2014Nu101 Revocation of a disposition of removal

A

Buniversity President

Chuncheon District Court Decision 2012Guhap964 Decided December 20, 2013

October 19, 2015

December 9, 2015

The judgment of the first instance shall be revoked.

The Defendant’s removal on November 7, 201 from office against the Plaintiff shall be revoked.

All costs of litigation shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act shall be cited in the part of the reasoning of the judgment of the first instance.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) There is a significant defect in disciplinary proceedings, such as forcing a disciplinary committee to take disciplinary actions without giving the plaintiff an opportunity to provide sufficient explanation in violation of Article 50(3) of the Public Educational Officials Act.

(2) The Defendant’s charges of disciplinary action are not alleged on the ground that the Defendant did not commit any indecent act against students.

(3) Even if a domestic disciplinary cause exists, a removal disposition is an illegal disposition that goes against the principle of proportionality because it is excessively excessive in comparison with other disciplinary cases against sexual harassment and sexual assault cases, and the balance between the purpose and means is considerably lost.

(b) Opportunities to vindicate;

Article 50(3) of the Public Educational Officials Act provides that "a decision made on disciplinary action shall be null and void unless the person subject to disciplinary action is given an opportunity to state his/her opinion," and Article 9(2) of the Public Educational Officials Disciplinary Decree provides that "A disciplinary committee shall provide the person subject to disciplinary action with sufficient opportunity to state his/her opinion, and a person suspected of disciplinary action may state, in writing or orally, facts favorable to him/her and submit evidence." This can be said to specifically implement the hearing right, one of the important procedural rights derived from the principle of due process under the Constitution, in the disciplinary proceedings against public educational officials.

Since the right to a hearing in a disciplinary procedure requires a sufficient opportunity for the party subject to a disciplinary action to vindicate the facts of the disciplinary case, the person having authority to take disciplinary action shall decide whether to punish him/her and the degree of his/her speech without prejudice to the facts of the disciplinary case. In addition, from the perspective that it is impossible to properly grasp the true facts without guaranteeing procedural justice, the right to a hearing is a minimum premise for securing substantive justice beyond simply guaranteeing the party’s right to defense. In particular, disciplinary action, including expulsion of occupation, would put a disadvantage to the person subject to a disciplinary action without undergoing strict judicial procedures such as a declaration of conviction of criminal procedure, and thus, it is no more important to give the party a sufficient opportunity to vindicate during the disciplinary procedure.

(c) Whether sufficient opportunity to vindicate exists;

In full view of the evidence No. 1-2, No. 1-1, No. 1-2, No. 1-1, No. 14-2, and No. 14, the testimony of witnesses of the first instance trial, the results of the examination by our court, and the overall purport of oral arguments at the university No. 20, the two universities organized a committee to investigate the truth of the Plaintiff’s sexual indecent act on April 13, 201. The committee received reports on four students including D (hereinafter referred to as “non-party 3”) from the instant disposition to the Plaintiff on the ground that the Plaintiff’s sexual indecent act was not conducted on the ground that the Plaintiff did not engage in any other sexual indecent act on the part of the Plaintiff at the time of his/her previous investigation, and that the Plaintiff did not have any other sexual indecent act on the part of the Plaintiff at the time of his/her request. However, the Investigation Committee did not recognize the Plaintiff’s sexual indecent act on May 24, 2011.

In full view of these facts, although the Defendant Disciplinary Committee did not specify sexual indecent conduct at the time of E University employees in a written request for disciplinary decision and written resolution on disciplinary resolution (However, the Plaintiff’s act of sexual indecent conduct against E University students is also stated in the content that the Plaintiff does not recognize it at all), the Defendant’s resolution on dismissal against the Plaintiff may be recognized based on the grounds for disciplinary action as well. As such, the Defendant deprived the Plaintiff of the opportunity to prepare his/her opinion and submit explanatory materials by omitting the substantive grounds for disciplinary request, the instant disposition ought to be deemed as having a serious procedural defect.

Even though it is difficult to view that the Plaintiff’s disciplinary committee directly took the grounds for disciplinary action against the Plaintiff’s sexual indecent act at the time of his/her employment at E University, considering that the Plaintiff’s access to the same veterinary method from the time of his/her employment to the same time as that of the disciplinary committee members and the core grounds for the Plaintiff’s choice of removal from office, which is the most severe level of sexual indecent act to hear students intentionally, intentional, and repeatedly, it is evident that the Plaintiff included at least an important reason. Article 50(3) of the Educational Officials Act does not impose any special restrictions on the subject of the disciplinary committee’s explanation, and reflecting the disciplinary action on the charges of sexual indecent act at E University, which is irrelevant to the suspicion specified in the written request for disciplinary decision, would result in the same effect as taking disciplinary action without any lawful disciplinary procedure, and thus, it cannot be allowed as it is, in light of the purport of the principle of justice and punishment of the Plaintiff, not only is the Defendant obliged to give 20 years an opportunity to defend the facts constituting an indecent act in a criminal trial but also contravene the principle of justice of 20.

However, as seen earlier, the Defendant did not enter the content of the sexual indecent act at E University at the time of his/her employment in the written request for a disciplinary decision, and the disciplinary committee held thereafter asked the case where the E University was sexual indecent act without specifying the specific suspected facts and did not make any further inquiry as to the denial of the Plaintiff. In order for the Plaintiff to present his/her opinion on this part, at least in advance, he/she must be able to know the approximate point of time of sexual indecent act suspected by the Disciplinary Committee and the outline of the case, such as the victim. However, the Defendant only demanded the Plaintiff to dismiss sexual indecent act, and the Defendant completed the disciplinary proceedings without providing any information on what is the case subject to questioning. In this circumstance, it is reasonable to deem that the Defendant: (a) determined the core facts of suspicion other than those specified in the written request for a disciplinary decision, but deprived the Plaintiff of his/her opportunity to explain it; and (b) therefore, it is reasonable to deem that there is any significant procedural defect.

D. Sub-determination

Therefore, the instant disposition is unlawful because it did not provide sufficient opportunity for the suspect to vindicate. The Plaintiff’s assertion is with merit, and thus, the instant disposition is unlawful without considering the existence of grounds for disciplinary action, and whether it deviates from and abused discretion.

3. Conclusion

Therefore, the plaintiff's claim should be accepted on the grounds of its reasoning, and the judgment of the court of first instance is so unfair as to this conclusion, and it is so decided as per Disposition after cancelling the judgment of the court of

First Instance (Presiding Judge)

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