2011Guhap5065 Revocation of Disposition of Removal

Roster00

The President of the Han field University

September 19, 2012

October 31, 2012

1. The Defendant’s removal from office against the Plaintiff on April 19, 2011 is revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. The Plaintiff was appointed as a full-time lecturer at the Han field University on March 3, 1993, and was promoted to a professor at a faculty on June 1, 2004. From June 1, 2006, the Plaintiff held 00 research institutes at Han field University concurrently, and was appointed to the Director on August 00, 208.

B. On April 19, 201, the Defendant dismissed the Plaintiff from office on the following grounds for disciplinary action (hereinafter “instant disposition”).

From March 3, 1993 to April 201, 201, the Plaintiff is a professor of Han field University 00 engineering, and from June 1, 2006 to Han field University.

The building committee of local governments, such as Daejeon Metropolitan City, concurrently holding office as the head of the OO research institute attached to the Han field University.

An order issued by a State agency, etc. by participating in construction-related committees;

corporation, or an officer or employee of a construction firm or an architect office, while performing services for evaluation of various construction works;

and the number of support payments was required to the OO research institute affiliated to the Han field University, the representative of which is the Han field.

No person in charge of business, such as a construction company, etc., without making a deposit account book, shall enter the Plaintiff's deposit account.

52 times in such a manner as to prohibit 70,000 won, 52,017, 140 won in cash over 35 times;

There is a fact that 125, 017, and 140 won are received through 87 times, such as receiving the source.

In relation to this case, the plaintiff raised donations of KRW 6,140,000 in the judgment of the court of first instance of Daejeon District Court.

In violation of the Act on the Collection and Use of Donations (hereinafter referred to as the "Contribution Act"), and a city

A support fund from a construction company, etc. to its account under the name of the construction company, etc. for various event support payments of the construction center;

The plaintiff quash who received transfer and used it as the event expenses or operating expenses of the Urban Building Center, although there is a duty to do so.

embezzlement of KRW 31,276,260, and 260, when consumed for personal purposes, and shall be sentenced to a fine of KRW 10,000.

of this chapter.

The above act of the plaintiff violates the provisions of Article 61 (Duty of Integrity) of the State Public Officials Act.

Article 78 (Disciplinary Reason) Paragraph (1) 1 shall apply.

C. On May 18, 2011, the Plaintiff filed a petition review on the instant disposition, but the Appellate Committee dismissed the Plaintiff’s petition on August 22, 2011.

【Ground for recognition】 Facts without dispute, entry of Gap evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Absence of grounds for disciplinary action

The Plaintiff, while holding 00 major departments of Han field University, planned and held various events, such as a design forum, and held as the president of the research institute, held a variety of events by forming a group of events (CADO) comprised of attorneys-at-law and experts in each field, such as CEO in Daejeon area. The Plaintiff was offered support money in order to cover expenses incurred in holding such events, which is not the Plaintiff’s individual but not related to his/her duties. 31,276,260 won that the Plaintiff personally used was paid by the Plaintiff to cover the costs of the event. Accordingly, the Plaintiff did not violate the duty of integrity.

2) A deviation from and abuse of the authority to impose disciplinary discretion

Even if it is recognized that the Plaintiff violated the Plaintiff’s duty of integrity, the instant disposition is unlawful in light of the following: (a) the Plaintiff’s act of raising support payments and its place of use; (b) the company that paid support payments does not demand the Plaintiff’s punishment; (c) the Plaintiff has faithfully worked to become a witness without any disciplinary action during the high-priced period; and (d) the Plaintiff has made many efforts for the development of 00 majors of the Han field University.

(b) Relevant statutes;

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

C. Determination as to whether there are grounds for disciplinary action

1) Facts of recognition

A) From August 24, 2006 to June 25, 2009, the Plaintiff was commissioned as ordinary universities, the Korea Rail Network Authority, Daejeon Metropolitan City, Busan International Building and Cultural Heritage Committee, Gyeongbuk University, Chungcheongnambuk University, Chungcheongnambuk University, Multifunctional Administrative City Construction Agency, and the public sector construction advisory members and examiners of Daejeon Metropolitan City.

B) On May 4, 2010, the Board of Audit and Inspection demanded that an executive officer or employee of the relevant construction enterprise or the relevant stable office pay money or goods to the research institute located in the research institute by taking advantage of the aforementioned position, and requested that the Plaintiff receive a total of KRW 73 million from January 9, 2007 to July 3, 2009, and received a total of KRW 52,017,140 through cash payments over 35 times, and accordingly, the Minister of Education, Science and Technology notified the Defendant of the demand for disciplinary guidance on May 6, 2010.

