Plaintiff (Law Firm Mac, Attorneys Shin Jin-jin, Counsel for plaintiff-appellant)

Gwangju Metropolitan City superintendent of education (Attorney Seo-won, Counsel for defendant-appellant)

November 8, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's dismissal disposition against the plaintiff on December 11, 2017 shall be revoked.

1. Details of the disposition;

A. On March 1, 1992, the Plaintiff was appointed as an elementary school teacher, and on September 1, 2016, the Plaintiff promoted to an assistant principal and served at the Gwangju ○ Elementary School.

B. On October 31, 2017, the Plaintiff was subject to a disposition of suspending indictment on the condition that probation was entrusted to guide the public prosecutor’s office in Gwangju in 2017 due to criminal facts (hereinafter “instant misconduct”) as stated below.

On September 9, 2017, at around 00:15, the Plaintiff committed an indecent act by making the chest part of the victim who sited in the driver’s seat only from the back seat of the △△△ (vehicle number omitted) taxi operated by the Nonparty Nonparty (the Nonparty 67 years old and female) who was driving the △△△△△△△ Party (hereinafter “Plaintiff”).

C. On November 27, 2017, the General Disciplinary Committee on Public Educational Officials in Gwangju Metropolitan City decided to dismiss the Plaintiff pursuant to Articles 63 and 78 of the State Public Officials Act, Article 10 of the Decree on the Punishment of Public Educational Officials, Article 2 of the Rules on Disciplinary Action on Public Educational Officials, etc. on the ground of the instant misconduct committed against the Plaintiff.

D. On December 11, 2017, the Defendant took disciplinary action against the Plaintiff according to the above resolution by the Busan Metropolitan City General Disciplinary Committee on Public Educational Officials (hereinafter “instant disposition”).

E. On January 4, 2018, the Plaintiff filed a petition review with the Appeal Commission for Teachers, but was dismissed on February 28, 2018.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1 to 3, 7, 19 through 21 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the fact that the Plaintiff committed the instant misconduct in a state of lacking the ability to discern things or make decisions by drinking, and that the Plaintiff did not exercise force in the course of committing an indecent act against the victim, and that the degree of indecent act is very minor that the Plaintiff sent the chest to the victim’s clothes from the rear seat, not against the student by taking advantage of his superior position, the instant misconduct is not limited to the Plaintiff, the Plaintiff was subject to criminal punishment or disciplinary disposition, the suspension of indictment, the Plaintiff served as the teacher for 25 years or longer, the Plaintiff faithfully as a teacher, and the Plaintiff supported his family, and thus, the instant disposition of dismissal was excessively harsh and constitutes deviation from and abuse of discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether a disciplinary measure should be taken against a person subject to disciplinary action, who is a public official, is at the discretion of the person having authority to take the disciplinary action. Therefore, the disciplinary measure taken by the person having authority to take the disciplinary action as a result of the exercise of discretionary authority significantly lacks validity under social norms, and thus, is unlawful.

In light of the specific cases as to whether a disciplinary action against a public official has manifestly lost validity under social norms, the details and nature of the disciplinary action should be determined by comprehensively taking into account various factors, such as characteristics of duties, the contents and nature of the facts of misconduct causing the disciplinary action, the administrative purpose intending to achieve a disciplinary action, and the criteria for a disciplinary action. In a case where the person having an authority to take an action determines the internal criteria for a disciplinary action and takes a disciplinary action accordingly, the relevant disciplinary action cannot be deemed considerably unreasonable under social norms unless there are special circumstances, such as that the prescribed criteria for a disciplinary action are unreasonable (see Supreme Court Decision 2017Du472, Nov. 9, 2017, etc.).

2) In full view of the following circumstances, the evidence mentioned above and the statements mentioned in Gap evidence Nos. 4 through 6, 8 through 16, and 24 through 37 comprehensively considered the purport of the entire pleadings, the disposition of this case cannot be deemed to have been invalidated and abused discretion. Accordingly, the plaintiff's assertion is without merit.

A) It is necessary to maintain more strict standards in that teachers require more morality than ordinary workers, and teachers’ misconducts are likely to undermine the trust of the entire society of teachers as well as teachers. Furthermore, considering the fact that negative impacts or rippleity that the misconducts of teachers are likely to occur to students, it is necessary to set strict standards in the determination of disciplinary measures in order to prevent recurrence.

B) The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of assault or intimidation, but also the case where the act of assault itself is recognized as an indecent act. In this case, inasmuch as the assault does not necessarily require the degree of suppressing the other party’s intent and the exercise of force against the other party’s will is against the other party’s will, the crime of indecent act by compulsion does not necessarily require that the assault is against the other party’s will (see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002). The Plaintiff’s chest was taken by hand on the part of the victim who driven a taxi, which constitutes an indecent act by itself, and the exercise of force against the victim’s will is recognized.

C) According to the disciplinary criteria under Article 2(1) [Attachment Table] of the Rules on Disciplinary Measures against Public Educational Officials, etc., the grounds for the instant disciplinary measure constitute “sexual assault.” The disciplinary measure criteria include “a serious and intentional act,” and “a case where the degree of non-defence is severe, gross negligence, or a case where the degree of misconduct is weak, or where the degree of misconduct is weak,” and “a case where the degree of non-defence is weak, and the degree of misconduct is weak,” and “a case where the degree of non-defence is weak, and is gross negligence,” respectively. In light of the duty of a public educational official to faithfully guide students so that students can grow up as a human being and lead students to establish a proper sexual ethics and values, the disciplinary measure criteria in itself do not seem to be arbitrary or unreasonable.

D) The instant misconduct committed an indecent act on the part of the victim who was a taxi driver. The instant misconduct constitutes an intentional act even though it is difficult to readily conclude that the degree of misconduct among sexual assault is serious. The instant disciplinary standard provides that where the degree of misconduct is weak and there is an intentional act, the instant disciplinary measure shall be imposed on the “defluence” and thus, the instant disposition of dismissal is shorter than the foregoing disciplinary measure standard.

E) In the process of the instant disposition, the Defendant appears to have reached the instant disposition by fully taking account of the various grounds for determination alleged by the Plaintiff, and it cannot be said that the instant disposition has considerably lost its validity by social norms.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Han Freeboard State (Presiding Judge) Kim Yong-patho