(영문) 서울행정법원 2017.7.20. 선고 2016구합66339 판결

1. The Defendant’s disposition of imposing disciplinary surcharge imposed on the Plaintiff on August 25, 2014 that exceeds KRW 57,495,00 shall be revoked.

2. All remaining claims of the Plaintiff are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

The Defendant’s disposition of removal from office and disposition of disciplinary surcharge amounting to KRW 287,901,00, which the Plaintiff rendered on August 25, 2014, shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. On March 1, 1995, the Plaintiff acquired an elementary school teacher qualification in Busan and worked as an elementary school teacher in Busan from March 2009, and from March 2009, the Plaintiff was issued as a dispatched research worker by the Ministry of Education, and passed a public announcement of his/her specialty in the Ministry of Education and served as an educational research worker in the Ministry of Education on September 201, and was in charge of B projects (hereinafter referred to as the “instant project”) in the Ministry of Education from March 1, 201 to February 28, 2014.

B. On March 5, 2014, the Defendant was notified by the National Police Agency of the commencement of an investigation into a public official’s crime with the purport that “the Plaintiff participated in the process of draft budget of the instant project team, which was in force in 2012 and 2013, for the Plaintiff, re-entrusted to a specific university or organization, made an unfair instruction to enter into a service contract, or took personnel expenses, etc. by falsely employing a specific research institute as a research institute of the project team.”

C. On March 6, 2014, the Defendant’s notification on the commencement of the investigation of the above public official’s crime need to be resolved.

On the grounds of the Gu, the Special Disciplinary Committee on Public Educational Officials demanded a resolution of heavy disciplinary action against the plaintiff.

D. On May 7, 2014, the Defendant was notified of the status of the investigation of the public official’s criminal case against the Plaintiff notified as above by the National Police Agency (hereinafter “related criminal case”) to the Seoul Central District Public Prosecutor’s Office.

E. On June 30, 2014, the Defendant supplemented the result of self-audit and demanded a resolution of heavy disciplinary action and imposition of surcharges for disciplinary action against the Plaintiff to the Special Disciplinary Committee on Public Educational Officials.

F. On August 21, 2014, the Special Disciplinary Committee on Public Educational Officials decided to impose a surcharge for dismissal and disciplinary action (142,316,72,00 won x 3 times) on the Plaintiff on the following grounds, pursuant to Articles 56, 61, and 63 of the State Public Officials Act, and Article 14 of the former Code of Conduct for Public Officials (amended by Presidential Decree No. 27518, Sep. 28, 2016; hereinafter the same shall apply). Accordingly, the Defendant removed the Plaintiff and imposed a surcharge for disciplinary action on the Plaintiff pursuant to Article 78(1)1 of the State Public Officials Act on the 25th of the same month.

The Plaintiff registered 4 business entities, including C business entities, as a false research institute, and received 66.8 million won for their personnel expenses from each business entity (hereinafter “the first ground for disciplinary action”). The Plaintiff used 54.57 million won for private use using the corporate card of the instant business entity and provided money and valuables to each business entity for the payment of the total amount of KRW 26 million from the business entity for false advisory fees and malicious loan fees (hereinafter “Disciplinary Reason 2”). The Plaintiff provided money and valuables to 40 million won for 50 million won for 40 million won for 10 million won for 200 million won for 20 million won for 40 million won for 20 million won for 30 million won for 40 million won for 30 million won for 40 million won for 30 million won for 40 million won for 30 million won for 13 years for 203 public performance. The Plaintiff provided money and valuables to 40 million won for 40 million won for 20 million won for 4 billion won for 3 years for 20000.

G. On March 8, 2016, the appeals review committee dismissed the Plaintiff’s petition review request. However, upon reflecting the results of the prosecutor’s investigation, the committee changed the contents and amount of disciplinary grounds and disciplinary charges as follows (hereinafter the changed grounds for disciplinary action, removal of the contents of the changed grounds for disciplinary action, and imposition of disciplinary surcharges for the instant case; and hereinafter “each of the instant dispositions”).

○○○ Disciplinary Surcharge amount of KRW 8,51,869, which is recognized as receiving goods equivalent to KRW 8,51,869 from December 2013 to February 26, 2014, in relation to the portion of receiving money and valuables for disciplinary reasons 8,51,000, which is limited to the portion of personal use of the money and valuables for disciplinary reasons 19,165,000 won in total on 32 occasions from May 14, 2013 to January 5, 2014, with the corporate card issued by the Seoul District Project Association for the Second Disciplinary Disciplinary Reason (i.e., 66,80,000 won by acquiring the labor cost + the amount of personal use of the corporate card 19,165,000 + the amount of false consultation fees 10,000,000 won by changing the amount of the money and valuables for disciplinary punishment to 140,772,000 won.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1, 2, 4 and 5 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

For the following reasons, each of the dispositions of this case must be revoked as it is illegal.