C) On February 18, 201, the Daejeon District Court convicted the Plaintiff, on May 30, 2007, of the crime of embezzlement of KRW 60,140,000,00,000, in total, on 51 occasions under the name of the academic symposiums, which were held by the said research institute, by soliciting or requesting the contribution of donations by sending a letter of request for support under the name of 00 research institute from around 16 to May 29, 2009 to 16 construction companies and architectural firms (hereinafter “construction companies, etc.”) located in the 16th place of construction company or architectural firms located in the 16th place of construction company (hereinafter “construction companies, etc.”), and convicted the Plaintiff of the crime of embezzlement of KRW 60,00,000,000,000,000 for the purpose of collecting donations and using donations for the purpose of committing the crime of embezzlement of KRW 261 to June 26, 2007.

D) Both the Plaintiff and the Prosecutor appealed on this part of the crime of occupational embezzlement, and the Plaintiff asserted not guilty on the part of the crime of occupational embezzlement, stating that “the Plaintiff was paid the money used by 00 Center Research Institute with personal funds,” but the Daejeon District Court, August 11, 201, presumed that the Plaintiff embezzled the money with an intent to acquire unlawful profits if the Plaintiff failed to explain the location or use of the money used by the Plaintiff himself/herself, etc., on the grounds that “the Plaintiff would not recognize the Plaintiff’s legal action by itself,” on the grounds that the Plaintiff’s fee submitted by the Plaintiff is insufficient to recognize the Plaintiff’s legal action, and that the Plaintiff’s appeal by both the Plaintiff and the Prosecutor was dismissed (No. 201No5777).

E) The Plaintiff appealed, but the Supreme Court rendered a judgment dismissing the appeal on March 29, 2012 (No. 2011Do1499).

[Ground of recognition] Gap evidence Nos. 1 through 3, 27, Eul evidence Nos. 2, 4-1, 2, and 8 respectively, the purport of the whole pleadings

2) Determination

A) As seen in the circumstances leading up to the instant disposition, the Defendant stated that the Plaintiff received KRW 125,017, and KRW 140 over 87 times as the grounds for the instant disposition. First, we examine the amount of money that the Plaintiff received as a support payment from a building company, etc.

However, as seen earlier, the Board of Audit and Inspection recognized that the Plaintiff’s total sum of 125,017,140 won (=7,300,000 won transferred to the account + 52,017,140 won) was subject to disciplinary action based on the Plaintiff’s findings as a result of its self-inspection (i.e., the aforementioned facts found as follows: (i) the Daejeon District Prosecutors’ Office recognized that only 6,140,000 won was transferred to the Plaintiff’s account as a result of investigation, and only 1,50,000 won was indicted; (ii) it was difficult to recognize that the Plaintiff was subject to disciplinary action by the Board of Audit and Inspection based on the Plaintiff’s findings as follows; (iii) it was difficult to recognize that the Plaintiff was subject to disciplinary action by the Board of Audit and Inspection based on the Act on 160,000 won and 140,000 won, and (iv) it was found that the Plaintiff was subject to disciplinary action by the Board of Audit and Inspection based on the grounds for disciplinary action.

Therefore, even though the Plaintiff is deemed to have received KRW 60,00,00 from a building company, etc. as a support payment, it cannot be a legitimate ground for disciplinary action, since it is not recognized as a part exceeding the amount (which is recognized by the Plaintiff).

B) Next, we examine whether the Plaintiff’s receipt of KRW 60,140,000 from a building company, etc. as a support fund for 00 research institutes can be a ground for disciplinary action.

Article 61 (1) of the State Public Officials Act provides that "A public official shall not directly or indirectly question any case, gift, or entertainment in connection with his/her duties, and shall not accept any case, gift, or entertainment." The purpose of this provision is not to prevent a public official from committing an unlawful act in the course of performing his/her duties in exchange for an unlawful solicitation in connection with his/her duties, but to prevent a public official from receiving money or goods in relation to his/her duties without any prior illegal solicitation, or the time of receiving money or goods, etc., in order to protect a public official's net integrity and the unfairness of his/her duties, and to ensure the appropriateness of his/her performance of duties (see Supreme Court Decision 200Du1813, Nov. 12, 2004, etc.).

