(B)Revocation of revocation of a disposition to dismiss a person;

A

Superintendent of Education of Jeollabuk-do

Jeonju District Court Decision 2013Guhap20097 Decided July 16, 2014

October 20, 2014

November 3, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

The Defendant’s dismissal against the Plaintiff on April 18, 2013 and the disposition of disciplinary surcharge shall be revoked.

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Details of the instant disposition

A. On January 21, 2004, the Plaintiff was appointed as a local public educational official belonging to the Office of Education of Jeollabuk-do, and served as the head of the administrative office from January 1, 2010 to the Seoul Elementary School located in the Jeonbuk-gun B.

B. On April 18, 2013, the Defendant issued a dismissal and disciplinary action surcharge of KRW 35,400,000 against the Plaintiff on the ground that the Plaintiff committed the following misconduct (hereinafter “instant disciplinary action”) and violated Article 48 (Duty of Fidelity) of the Local Public Officials Act (hereinafter “instant disciplinary action”), following a resolution of the Governor’s Personnel Committee of Jeollabuk-do Office of Education, on April 18, 2013 (hereinafter “instant dismissal disposition”), and “the instant disciplinary action surcharge disposition” collectively, and “each of the instant dispositions”).

(1) Occupational embezzlement.

On September 7, 2010, the Plaintiff connected the Agricultural Bank from the C Elementary School Administrative Office located in the Seoul Elementary School Office in the Jeonbuk-gun, North Korea, to the Agricultural Cooperative in the name of the Plaintiff, transferred KRW 1.8 million from the Nong School Account (Account Number D) to the Agricultural Cooperative in the name of the Plaintiff, which was managed by the Plaintiff, and then embezzled it for the purpose of private use, such as his card payment, hospital expenses, etc., from the Jeonju-gun, around that time.

(C) Around November 24, 2010, the Plaintiff arbitrarily transferred KRW 10 million from the above NongHyup account under the victim’s name to the Plaintiff’s name, and then embezzled it for business purposes by consuming the purchase and sale of shares in Jeonju’s land for private purposes, such as purchase and sale of shares.

(2) Alteration of private documents and the uttering of forged private documents.

On December 2, 2010, the Plaintiff: (a) deleted and copied the portion of “A” in the name of personal investment column among the details of the transfer from the above No. 11, 24. Of the above No. 11, 2010 passbook managed by the Plaintiff at the same place as a police officer; (b) changed a copy of the passbook issued in the name of the c elementary school in the name of the Gucheon-dong Nong-dong Agricultural Bank issued a private document concerning the certificate of fact without authority; and (c) thereafter, exercised the copy of the passbook issued in the name of the c elementary school in the name of the c elementary school, which is a private document concerning the certificate of fact, to the principal of C elementary school E who is not aware of the said alteration

③ From January 1, 2010 to August 31, 2011, the Plaintiff used the accounts of the attached kindergarten and the accounts of the school accounts of the attached kindergarten from January 1, 2010 to August 31, 201, combined the accounts of the attached kindergarten and the accounts of the attached kindergarten, operated 12,24,700 won in improper ways five times from the accounts of the attached kindergarten, and operated 20,029,070 won in the accounts of the school in 22 times.

④ In preparing accounting documents from September 7, 2010 to November 24, 201 of the same year with an intention to conceal the occupational embezzlement under paragraph (1) (i) and to mislead the performance of duties, the Plaintiff entered the balance in the “Auolination System” with recording the actual and other accounting records by means of raising money from another account passbook.

C. The Plaintiff filed an appeal review on the instant dismissal disposition with the Jeollabuk-do Education Appeals Review Committee, but was dismissed on July 5, 2013.

D. The previous Jeju District Prosecutors’ Office: (4) was convicted of the instant disciplinary cause; and (2) was convicted of the instant disciplinary cause; and (2) the Plaintiff was convicted of a fine of KRW 1 million on January 22, 2014 by the previous Jeju District Court 2013 and 902 on January 30, 2014. The said judgment became final and conclusive on January 30, 2014.