1) The removal part of the instant disposition

A) Non-existence of Disciplinary Reason No. 2

The Plaintiff did not request the Seoul Central District Project Association to carry out the instant business activities or request the issuance of the corporate card, and did not use the corporate card for personal purposes. The corporate card received the corporate card from the Seoul District around May 2013 and was used in consultation with G around May 2013. The Seoul District Court collected the corporate card in September 2013, and the subsequent use was used in Seoul District.

B) Partial absence of the Disciplinary Reason No. 3

The Plaintiff recognized the fact that the Plaintiff got false advisory fees by deceiving the project team of the instant project, but the F received KRW 1 million from the F, paid to F as a case of the J of Han-J to receive assistance in the course of its business from F, and thus does not constitute a justifiable ground for disciplinary action.

C) Non-existence of Disciplinary Reason No. 4

The Plaintiff did not accept or deliver as a bribe the goods received or offered as stated in the grounds for disciplinary action No. 4. This part not only was subject to a disposition that was not suspected of having been taken in the relevant criminal case, but also excluded the appeals review committee from the subject of disciplinary action.

D) Non-existence of Disciplinary Reason No. 5

The designation of the project team of this case is subject to the approval of the Ministry of Education, and the plaintiff is merely to recommend a junior college or an expert in the process of concluding a re-entrustment contract or service contract with the Sung Credit Bank and Seoul, and there is no unfair instruction. In regard to the indirect cost of the project of this case, there is no unfair instruction issued by the plaintiff, and considering the fact that the indirect cost of the project of this case is set according to the regulations of the project team of each university, the plaintiff is not at a position to give unfair instructions.

(e)the deviation and abuse of discretionary power;

In light of the fact that there is no part of the grounds for the disciplinary action of this case, the plaintiff made his best effort for the business of this case, and the heavy disciplinary action such as removal shall be limited to the case where there is a serious defect, such as the case where the plaintiff committed an unlawful act or a violation of laws and regulations, etc., the removal disposition of this case shall be limited to the case where there is a serious defect, etc.

2) The disposition of imposing the surcharge of this case

A) Non-existence of grounds for imposing surcharges for disciplinary action

According to the provisions of Article 78-2 of the State Public Officials Act and Article 17-2(1) of the Decree on Disciplinary Punishment of Public Officials, the grounds for the imposition of disciplinary surcharge are limited to the receipt of money, goods, and entertainment, and the embezzlement and misappropriation of public funds. Considering the nature of the benefits accruing from the imposition of disciplinary surcharge, it cannot be interpreted without permission by analogy or expanded interpretation of the relevant underlying provision. The Defendant’s 95,965,00 won, which is deemed to be the base amount of disciplinary surcharge, is not the amount embezzled and misappropriated as the amount acquired by the Defendant for reasons of subparagraphs 1 through 3, and thus, the imposition of disciplinary surcharge

B) A deviation from or abuse of discretionary power

In consideration of the fact that the plaintiff was removed from the Ministry of Education as well as the dismissal in the relevant criminal cases, the plaintiff was sentenced to a punishment of one year imprisonment in the relevant criminal cases, the plaintiff deposited all the amount of damage against the industrial group of each relevant university while proceeding the relevant criminal case, the fact that the amount obtained by defraudation of the corporate card out of the amount subject to disciplinary surcharge in the relevant criminal cases is not revealed to have been obtained by deception, and that a large portion of the amount acquired by the plaintiff was used as the project cost of the project of this case, the imposition of the disciplinary surcharge of this case shall be excessively harsh and excessively exempted or reduced.

B. Relevant statutes

It is as shown in the attached Form.

1) The background and contents of the instant project

A) From 2010, the Ministry of Education promoted the instant project in which K, L, M, N, andO are operated at elementary, middle, and high schools nationwide in order to establish a cooperation system with the local community and provide opportunities for artistic education to the non-party in culture and arts, vulnerable areas, school violence serious areas, etc., and to achieve the effects of students’ personality cultivation, artistic knowledge development, private education reduction, etc.

B) The instant project was carried out by the method of transferring specialized education by field to the selected school teachers and students subject to the promotion of the foregoing arts education project, providing opportunities for participation through the events, etc., while operating the project in parallel with the entire literature of each university and each sector with a department of arts specialized.

C) In 2011, K had been selected as an exclusive institution and started K projects. K,O, M, and P projects had been established in 2012, and in 2013, K projects had been expanded in budget and projects, and M projects had been selected in Seoul central project team (the head of the project group, S, T professors), Seongdong-si project team (the head of the project group, the N project group) and the Busan central project team (the head of the project group, U professor), and the Busan central project team (the head of the project group V).

