2013Guhap20097 Revocation of revocation of dismissal

A

Superintendent of Education of Jeollabuk-do

July 2, 2014

July 16, 2014

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

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

The same shall apply to the order.

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 from January 1, 2010, the Plaintiff served as the head of the administrative office at C elementary school located in the former North-gun B.

B. On April 18, 2013, the Defendant issued a disposition of dismissal and disciplinary surcharge of KRW 35,400,000 against the Plaintiff on the ground that the Plaintiff committed the following misconduct (hereinafter referred to as “instant disciplinary cause”) and violated Article 48 (Duty of Fidelity) of the former Local Public Officials Act (amended by Act No. 11396, Mar. 21, 2012; hereinafter the same shall apply) (hereinafter referred to as “each of the instant disciplinary causes”).

(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 November 24, 2010, which was managed by the Plaintiff, at the same place as a policeman on early December 24, 2010; (b) changed a copy of the passbook issued in the name of the Youngcheon-dong Agricultural Association Nong-dong Agricultural Association No. 3 Elementary School Co., Ltd., a private document on the certificate of fact without authority; and (c) exercised it with the approval of the head of C Elementary School E, who is not aware of the said alteration, as if the copy of the passbook was a document duly signed by the said head of C Elementary School E, as shown in the cash receipt book.

③ From January 1, 2010 to August 31, 2011, the Plaintiff used the accounts of the affiliated kindergarten and the accounts of the school in combination with the accounts of the affiliated kindergarten from January 1, 2010 to August 31, 201, and operated 12,24,700 won in improper manner five times from the accounts of the affiliated kindergarten, and operated 20,029,070 won in the school accounting 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 Deliberative Committee on the Education of Jeollabuk-do, but was dismissed on September 19, 2013.

D. The previous Jeju District Prosecutors’ Office: (3) in the instant case; (2) the Plaintiff was convicted of a fine of KRW 1 million on January 22, 2014 due to the grounds for the disciplinary action; and (3) the said judgment became final and conclusive on January 30, 2014.

[Ground of recognition] A without dispute, Gap evidence 1 through 10, Eul evidence 1 through 7 (including all types of numbers), the purport of the whole pleadings

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

A. Judgment on the Defendant’s main defense

According to Article 20-2 of the former Local Public Officials Act (amended by Act No. 11396, Mar. 21, 2012; hereinafter the same shall apply), the defendant's claim for the cancellation of the instant disposition among the lawsuits of this case is unlawful because it did not go through the examination and decision of the appeals review committee for Jeollabuk-do pursuant to Article 20-2. Thus, even if the former Administrative Litigation Act (amended by Act No. 3754, Dec. 15, 1984; hereinafter the same shall apply) provides for the dismissal of public officials from among several subsequent administrative dispositions, which were conducted in a series of development related to each other, and the subsequent administrative disposition cannot be seen as being subject to the same Article 7 of the former Administrative Litigation Act (amended by Act No. 9777 of Jun. 2, 2007) and thus, it cannot be asserted that there is a separate opportunity for the appeals review to be conducted by the relevant administrative appeals review committee for the first time.

B. Judgment on the merits

1) Summary of the Plaintiff’s assertion

In light of the following: (a) the grounds for the instant disciplinary action are not recognized; (b) the grounds for the instant disciplinary action are recognized; (c) the Plaintiff immediately restored the amount of embezzlement to the original state; and (d) the circumstances leading up to the audit of the instant embezzlement and the fact that F, the same public educational official as his/her spouse, had already been dismissed; and (c) each of the instant dispositions in question

2) Relevant statutes

Attached Form is as shown in the attached Form.

3) Determination

When a disciplinary action is taken against a person subject to disciplinary action who is a public official, the decision of the disciplinary authority is at the discretion of the person having authority to take the disciplinary action. However, the disciplinary action against a public official is unlawful only when it is deemed that the person having authority to take the disciplinary action has abused the discretionary authority vested in the person having authority to take the disciplinary action, and the disciplinary action against a public official has considerably lost validity under social norms, depending on the specific cases, the contents and nature of the offense causing the disciplinary action, administrative purpose to be achieved by the disciplinary action, criteria for the determination of the disciplinary action, etc., and the contents of the disciplinary action can be objectively and objectively deemed unreasonable (see, e.g., Supreme Court Decision 2006Du19211, May 11, 2007).

In light of the above legal principles, the instant case was found guilty on February 14, 2014 due to the fact that the Plaintiff’s spouse committed an indecent act in the course of investigating misconduct, such as occupational embezzlement by F, which is an audit official of the office of education of Jeollabuk-do. The instant judgment became final and conclusive. ① The developments leading up to the commencement of the audit of the grounds for disciplinary action and the intensity of the audit are likely to make it difficult to completely exclude the relationship with the instant case; ② Article 69-2 of the former Local Public Officials Act provides that the resolution of the personnel committee to impose surcharges within five times the amount of embezzlement and misappropriation of public funds should be required; ② KRW 1.8 million from the amount embezzled by the Plaintiff’s spouse was 22 days later; ② KRW 1.6 million from the Plaintiff’s spouse’s occupational embezzlement, etc.; and ② the Plaintiff’s disposition of embezzlement and 200 times from the Superintendent of the Provincial Office of Education should be revoked for one year to the Defendant, regardless of whether the Plaintiff’s discretionary authority was unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified and it is so decided as per Disposition.

The presiding judge shall be appointed from among judges.

Judges’ Trade Name

Judges Cho Jin-jin

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.