E. Meanwhile, the Plaintiff returned KRW 1.8 million, which was embezzled on September 7, 2010, to the 29th day of the same month, and KRW 10 million embezzled on November 24, 2010, by depositing in each account passbook on the 30th day of the same month. The Plaintiff’s return of the embezzlement amount, as such, did not confirm the circumstances, such as that the audit was conducted or that the embezzlement was discovered at that time.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 9, 10, and the purport of the whole pleadings

2. Judgment on the Defendant’s main defense

A. The defendant's main defense

The defendant asserts that the part concerning the claim for revocation of the disciplinary surcharge disposition of this case among the lawsuits of this case is unlawful because it did not undergo an examination and decision by the appeals review committee of Jeollabuk-do under Article 20-2 of the Local Public Officials Act

B. Determination

Article 20-2 of the Local Public Officials Act provides that "no administrative litigation against any disposition under Article 67, any other unfavorable disposition against the principal's will, or any omission shall be lodged without going through the review and decision of the review committee." Since a provisional measure against disciplinary action constitutes "other unfavorable disposition against the principal's will" under the above provision, it shall be deemed "other unfavorable disposition against the principal's will." Thus, when a party files a lawsuit seeking cancellation of a disciplinary measure, it shall be deemed that the party's appeal procedure under

However, Article 18(3)2 of the Administrative Litigation Act provides that "if one of the dispositions related to the contents or dispositions taken by stages for the same purpose has already been decided on an administrative appeal, an administrative litigation may be instituted without going through a ruling on the administrative appeal." Even at the time of the enforcement of the former Administrative Litigation Act (wholly amended by Act No. 3754 of Dec. 15, 1984), where there is no provision regarding a case that does not need to go through a prior procedure unlike the current Administrative Litigation Act, the prior administrative disposition and the subsequent administrative disposition are made in a series of developmental processes related to the contents of the prior administrative disposition, whether the subsequent administrative disposition were made as a result of the completion of the prior administrative disposition, or if there was a series of correlation between the two dispositions and dispositions taken by stages for the same purpose, the subsequent action against the administrative disposition may be brought to the same order without going through a ruling on the administrative appeal (see, e.g., Supreme Court Decision 97Da17889, supra., that the previous administrative disposition had not satisfied the reason for the prior administrative disposition.

In light of the provisions of the Administrative Litigation Act and relevant legal principles, Article 69(1) of the Local Public Officials Act provides that "if a public official falls under any of the following (grounds for disciplinary action), a resolution of disciplinary action shall be requested, and a disciplinary action shall be taken according to the result of disciplinary action." Article 69-2(1) of the same Act provides that "where the grounds for disciplinary action against a public official are embezzled and misappropriated pursuant to Article 69, a resolution of imposing disciplinary additional charges within five times the amount of embezzlement and misappropriation of public funds in addition to the pertinent disciplinary action shall be requested to the personnel committee." Article 8-2(1) of the Local Public Officials Discipline and Appeal Regulations provides that "when the Committee requests a resolution of imposing disciplinary additional charges pursuant to Article 69-2(1) of the Act, it shall be deemed that the dismissal of the public official or public official of this case is only one of the grounds for disciplinary action of embezzlement and misappropriation, and thus, the dismissal of the plaintiff shall be separately based on the same grounds for disciplinary action of Jeollabuk-do."

Therefore, the defendant's main defense is without merit.

3. Determination on the legitimacy of each of the dispositions of this case

A. Summary of the plaintiff's assertion

(4) The grounds for the instant disciplinary action are not recognized as the non-prosecution disposition by the prosecutor, and (3) in the case of the instant disciplinary action, the Plaintiff’s failure to account the newly introduced administrative finance system is not an improper accounting operation with a different purpose. In light of the following: ① The instant grounds for disciplinary action are acknowledged as the fact of embezzlement, but the Plaintiff’s entire amount of embezzlement was immediately recovered, but the recovery was made voluntarily, not through the discovery of audit or embezzlement; and there was a procedural problem in the audit process for the Plaintiff, the Defendant dismissed the Plaintiff and imposed disciplinary surcharge up to three times the amount of embezzlement on the Plaintiff, despite the above circumstances, is unlawful as it deviates from and abused the discretionary authority.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether a disciplinary measure should be taken against a person subject to disciplinary action, who is a public official, is at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take the disciplinary measure as an exercise of discretion significantly lacks validity under the social norms, such a measure is unlawful. 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 comprehensively taking into account various factors, such as the content and nature of the misconduct causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for a disciplinary decision, etc., depending on the specific cases, where the contents of the disciplinary measure can be objectively and clearly deemed unreasonable (see, e.g., Supreme Court Decision 98Du12017, Jan. 1, 1998).

On the other hand, the criteria for imposing disciplinary action and disciplinary action charges prescribed in the "Rules on Disciplinary Action Taken by Local Public Officials of the Superintendent of the Jeollabuk-do Office of Education" (see subparagraph 11 of this case; hereinafter referred to as the "Rules on Disciplinary Action") which are the basis of each disposition of this case are merely the regulations on internal administrative affairs of administrative agencies, and thus, they have no external binding force.