D) The instant project is a national policy project implemented with the special grant budget, and is required to implement the project and execute the budget in accordance with the standards for granting and operating the special grant established by the Ministry of Education local education finance division. Pursuant to the above provisions, the department in charge of the Ministry of Education is responsible for formulating basic plans, securing and allocating budgets, selecting operating schools and institutions in charge (entrusted business operators) on the recommendation of the City/Do Office of Education,

On the other hand, each City/Do Office of Education shall establish a detailed implementation plan, enter into an agreement on entrusted projects, and manage and supervise the implementation of projects, and the agency entrusted with the projects shall manage and supervise the budget execution in accordance with the relevant regulations while keeping the project funds after obtaining them from the City/Do Office of Education, and shall execute the budget according to the allocated items, but if it is necessary to revise the budget,

(ii) the result of the relevant criminal case;

A) The Plaintiff was indicted for committing a crime of fraud under the grounds for disciplinary action Nos. 1 through 3 (However, with respect to the grounds for disciplinary action No. 2, only KRW 19,165,00 among the details of the use of the Seoul Corporate Card, was prosecuted, and only KRW 1,00,000 related to F among the grounds for disciplinary action No. 3 was excluded from prosecution), and the Seoul Central District Court sentenced the Plaintiff on February 9, 2017, sentenced the Plaintiff to two years of imprisonment, and sentenced the Defendant not guilty for the following reasons (Seoul Central District Court 2015Da7890).

(1) The summary of the facts charged is as follows: (a) The plaintiff, on May 1, 2013, intended personal intent to use the corporate card even after receiving the corporate card from the Seoul Enterprise Group in relation to K in 2013, with respect to the business of the early May 2013, he/she obtained the corporate card from the head of the said business group in one false manner; (b) he/she obtained the corporate card from R through G, and used the said corporate card in 19,165,000 personally over 32 times from May 14, 2013 to January 5, 2014.However, in the police examination, the plaintiff stated that the corporate card was provided without being required to cover the expenses for the business of this case; and (c) the portion of the facts charged by the prosecutor concerning the business of the Seoul Enterprise Group is not limited to 9,000 won, but to be limited to 19,000 won, which is part of the total amount of the charges charged by the prosecutor.

B) On May 19, 2017, the Plaintiff and the Prosecutor appealed against the above judgment of the first instance, and the Seoul Central District Court dismissed the prosecutor’s appeal on the acquittal portion of the above judgment, and sentenced the Plaintiff to one year by imprisonment with prison labor for the Plaintiff, taking into account that the Plaintiff deposited the total amount of KRW 17 million damages (hereinafter “relevant criminal judgment”). The above judgment became final and conclusive around that time.

3) Evidence pertaining to the grounds for disciplinary action No. 2

A) At the time of the police investigation as to the disciplinary reasons for the second disciplinary reasons, the Plaintiff, as a public official of the Ministry of Education, cannot use the corporate card of the Ministry of Education for business activities by obtaining the corporate card of the Ministry of Education as a public official of the Ministry of Education. R was provided with the corporation card of the Seoul metropolitan project team through G around May, 2013, and F was used in the custody of the Ministry of Education. The Plaintiff stated to the effect that, although it was true that the Plaintiff purchased the hotel accommodation right and the Nompt, the entire other usage was not used for himself, but that W hotel accommodation right was received by G rather than for his request.

B) As to the Disciplinary Reason 2, G, from the police to the court in May 2013, 2013, provided the Plaintiff with one corporate card of the Seoul War Project Group for the first time. According to the use of the corporate card that the Plaintiff prepared and submitted to the police, the Plaintiff used KRW 70,01,203 as purchase expenses and personnel expenses, etc. However, among them, only the amount of KRW 70,01,203 was provided to the Seoul project team. The right to accommodation of the W hotel was purchased at the Plaintiff’s request. The right to accommodation of the W hotel was previously purchased at the Plaintiff’s request, and the F was treated in the same manner as it was given to the Plaintiff to exercise the event. Since September 2013, the Plaintiff recovered the corporate card from the Plaintiff and kept it physically. However, the Plaintiff was consistently stated to the effect that the Plaintiff would make payment with the corporation card.

C) Around May 2013, 2013, G brought the corporate card from the police to the court, and delivered it to the Plaintiff. He kept the card on his book according to the Plaintiff’s custody order and settled the account upon the Plaintiff’s order. Of the details of the use of the corporate card, he did not have any record of his personal use, and always used it according to the Plaintiff’s instructions.

A consistent statement was made to the effect that the Plaintiff purchased a X hotel hotel accommodation ticket and delivered it to the Plaintiff, and that at the time, there was an event plan to be sent to G and processed by exercising it.

D) On May 2013, R consistently stated to the effect that “The grounds for disciplinary action No. 2 were stated to the Ministry of Education through G around May 2013 in order to support the business activity expenses of the instant case at the request of the police from the police to the court.” The Plaintiff’s corporate card organized by G is suitable for the details of the use of the Plaintiff’s corporate card, and that the project expenses are calculated and processed falsely.”

