[1] Whether the public fund embezzlement, which is one of the violations of the duty of good faith under Article 4 [Attachment 1] of the Regulations on Disciplinary Measures, etc. of Police Officials, includes securities of the same value as cash in the public fund (affirmative) and the meaning of the act of embezzlement

[2] Whether a disciplinary action is unlawful in a case where a police officer’s disciplinary action was not considered at all due to a disciplinary action on the grounds that the act of misconduct during the deliberation process of the disciplinary committee constitutes grounds for exclusion from awards and decorations, although the grounds for exclusion from award and decoration (affirmative

[1] Article 26, Article 27 of the Police Officers Act, Articles 9, 14, and 16 of the Decree on Disciplinary Action against Police Officers, Article 4 [Attachment 1] of the Rules on Disciplinary Action against Police Officers / [2] Articles 26 and 27 of the Police Officers Act, Article 16 of the Decree on Disciplinary Action against Police Officers, Article 9(1)2 and Article 9(3)1 of the Rules on Disciplinary Action against Police Officers

Plaintiff (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for the plaintiff-appellant)

The Commissioner of Busan Local Police Agency

Busan High Court Decision 2013Nu20219 decided January 22, 2014

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan High Court. The defendant's appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s ground of appeal

A. In the embezzlement of public funds, which are one of the violations of the duty of good faith of paragraph (1) of Article 4 [Attachment 1] of the Regulations on Disciplinary Measures, etc. of Police Officials, the act of embezzlement includes not only cash but also securities of the same value as cash. In addition, the act of embezzlement refers to any act that realizes the intent of unlawful acquisition, and it refers to an objective act that a person who occupies another person’s property intends to change his/her possession into possession for himself/herself and that the intention of such acquisition can be perceived from the outside.

B. Examining the record in light of the above legal principles, it is inappropriate for the lower court to determine that the instant gift certificates cannot be deemed public funds. However, so long as the Plaintiff could not be deemed to have kept the instant gift certificates as illegal acquisition intent, the lower court’s conclusion that the Plaintiff’s instant misconduct did not constitute embezzlement of public funds is justifiable, and contrary to what is alleged in the grounds of appeal, did not err by misapprehending the legal doctrine on the interpretation of embezzlement of public funds.

2. Plaintiff’s ground of appeal

A. As to the grounds of appeal on the grounds of disposition

(1) According to the reasoning of the lower judgment and the records of the first instance judgment partially cited by the lower court, the following facts are revealed: ① The grounds for disciplinary action cited in the Plaintiff’s request for disciplinary action, disciplinary resolution, and disciplinary action are as follows: “The Plaintiff is a person in charge of the investigation of the Busan Metropolitan City Provincial Police Agency and the first degree of investigation; and the Plaintiff purchased 500 copies of gift certificates under the pretext of injury at the time of rewarding a person of distinguished service for important criminals on November 8, 2010, but did not deliver them to the personnel department, which is the demand department, and concealed for a long period of about 19 months in the personal book book book page (hereinafter “instant misconduct”); ② The lower court determined that the Defendant’s imposition of 1 month after suspension against the Plaintiff (hereinafter “instant suspension disposition”) and 500,000 won for the disciplinary action against the Plaintiff; and that the Plaintiff’s application of the criteria for disciplinary action under the attached Table 4 [Attachment 1] which constitutes a violation of duty of good faith and good faith.”

(2) Examining the records in light of the relevant legal principles, the above determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the criteria for disciplinary action against police officers and changes

B. As to the grounds of appeal on the consideration of the reasons for decoration and mitigation

(1) The judgment of the court below

According to the reasoning of the lower judgment, the lower court determined that the instant disposition of suspension from office was lawful, on the ground that: (a) the determination of suspension from office of this case was lawful, on the ground that the reward and decoration mitigation under Article 9(1) of the Regulations on Disciplinary Measures, etc. by police officials, even if a person

(2) Judgment of the Supreme Court

(A) Article 16 of the Decree on Disciplinary Action against Police Officials, which is the Presidential Decree established based on Articles 26 and 27 of the Police Officers Act, provides that when a disciplinary committee makes a decision on disciplinary action, it shall take into account the ordinary behavior, work grade, public nature, the degree of penance, and the opinion of the person requesting a decision on disciplinary action, etc. of a person subject to disciplinary action. The Rules on the Standards for a disciplinary decision against a police officer and the grounds for a disciplinary decision on a police officer’s disciplinary action, etc., determined by the Commissioner General of the Korean National Police Agency, provide that a person whose disciplinary decision is requested has received an official commendation from the Prime Minister or higher pursuant to the Government Commendation Regulations: Provided, That where a police officer subject to a disciplinary decision has received an official commendation from the Commissioner of the National Police Agency or from the Vice Minister or from a superior of a central administrative agency or from a superior public official, or where an exemplary public official has been selected as an exemplary public official pursuant to the Regulations on the Punishment of Disciplinary Action (Article 9(1)2) of the Decree).

(B) According to the records, the Plaintiff was selected as an exemplary public official by the Prime Minister on the written request for disciplinary resolution prepared by the head of the Busan East Coast Guard, and the official commendation was given to the Commissioner General of the Korean National Police Agency four times as an exemplary public official, and the Minister of Government Administration and Home Affairs once as an official commendation was stated. However, the Disciplinary Committee knew the Plaintiff of the fact that the instant misconduct constitutes embezzlement of public funds and constitutes grounds for exclusion from awards and decorations, without considering a disciplinary decision.

(C) Examining these facts in light of the above legal principles, inasmuch as the lower court determined that the instant misconduct constituted “the act of neglecting duties or neglecting duties due to delay or reporting,” not “the act of neglecting duties due to delay or reporting,” the lower court did not consider public matters in the deliberation process of the disciplinary committee, and thus, the instant disposition of suspending duties, which was decided without considering public matters, is deemed unlawful, regardless of whether the disciplinary decision is appropriate, and thus, the lower court erred by misapprehending the legal doctrine on the scope of disciplinary discretion, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)