the disciplinary action as provided for in Article 73-2 (1) of the Local Public Officials Act is five years, and sexual assault as provided for in the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof, shall not be mitigated:

1. A meritorious service awarded a decoration or medal under the Awards and Decorations Act;

2. A meritorious service awarded with an official commendation of at least the Prime Minister pursuant to the Regulations on Official Commendation of the Government: Provided, That a public official of Grade VI or lower and a public official in technical service who has received an official commendation of the head of a central administrative agency (including the head of an agency equivalent to the head of the agency equivalent thereto) and a superintendent of education

3. A meritorious service selected as an exemplary public official pursuant to the Regulations for Exemplary Officials;

(2) If the personnel committee deems that the misconduct of a person for whom a resolution on disciplinary action is requested is caused by negligence in the course of faithfully and actively performing his/her duties, it may reduce disciplinary action according to the criteria for reduction of disciplinary action specified in attached Table 3

[Attachment 1]

A person shall be appointed.