E) Prosecutions instituted prosecutions only for KRW 19,165,000, out of the details of the use of the corporate card by the Seoul project team, which was organized and submitted by G in relevant criminal cases, from July 17, 2013 to February 3, 2014.

4) Evidence related to KRW 1 million among the grounds for disciplinary action No. 3

A) The Plaintiff stated to the effect that “at the time of the police investigation as to the portion of KRW 1 million received by F among the disciplinary grounds for disciplinary action No. 3, the Plaintiff was able to send F away from the capacity of two researchers of the arts species who had been employed by F at the time of the police investigation, and paid F allowances upon request by the J in return for the birth.”

B) Of the grounds for disciplinary action No. 3, F was an excessive worker for the part that he received KRW 1 million from J at the time of the police investigation, but it was not possible to receive overtime allowances since it was dispatched. However, the Plaintiff’s contact with J professors of Korea and attempted to grow as an excessive job and attempted to assist 2 researchers on the part that he/she received KRW 1 million from J. The Plaintiff was asked to pay allowances under the pretext of advisory fees. The Plaintiff refused to pay allowances because he/she had been forced to do so at the time.

5) Evidence pertaining to the grounds for disciplinary action No. 4

A) As to the grounds for disciplinary action No. 4, the Plaintiff stated to the following purport at the time of police investigation.

around December 25, 2013, 000 G 1 20 G 20 G 20 G 20 G 10 G 20 G 20 G 10 G 20 G 10 G 20 G 10 G 20 G 10 G 20 G 20 G 10 G 20 G 200 G 10 G 200 G 10 G 200 G 200 G 10 G 200 G 200 G 200 G 10 G 200 G 10 G 100 G 200 G 10 G 200 G 200 G 100 G 100 G 100 G 100 G 100 G 200 G 3 of the remaining project cost of 26 February 2014

B) G stated the following purport at the time of police investigation and legal testimony regarding the grounds for disciplinary action No. 4.

around December 2, 2013, at the request of the Plaintiff, purchased and delivered to the Plaintiff 4 copies of VIP (1040,000) and two copies of VIP tickets (168,000) of the musical conference in Seoul.The Plaintiff demanded that the Plaintiff be engaged in personnel management for the upper part of the Ministry of Education, and purchased W hotel accommodation tickets. Likewise, around January 13, 2014 through January 19, 2014, three (1,167,873 won) and 1,3 (1,326,996 won) and 1,3 (1,326,99,96 won) and 2,00 won of the Ministry of Education (1,326,99,00 won) and 2,00 won, which were 0,000 won or more after the above international training table, the Plaintiff provided 1,200,000 won or more to the Plaintiff.

C) The R made a statement to the following purport at the time of the police and prosecutor’s investigation with respect to the grounds for disciplinary action No. 4.

○ Money and valuables - Purchasing 4 Kamenmen’s musical pockets and 2 Kamen’s music books of Seoul Metropolitan Government as the project cost of the project team

The Plaintiff provided the Plaintiff. Furthermore, at the request of the Plaintiff as necessary for the Plaintiff’s business report, the Plaintiff and the Plaintiff were issued one package of the ASEAN purchased from G with the project cost of the project team on January 2014. However, even though G was aware of the purchase of souvenirs at the event of international exchange from G to the project cost of the project team, detailed details were not known. While the remainder of the facts were known, the Plaintiff became aware of the last day.- On February 26, 2013, the Plaintiff paid KRW 4 million from the project cost of the project team to the Plaintiff as an amount of encouragement, and the Plaintiff was refused to receive it, and the Plaintiff was returned to G.

D) On August 26, 2014, the Defendant: (a) received money and valuables equivalent to KRW 4.1 million from the Plaintiff; and (b) imposed a disposition of suspension from office for three months and additional charges for a violation of Articles 56 (Duty of Fidelity) and 61 (Duty of Integrity) of the State Public Officials Act; and (c) filed a petition review with the appeals review committee; (d) on March 18, 2016, H filed a petition for review with the appeals review committee; and (c) was dismissed on March 18, 2016.

E) On December 22, 2015, Seoul Central District Prosecutor’s Office rendered a disposition of incompetence (Evidence of Evidence) against the suspicion of acceptance of bribe regarding the relevant facts in the grounds for disciplinary action No. 4, 2015.

6) Evidence pertaining to the grounds for disciplinary action No. 5

A) As to the grounds for disciplinary action No. 5, the Plaintiff stated to the following purport at the time of police investigation.

The contents of the business of the plaintiff and the method of using the budget of the project team were prepared for the entire project plan, allocated special subsidies budget, and allocated the detailed budget for each project to the City/Do Office of Education. When the project of this case is completed, the project of this case was submitted to review the results of the project.

