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헌재 2013. 8. 29. 선고 2012헌마265 공보 [기소유예처분취소]
[공보203호 1222~1224] [전원재판부]
Main Issues

The case holding that the disposition of suspending prosecution against the claimant's obstruction of performance of official duties infringes the claimant's right to equality and the right to pursue happiness.

Summary of Decision

In full view of the provisions of the Private School Act, since the person who has the authority to appoint and dismiss the teacher is a school juristic person concerned, the appointment and dismissal of the teacher is not the duties of the office of education, but the duties of the school juristic person is not the duties of the office of education, and even if the private school does not report it to the office of education in connection with the appointment and dismissal of the teacher or makes a false report, this does not directly affect the validity of the appointment and dismissal of the teacher. The “report on the appointment and dismissal of the teacher” submitted to the office of education is not a procedure for obtaining authorization and permission from the office of education for the appointment and dismissal of the teacher, but merely a report required under the administrative procedure, and even if

[Reference Provisions]

Articles 10 and 11 of the Constitution

Article 137 of the Criminal Act

Articles 16(1), 53-2(1), 54(1), and 74(2) of the Private School Act

Reference Cases

Supreme Court Decision 2000Do4993 Delivered on October 9, 2003

Parties

at least an attorney-at-law of the Gu office

Prosecutor of the Dong District Prosecutors' Office;

Text

On December 15, 2011, the respondent's disposition of suspending prosecution against the claimant in the case of Busan District Prosecutors' Office in 2011 punishment No. 24624, 27136, 27847 is revoked because it infringes the claimant's right to equality and the right to pursue happiness.

Reasons

1. Case summary

A. On December 15, 2011, the claimant was subject to a disposition of suspending the prosecution (No. 24624, 27136, 27847, hereinafter “instant disposition of suspending the indictment”) against the respondent for the crime of obstruction of the performance of justice by deceptive means (No. 24624, 27136, and 27847, the Dong Office of the Busan District Prosecutors’ Office). The gist of the suspected crime is

As the chief director of the school foundation ○○ school, the applicant independently applied for the written examination for the appointment of new teachers in January 18, 201, not for the applicant’s designated place of examination but for the school room in the school room without any examination supervision. In the written examination for the appointment of new teachers in 2011, the applicant prepared false documents as if he/she held the board of directors although he/she did not hold the board of directors for the appointment of new teachers. On March 7, 2011, the ○ Office of Education issued a false report as if he/she had lawfully passed the open recruitment procedure, such as holding a board of directors’ meeting, and interfered with the preparation of statistics by the public official of the Office of Education and the payment of personnel expenses based on the results.

B. On March 15, 2012, the claimant asserted that the suspension of indictment of this case infringed on the claimant’s right to equality and the right to pursue happiness, and filed an adjudication on constitutional complaint of this case seeking revocation thereof.

2. Determination:

A. Key issue

The crime of obstruction of performance of official duties by fraudulent means is established in cases where a person misleads the other party, misleads the other party, or uses the site, thereby inducing him/her to commit a wrong act or make a disposition with regard to the lawful duties of a public official delegated by Acts and subordinate statutes (see Supreme Court Decision 200Do4993, Oct. 9, 2003).

The claimant recognizes that the public official in charge of the Busan Metropolitan City Office of Education has made a false report on the appointment of the teacher in the middle-gu Busan Metropolitan City Office of Education as if he/she had lawfully followed the procedure of open recruitment, such as holding

Therefore, the key issue of this case is whether it constitutes the crime of obstruction of performance of official duties by fraudulent means, based on such false report on the statistics of the number of teachers and allowing public officials in charge of the Busan Metropolitan Office of Education to use the statistics as materials for reference to the payment of personnel expenses of teachers.

B. Determination

(1) According to the Private School Act, the board of directors shall deliberate and decide on matters concerning the appointment and dismissal of the head of a private school and teachers established by a school foundation (Article 16(1)5), and appointment and dismissal of a school foundation and a private school teacher established and operated by a private school foundation and a private school manager, upon the recommendation of the principal of the school concerned, shall be appointed and dismissed by the school foundation or a private school manager (Article 53-2(1)1). When a person who is authorized to appoint and dismiss teachers of various levels of schools appoints or dismisses teachers, he/she shall report to the competent agency within seven days from the date of appointment and dismissal (Article 54(1)), and if a report is not made or a false report is made, he/she shall be punished by a fine for negligence not exceeding five

(2) Comprehensively taking account of the above provisions of the Private School Act, since the person who has the authority to appoint and dismiss the teacher is the school juristic person concerned, the appointment and dismissal duty of the teacher constitutes not the duties of the Office of Education but the school juristic person's duties, and even if the private school does not report it to the Office of Education in connection with the appointment and dismissal of the teacher or makes a false report, it cannot directly affect the validity

In addition, "report on the appointment and dismissal of a teacher" submitted to the Office of Education by a school foundation is not a procedure for obtaining authorization or permission from the Office of Education for the appointment and dismissal of a teacher, but merely a de facto report required

In addition, even if a public official in charge of the Office of Education, based on the above report on appointment and dismissal, prepares a statistical status of the number of teachers and uses the statistics as reference materials to pay the personnel expenses of the teachers, this is not naturally scheduled as a follow-up procedure according to the appointment and dismissal report under the law, but is merely a de facto measure taken by the Office of Education after referring to

(3)Therefore, even if the claimant has made a false report on appointment and dismissal to the officials in charge of the Busan Metropolitan Office of Education, it cannot be said that the obstruction of performance of official duties by deceptive means is constituted

C. Sub-decision

This case's suspension of prosecution is an arbitrary exercise of prosecutor's right to decide on the legal principles on the crime of obstruction of performance of official duties by fraudulent means under Article 137 of the Criminal Act, and due to which the claimant's right to equality and the right to pursue happiness was infringed.

3. Conclusion

Therefore, the suspension of indictment of this case is revoked, and it is so decided as per Disposition by the assent of all participating Justices.

Judges

Justices Lee Jong-chul (Presiding Justice)

For the purpose of the Cho Chang-ho Senior Clerks' Library;