2) Based on these legal principles, we examine the instant case back to the instant case.

A) Judgment on the dismissal of this case

(1) First, the grounds for the instant disciplinary action are as follows: (a) the Plaintiff entered an amount equivalent to the amount of embezzlement in order to conceal the fact of occupational embezzlement by making the entry of the actual and other accounting records into the “Eduuination System”; (b) it is established by actively inputting false information or modifying or deleting the input data; and (c) simply omitting the entry of transfer details as in the case of the Plaintiff does not constitute a forgery or alteration of public electronic records, etc.; (d) on the contrary, the fact that the prosecutor issued a non-prosecution disposition without suspicion of the Plaintiff’s violation of public electronic records; (b) on the other hand, even based on the rules on disciplinary action, the prosecutor did not request disciplinary action but complete internal treatment, and (d) the grounds for the instant disciplinary action cannot be recognized as legitimate grounds (Article 2-2 subparag. 1).

(2) Next, upon examining the grounds for disciplinary action (3) of this case, the Plaintiff appears to have experienced difficulties for the Plaintiff to apply new accounting rules since January 1, 2010 to August 31, 201, by violating the accounting rules, and the total number of improper operations is KRW 27,200,000,000,000,000,000,000,000 evidence and evidence as mentioned above and the purport of the entire argument as stated in subparagraph 6. In other words, as the administrative finance system was introduced from the fiscal year 2010 to the first time, it was likely that improper accounting due to the failure of the first time due to the introduction of the administrative finance system from the fiscal year 2010 to the first time. In addition, it is difficult to view that the Plaintiff’s failure to apply new accounting rules, other than the Plaintiff’s personnel specialized in accounting affairs, was included in the number of office employees, and that the Plaintiff did not have any unlawful operation or loss of accounting rules.

(3) Finally, regarding the grounds for disciplinary action, ① the act of embezzlement of public funds by an accounting officer is difficult to justify for any reason, and the amount embezzled by the Plaintiff is less than 11.8 million won. However, the Plaintiff voluntarily recovered the entire amount for 22 days in the case of embezzlement amounting to 1.8 million won, and such recovery does not result in the discovery of facts of audit or embezzlement, and the Plaintiff’s embezzlement does not seem to have been temporarily embezzled for about 2 years before December 2012, and the Plaintiff appears to have been subject to disciplinary action, ② The Plaintiff’s above embezzlement is deemed to have been subject to disciplinary punishment for 10 million won in the case of the instant case, ② The Plaintiff appears to have been subject to disciplinary punishment for 10 million won in the case of the instant case, ② The Plaintiff appears to have been subject to disciplinary punishment for 20 years in view of the fact that there was no reason for excluding the above embezzlement of public funds, ② The Plaintiff appears to have been subject to disciplinary punishment for 20 years in view of social norms.

(4) If so, the dismissal of this case is unlawful.

B) Determination on the instant disciplinary surcharge disposition

According to the rules on disciplinary action, where the degree of misconduct in the embezzlement of public funds is weak and intentional (in the case of the plaintiff's embezzlement of public funds, where the degree of misconduct is weak, the same shall apply as mentioned above) and the amount of disciplinary surcharge is imposed up to two to three times the amount of embezzlement of public funds. Meanwhile, Article 69-2 of the Local Public Officials Act provides that the plaintiff has already been sentenced to a fine of one million won due to the embezzlement of the above public funds, while the plaintiff has already completed the compensation measures by restoring the amount of embezzlement and has already been sentenced to a fine of one million won due to the embezzlement of the above public funds. In addition, in full view of all other circumstances examined in the judgment on the dismissal disposition of this case and the fact that the dismissal disposition of this case must be revoked and determined again on the ground that it is unlawful, the amount of disciplinary surcharge attached thereto should also be determined again, and the disposition of this case imposing disciplinary surcharge equivalent to three times the amount of the disciplinary surcharge of this case shall also be deemed to be unlawful.

D. Sub-committee

Therefore, each of the dispositions of this case must be revoked in an unlawful manner.

4. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and the senior judge;

Judges Kim Jae-han

Judges Lee Jae-hwan

1) However, in the first instance court of this case, the Plaintiff changed its assertion that the embezzlement itself is recognized.

2) The proviso to Article 4(1) of the Rules on Disciplinary Action, and Article 73-2(1) of the Local Public Officials Act

3) The commendation that the Plaintiff, a local administrative assistant (Grade VII), received from the Defendant, constitutes grounds for disciplinary mitigation under Article 4(1)2 of the Rules.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.