The budget allocated to the project team shall be prepared and implemented in accordance with the plan, and if a separate service contract, etc. is necessary, it shall be conducted with the approval of the Office of Education of the City/Do. However, it shall not be allowed to take part in the relevant part of the project, but it shall be deemed difficult for the head of the project team to proceed with the M business with the capacity of the professor, who is the head of the project group, and shall be re-entrusted to the Red Interest Association with regard to some projects, and shall be involved in the conclusion of the service contract with the Korea Red Investment Association with regard to KRW 100 million out of the budget allocated to him. The Red Interest Association was aimed at by bypassing the Cheong River Cultural Industry University AA professor, and was recommended by the AB researcher who supported him. In the event of the Korea Red Interest Association, it was decided that it was only 2 months after the implementation of the partial service related to the Seoul ○ Project. It was proposed by the Director of the Agency to provide the entrusted service to the professors in the specialized field through his/her request.

B) At the time of the police investigation with respect to the portion of the Seoul District District Project Group among the Disciplinary Reason 5, G: (a) at the time of the police investigation, the Plaintiff was urged to pay all the service costs according to the budget bill initially scheduled on May 2013; (b) deducted 5% of the indirect cost from the project team’s budget; and (c) deducted 63 million won from the project team’s budget; and (d) even around October 2013, G directed the KC Research Institute and themselves of the Seongdong District Project Association and the first budget bill to bring them into the project team’s budget. After preparing the modified project proposal and reporting it to the Director, the Plaintiff did not consult with the Daegu District Office of Education or obtained prior approval from the Daegu District Office of Education, such as the terms of the consignment contract, and the Plaintiff did not directly intervene in the scholarship of the Daegu District Office of Education.

C) At the time of the police investigation with respect to the disciplinary cause No. 5, F, at the time of the police investigation, the Plaintiff was the person related to the instant project team, and there is an absolute position of Party A. The overall project plan is conducted in the Ministry of Education and implemented with the approval of the City/Do Office of Education. However, upon the direction of the Plaintiff, F drafted a draft plan for operating expenses allocated to the Seoul District Office of Education. According to the direction of the Plaintiff, in the case of the Seongdong District Association, the Korea Barit Association, M projects, the Korea animation Association, the Korea M Projects, and the Korea Eimation Association, in the case of Seoul District, in the case of the Seoul District Association, re-consigning the original unit with the services or concluding a service contract.

The plaintiff stated to the effect that the budget was included in the project team budget in all related budgets, and that the budget was modified several times.

D) At the time of the investigation by the police and the prosecution into the Seoul District District in relation to the portion of the Disciplinary Reason No. 5, R stated that, with respect to the part of the Seoul District District District District in the Disciplinary Reason No. 5, the Plaintiff had increased the budget, and then, the NAE project was conducted in the Dong District, the honorary professor Professor Professor Professor Professor, the development project for the student Ma-name management model, the student Ma-name model development project was instructed to be re-entrusted to the Korea Creative Association, and the budget revision was also made by the direction of the Plaintiff from G. The Seoul District Business Association stated to the effect that the Plaintiff had no authority to select a university to re-commission or to allocate the budget, and that all re-commissions or budget changes were changed to G. At the time, the NA professor stated that re-entrusted KRW 500 million out of the K project cost of the Seoul District Business Association through telephone communications by the Plaintiff.

E) At the time of the police investigation and legal testimony related to the portion of the 5th Disciplinary Reason, S: (a) during March, 200, 200 million won of the Plaintiff’s KRW 200 million in the budget for the entrusted project of the School M Support Center; and (b) the KRW 100 million in the budget for the services to the Korean Bar Association in relation to cartoons (motions) educational donation programs; (c) was finally organized in the project team’s budget; and (d) the Plaintiff unilaterally decided and directed the project team. Since she was the head of the project team, she could have requested the recommendation if good persons were the head of the project team, but did not request the Plaintiff to recommend the project team; and (d) the Plaintiff first made a statement to the effect that the Plaintiff “S sent Red stories.”

7) Details of the Plaintiff’s deposit and commendation

A) On February 2017, the Plaintiff deposited or repaid all the remainder of the damage amount, excluding the part related to F, out of the grounds for disciplinary action No. 1 and No. 3 as of the end of February 2017.

B) The Plaintiff, while holding office as a public educational official, received twice the official commendation from the Minister, once the official commendation from the Minister, etc. before the removal of the instant case, and received ten prizes or prizes.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5 through 9, Eul evidence Nos. 3 through 8, 10, 12 through 14, 16, 20 through 25, and the purport of the whole pleadings

D. Determination

1) The removal of the instant case

A) Whether a ground for disciplinary action 2 exists

In full view of the following circumstances revealed by the aforementioned facts and the purport of the entire pleadings, it is reasonable to deem that the grounds for the second disciplinary action is sufficiently recognized, which constitutes grounds for disciplinary action under Article 56, Article 61, and Article 63 of the State Public Officials Act and Article 14 of the former Code of Conduct for Public Officials, as acts violating Article 78 of the State Public Officials Act.