Meanwhile, Article 8(1) of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission (hereinafter “Corruption Act”) provides that “The code of conduct to be observed by a public official pursuant to Article 7 shall be prescribed by the Ordinance of the Ministry of Government Administration and Home Affairs, the National Assembly Regulations, the Supreme Court Regulations, the Constitutional Court Regulations, the Constitutional Court Regulations, the National Election Commission Regulations, or the internal regulations of public service-related organizations.” Paragraph (3) of the same Article provides that “public officials may be subject to disciplinary action when they violate the code of conduct for public officials pursuant to paragraph (1).” Article 14(1) of the Code of Conduct of Public Officials enacted pursuant to the above provision provides that “public officials shall not receive money, movable property, gift, or entertainment from persons related to their duties.” Article 2 subparag. 1 of the Code of Conduct of Public Officials sets out the meaning of “persons related to their duties,” and one of them refers to adjudication, determination, examination, appraisal, examination, mediation, etc., or individual or local government-related organization.

As to this case, the following circumstances can be seen by adding up the items in Eul Nos. 1 and 5 to the above provisions, i.e., the plaintiff was commissioned as a member or examiner at several national universities, local governments, public institutions, etc. at the time when the plaintiff received money from the building company, etc.; ii) it is possible for the plaintiff to participate in the construction design competition, etc. held by the National University as the adviser or examiner; and (iii) it falls under the "person related to the duties" in the code of conduct of public officials; (iv) 6 companies, among 16 companies, who actually received money from the plaintiff under their name, did not receive money from the plaintiff as the advisor or examiner; and (iv) 6 companies, who did not receive money from the plaintiff under their own name, did not receive money from the plaintiff as 600 companies, 6 companies, who did not receive money from the plaintiff under their own name.

Therefore, the Plaintiff’s act of receiving KRW 60,140,00 from a building company, etc. as a support payment to the 00 research institute is a ground for disciplinary action in accordance with Article 61(1) of the State Public Officials Act and Article 78(1)1 of the State Public Officials Act and Article 8(3) of the Anti-Corruption Act as a violation of Article 14(1) of the Code of Conduct for Public Officials.

D. Determination as to whether the disciplinary discretion has been exceeded or abused

When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, it shall be held 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 the exercise of authority has considerably lost validity under the social norms, it may be deemed unlawful. If a disciplinary measure against a public official has considerably lost validity under the social norms, it shall be deemed that the contents of the disciplinary measure can be objectively clearly and clearly unfair when comprehensively considering various factors, such as the content and nature of the misconduct causing the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, and the criteria for guidance, etc. according to the specific case. Even if the exercise of authority to take the discretion of the person having authority to take the disciplinary measure is left at the discretion of the person having authority to take the disciplinary measure, it is against the public interest principle that should exercise the authority to take the disciplinary measure for public interest, or if the person having authority to take the disciplinary measure has generally lost balance compared to the degree of flight, it is unlawful that the person has violated the principle of proportionality or has violated the principle of equality and discretion (see 96).

④ In light of the following facts: ① the Plaintiff’s public official who is in need of high integrity and morality was in the position of the National University faculty member, and the institution sponsoring or ordering the Plaintiff’s activities as its advisory members without any particular awareness of the position of the faculty member, which is likely to bring about doubts as to the integrity of public officials and fairness in performing duties by receiving donations from a construction company, etc. which is highly likely to participate in games or contracts; ② the Plaintiff’s misconduct is inevitable to take a heavy disciplinary measure against the Plaintiff’s private school without any transparent management of the money received as above; ② the Plaintiff’s public official was in need of 0 years prior to the Plaintiff’s appointment of the research institute; ② the Plaintiff’s appointment of the Plaintiff’s public official as a public official for 0 years prior to the Plaintiff’s appointment of the research institute; ② the Plaintiff’s appointment of the Plaintiff’s public official as a full-time lecturer for 16 years prior to the Plaintiff’s appointment of the research institute; ② the Plaintiff’s appointment of the Plaintiff as a full-time lecturer for 16 years prior to the Plaintiff’s appointment.

Therefore, this part of the plaintiff's assertion is justified.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and it is decided to accept it, and it is decided as per the disposition.

Judges Kim Jong-ri

Judges Kang Jin-hee

Judges Jeon Jae-il

1) As long as a criminal judgment has become final and conclusive in an administrative litigation, it is difficult to adopt a factual judgment of the above criminal case.

Unless there are special circumstances, facts contrary to this cannot be recognized (Supreme Court Decision 98Du10424 delivered on November 26, 199).

See Decision, etc.) Each description of Gap evidence 28 to 39 (including a Serial number for those with a Serial) is the above criminal

It is difficult to recognize that there are special circumstances that it is difficult to employ the embezzlement facts recognized in the judgment, and otherwise, this is difficult.

there is no evidence to prove that there is no such evidence.

2) The Defendant does not indicate Article 8(3) of the Anti-Corruption Act and Article 14(1) of the Code of Conduct for Public Officials at the time of the instant disposition

at the time of the disposition to the extent that the disposition does not change the specific facts stated therein.

it is possible to do so.