Therefore, this part of the plaintiff's assertion is without merit.

(1) Notwithstanding the fact that the Plaintiff could not use the corporate card with the business team’s corporate card, the Plaintiff only contests the amount of use. However, all G, F, and R consistently stated that the Plaintiff, upon the Plaintiff’s request, delivered one corporate card of the Seoul project team to the Plaintiff, and used it in accordance with the Plaintiff’s instructions even after September 2013. However, the Plaintiff’s statements do not seem to be particularly low in credibility.

(2) In light of the fact that the Plaintiff’s use of the corporate card was at issue, it is deemed that only the part for which the personal use has been confirmed is the only part of the amount of KRW 19,165,00,000, which was part of the amount of KRW 54,570,000, which was first at the prosecution.

(3) The Plaintiff was acquitted of this part in the relevant criminal judgment, and the reason is not because the Plaintiff was not able to use the Seoul Corporation Card or was not able to use it individually. Thus, the relevant criminal judgment does not interfere with the recognition of the grounds for disciplinary action No. 2.

B) Whether the third ground for disciplinary action exists

According to the above facts and the purport of the whole oral argument, the plaintiff himself requested the J to pay KRW 1 million to F, and since F also recognized that the plaintiff had been given an allowance of KRW 1 million as advisory fees, the plaintiff can be recognized that the plaintiff assisted F to acquire money by fraud, which is in violation of Articles 56, 61, and 63 of the State Public Officials Act and constitutes grounds for disciplinary action under Article 78 of the same Act.

Therefore, this part of the plaintiff's assertion is without merit.

C) Whether the ground for disciplinary action No. 4 exists

In full view of the following circumstances revealed through the aforementioned facts and the purport of the entire oral argument, it is reasonable to view that the money and valuables received or provided by the Plaintiff despite the fact that the relevant criminal case was not subject to disposition of non-prosecution and the disciplinary surcharge imposed by the appeals review committee is related to his/her duties, and the grounds for disciplinary action No. 4 are acts violating Articles 56, 61, and 63 of the State Public Officials Act and Article 14 of the former Code of Conduct for Public Officials

Therefore, this part of the plaintiff's assertion is without merit.

(1) The Plaintiff is aware of the fact that it received or provided the pertinent goods under the Disciplinary Reason No. 4. However, it is argued that the Plaintiff is not a bribe. However, in light of the fact that the Plaintiff was in a position to establish the entire business plan and assign detailed budgets for the instant project, and that the Plaintiff was actually in charge of giving and receiving orders from the Seoul District Project Agency, G is required to provide personnel service to the upper parts of the Ministry of Education, or there is no circumstance to suspect its credibility, and there is no reason to suspect its credibility. In fact, some of the pertinent goods were delivered to the Plaintiff’s superior; the pertinent goods were purchased from the project cost of the Seoul District Project Agency; H was subject to the disposition of imposing disciplinary surcharge for suspension in office for the reason that it received money and valuables equivalent to KRW 4.1 million from the Plaintiff in relation to his duties. In light of the fact that the pertinent goods were directly and indirectly related to the Plaintiff’s duties.

(2) Although the Plaintiff returned KRW 4 million received from R around February 26, 2014, the police was already investigating the instant case from January 2014 (see, e.g., evidence Nos. 14 and 15). In light of the fact that the Plaintiff returned the said KRW 4 million to another department or immediately before the issuance to another department, it is difficult to deem that the Plaintiff returned it by his/her own. It is difficult to deny the receipt of the said KRW 4 million per se as grounds for disciplinary action.

(3) The Seoul Central District Prosecutor’s Office imposed a disposition of suspicion of bribery against the facts in question in the grounds for disciplinary action No. 4. However, given that the degree of proof required in the criminal case is more strict than the degree of proof required in the administrative case, and that the degree of business relationship required in relation to the receipt of money and valuables does not coincide with that required in the administrative case, the disposition of suspicion of the above suspicion does not obstruct the 4 grounds for disciplinary action.

(4) The appeals review committee did not take into account the grounds for disciplinary action No. 4 at the time of calculating the surcharge in the sense that it respected the above suspected (defluence of evidence) disposition.

D) Whether the grounds for disciplinary action No. 5 exist

In full view of the following circumstances revealed by the aforementioned facts and the purport of the entire oral argument, it is reasonable to deem that the Plaintiff violated Articles 56 and 63 of the State Public Officials Act and constitutes grounds for disciplinary action under Article 78 of the same Act, as it constitutes a violation of the grounds for disciplinary action under Article 78 of the same Act, inasmuch as the Plaintiff is in a position to formulate the entire project plan and allocate detailed budget for the instant project without consultation or approval by the Office of Education of City/Do.

Therefore, this part of the plaintiff's assertion is without merit.

(1) The Plaintiff recognized that it was unfairly involved in concluding a sub-entrustment contract and service contract with the Sung F&S business entity. G, F, R, and S consistently stated that the Plaintiff first instructed the Plaintiff to enter into a sub-entrustment contract and service contract and instructed the Plaintiff to allocate the budget, including indirect expenses, in accordance with the direction. There is no circumstance to doubt the credibility of the statements made by G, F, R, and S.

(2) Although each agency has internally decided on the conclusion of the re-contract and service contract and the allocation of budget, in light of the fact that the Plaintiff was in charge of the business plan to the City/Do Office of Education by formulating the entire project plan of the instant project and allocating detailed budget, and that the City/Do Office of Education did not play any role in the project of the instant case due to the failure of the project of the City/Do Office of Education, it seems that each agency has no choice but to follow the direction of the Plaintiff, who

E) Whether the discretion is deviates or abused

(1) Relevant legal principles

In the case of disciplinary action against a person subject to disciplinary action who is a public official, the disciplinary action is placed at the discretion of the person having authority to take the disciplinary action, so that the disciplinary action is illegal, it shall be limited to the case where the person having authority to take the disciplinary action is deemed to abuse the discretion that the person having authority to take the disciplinary action has considerably lost validity under the social norms.

In addition, the determination of whether a disciplinary action against a public official has considerably lost validity under the social norms ought to be based on a comprehensive consideration of various factors, such as characteristics of duties, the content and nature of the misconduct causing disciplinary action, the administrative purpose to be achieved by disciplinary action, and the criteria for the determination of disciplinary action. In particular, in the case of receiving money and valuables, the amount of money and valuables received, details of receipt, timing of receipt, time of receipt, and whether the disciplinary action had an impact on his/her duties after receiving money and valuables should be taken into account (see, e.g., Supreme Court Decision 2006Du

(2) Specific determination

In full view of the following circumstances revealed by the aforementioned facts and the purport of the entire pleadings, it is difficult to view the instant removal disposition as a disciplinary action against the Plaintiff, which considerably lacks validity and thus deviates from the scope of the disciplinary right or abused the disciplinary right.

Therefore, the plaintiff's assertion on this part is without merit.

(A) Although the Plaintiff committed an act falling under the grounds for disciplinary action against a public official of the Ministry of Education, while complying with the relevant regulations and authority of the Ministry of Education, with good faith and integrity, the Plaintiff committed an act falling under the grounds for disciplinary action against the Plaintiff. In light of the fact that the amount of damage ( approximately KRW 125 million from June 2012 to February 2014) is large, and the period of the act (including approximately KRW 125 million) is going to be the period of the act (from June 2012 to February 2014). In addition, it is recognized that the Plaintiff’s intentional misconduct is serious in terms of the form of the act, such as taking over or giving money and valuables related to his/her duties, and giving and taking unfair instructions

(B) Attached Table 1 of the former Enforcement Rule of the Decree on Disciplinary Action against Public Officials (amended by Ordinance of the Prime Minister No. 91, Sept. 2, 2014; hereinafter referred to as the "Enforcement Rule of this case") provides that in the case of violations of Articles 56, 61, and 63 of the State Public Officials Act, where the intention and seriousity of the misconduct are recognized, a heavy disciplinary measure shall be taken against the dismissal (or removal). Article 5(1) of the above Enforcement Rule provides that in the event two or more misconducts unrelated to each other are concurrent, a disciplinary measure against the person who is not related to each other may be taken one step more than the disciplinary measure against which the responsibility is grave. The removal of this case is in conformity with the disciplinary criteria set forth in the above Enforcement Rule, and it does not seem that the above disciplinary measure does not conform with the Constitution

(C) The appellate court rendered a sentence of imprisonment with prison labor for one year to the Plaintiff taking into account the following: (a) the Plaintiff is against the Plaintiff; (b) the Plaintiff was the first offender; and (c) the Plaintiff deposited the amount equivalent to KRW 17 million in the relevant criminal case; and (c) this was finalized around that time.

(D) The Plaintiff made efforts for the instant project, and served in good faith for about twenty (20) years as public educational officials, and has ten (10) commendation and prize experience, including Minister commendation. However, considering the content of each disciplinary cause, the gravity of misconduct, intent, and aggravated factors of disciplinary action, it is difficult to deem that the instant removal disposition has considerably lost social validity.

2) Disposition of imposing the instant disciplinary surcharge

(A) the existence of grounds for imposition

(1) Relevant legal principles

Since an indivative administrative disposition is a concept corresponding to a beneficial administrative disposition that restricts the rights and interests of the other party or imposes obligations on the other party, more strict interpretation and application of administrative laws and regulations that serve as the basis for such administrative disposition in accordance with the principle of clarity required under the Constitution should not be made in a way that excessively unfavorable to the other party to the administrative disposition (see, e.g., Supreme Court Decisions 2015Du37815, Nov. 25, 2016; 2003Du9145, Apr. 27, 2004).

(2) Specific determination

(A) The imposition of surcharges for disciplinary action needs to be strictly interpreted as an indivating administrative disposition. However, Article 78-2 of the former State Public Officials Act (amended by Act No. 13288, May 18, 2015; hereinafter referred to as the "former State Public Officials Act"), which is the basis for the imposition of surcharges for disciplinary action of this case, is limited to "the grounds for the imposition of surcharges for disciplinary action" to "the cases where the grounds for the imposition are "the cases where money, valuables, or entertainment is received" and "the embezzlement and misappropriation of surcharges".

From the "Embezzlement and misappropriation of public money" as referred to in the above provision, the term "Embezzlement" means any act that realizes the intent of unlawful acquisition. It means an objective act that a person who possesses another's property has the intention to change such possession into his possession, and such intent is recognizable to the outside, and the prior meaning of "use" is "recognition" or "an act that is used in another place" or "an act that is different from the division, section, section, section, section, item, section, and section from the expenditure budget, return the expenses of each item and Section to different ways respectively, and it is reasonable to interpret the meaning of "an act of embezzlement" and "an act of embezzlement and misappropriation from among crimes on the grounds for imposition of disciplinary benefits of the plaintiff as provided in the above provision, regardless of the purpose and purpose of the above provision, it is reasonable to interpret the meaning of "an act of embezzlement and misappropriation" as being strictly used in the form of "an act of embezzlement and misappropriation," regardless of the purpose of embezzlement and misappropriation."

Meanwhile, Article 78-2 (1) of the State Public Officials Act (amended by Act No. 13288, May 18, 2015) expanded the scope of "where a person acquires or provides money, goods, real estate, entertainment, or other property benefits prescribed by Presidential Decree" (Article 78-2 (1) of the State Public Officials Act) or "where a budget or a fund under the National Finance Act is embezzled, stolen, stolen, stolen, or useful (Article 6 (Application of Application to Extension of Persons subject to Disciplinary Charges)" pursuant to Article 6 (Application to Extension of Persons subject to Disciplinary Charges) of the Addenda to the above Amendment, and thus, it cannot be applied to each of the disciplinary reasons of this case that occurred prior to the enforcement of the Act.

(B) The grounds for the instant disposition of imposing the surcharge for disciplinary action are the grounds for disciplinary action from Nos. 1 to 3 (Provided, That in the case of the grounds for disciplinary action No. 3, the part concerning the grounds for disciplinary action Nos. 1 and 3 are embezzled or misappropriated by the Plaintiff, and the relevant amount was embezzled or misappropriated. Therefore, each of the grounds for disciplinary action does not constitute the grounds for imposing the surcharge for disciplinary action.

On the other hand, the facts constituting the grounds for the second disciplinary action are that the Plaintiff used 19,165,000 won for private use even though it was impossible for the Plaintiff to use the corporate card of the Seoul District Project Association. Although the Plaintiff was found not guilty on the grounds that the Plaintiff could not be deemed as deceiving the use of the card at the time when the said corporate card was issued in the criminal judgment, it should be deemed that the Plaintiff’s private use of the card received without using it for its original purpose constitutes the use of public funds and thus constitutes the subject of the surcharge for disciplinary action.

(C) Therefore, the part related to the grounds for disciplinary action No. 2 in the instant disposition of disciplinary surcharge exists, but the part related to the grounds for disciplinary action No. 1 and 3 is unlawful due to the lack of grounds for such disposition.

B) Whether the discretion is deviates or abused

We examine whether or not the part related to the grounds for the second disciplinary action, which is recognized as the grounds for the disposition of the disciplinary surcharge in this case, is deviation or abuse

According to the above facts and the purport of the whole oral argument, it is recognized that the severity and significance of the misconduct committed by the plaintiff is recognized, and the Enforcement Rule of this case provides that the degree of the misconduct shall be imposed three to five times the amount of the embezzlement and misappropriation of public funds in the case of embezzlement and misappropriation of public funds, and the disciplinary surcharge imposed in relation to the grounds for disciplinary action 2 is not only the minimum amount of the disciplinary standard prescribed in the Enforcement Rule of this case, but also the above disciplinary standard is not consistent with the Constitution or laws.

Therefore, it is difficult to view that the part falling under the grounds for disciplinary action of this case among the grounds for disciplinary action of this case has considerably lost validity by social norms.

C) Sub-decision

Therefore, the part of imposing KRW 57,495,00 (=3 times the base amount 19,165,000) related to the disciplinary cause of the instant disciplinary measure is lawful, but the remainder of the grounds for the disciplinary measure is unlawful.

3. Conclusion

If so, the plaintiff's claim is reasonable within the above scope of recognition, and the remaining claims are without merit, and it is dismissed. It is so decided as per Disposition.