2010Nu6724 Revocation of disposition of revocation of dismissal

this Act (000000-00000)

Apartment-Dong Heading

Law firm Corporation

Attorney Lee In-bok

The superintendent of the Office of Education

Attorney Lee Do-young

Busan District Court Decision 2010Guhap3146 Decided November 26, 2010

June 8, 2011

July 6, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's dismissal on February 26, 2010 against the plaintiff shall be revoked.

1. Details of the disposition;

A. After being appointed as a teacher on October 19, 1987, the Plaintiff was transferred to △△ High School (public) on March 1, 2008, and served as the principal teacher in the second year from March 1, 2009.

B. On February 26, 2010, the Defendant dismissed the Plaintiff pursuant to Article 78(1)1 of the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter “Act”) due to the following disciplinary reasons (hereinafter “instant disposition”).

【Disciplinary Reason】

○○○ High School 2: (a) The Plaintiff provided KRW 26, 180, and 00 to the executives of his parents for 35 years in March 209; (b) KRW 10,00 for entrance and exit guidance fees; (c) KRW 2,00,00 for early May 209; (d) KRW 12,00 for his own gift rights; 60,000 for his own 0-6-6-6-6-6-6-6-6-6-6-6-6-6-6--1-6-7-7-1-6-7-1-6-7-7-7-1-6-7-1-6-7-1-6-7-1-6-7-1-6-7-1-7-1-7-1-7-7-1-7-7-1-7-1-7-1-7-1-7-1-7-2009; and (c) the Plaintiff provided money and valuables.

C. The Plaintiff’s request for review of an appeal against the instant disposition was dismissed on June 7, 2010. [Grounds for recognition] The Plaintiff’s request for review of an appeal was dismissed (including branch numbers) with no dispute, Gap’s evidence 1 through 4, and Eul’s evidence (including branch numbers).

Re-, the purpose of each of the testimony and arguments of the witness of the first instance court, OO, OOOOO

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition constitutes a deviation or abuse of discretion, as it is unreasonable to take disciplinary action on the following grounds.

(1) The money that the Plaintiff received is a pure support that was voluntarily created by parents. The Plaintiff sought and attempted to return the support money several times, but the parents refused to return the money in full and delayed, and returned the full amount before the civil petition for the support money was filed.

(2) The Plaintiff received support money on behalf of six teachers in the second grade as a teacher in the second grade, and the amount received by the Plaintiff shall be 12,600,000 won per 1/6,000 won per 12,60,000 won. Since the Plaintiff did not first demand support money, it constitutes a ground for reduction of salary or reprimand, which is minor disciplinary action, in cases where there is only a progress room for the Plaintiff’s misconduct under the regulations on the disposition of misconduct by public officials and the regulations on disciplinary action, such as public educational officials.

(3) The Plaintiff did not have any money spent individually by the Plaintiff, was not in the leading position in the process of receiving the support money, and was only in the role of delivering the support money to the teachers who received the support money. On June 2009, other teachers made a false statement to be exempted from heavy disciplinary action even though other teachers expressed the existence and amount of the support money to the teachers who received the support money as of June 2009.

(4) As to teachers receiving money and valuables between 2008 and 2009, there was no case of dismissal by the Defendant, but there was no case of dismissal. Since the Plaintiff was dismissed in comparison with the reduction of salary in March, the instant disposition is contrary to the equity and the principle of proportionality or the principle of equality.

(5) The Plaintiff received and returned the support money in 2009, and the Defendant applied the instant disposition retroactively to the Posacrout scheme, which was implemented since 2010, and the Plaintiff had no disciplinary power during the Plaintiff’s 24-year mission as a teaching staff member, and students and parents have immediately appealed against the Plaintiff, and the instant disposition is too harsh even when weighing and balancing the Plaintiff’s private interests and public interests protected by the instant disposition.

(b) Related statutes;

It is as shown in the attached Form.

(c) Facts of recognition;

(1) After collecting support money from 35 parents, the president of the parents’ association paid KRW 12,60,000 to the Plaintiff’s (the head of the school and the head of the Ma○○○○○○○) by inserting KRW 2,00,000 under the Plaintiff’s book, KRW 10,000 under the Plaintiff’s book, and KRW 2,00,000 under the name of school travel expenses on May 1, 2009, and KRW 60,000 under the name of a gift gift certificate on Singing Day, on May 200.

(2) On May 12, 2009, the Plaintiff used 4,600,000 won, including 100,000 won per person, and 100,000 won per person as of June 1, 2009, 300,000 won per person as of June 1, 2009, respectively, for the 40,000,000 won for the pedagoging school meal expenses and 1,20,000 won for the pedagoging school meal expenses.

(3) On October 9, 2009, the Plaintiff paid 8,000,000 won to the executives of the parent association that collected money from them in a restaurant near the school, and returned 12,00,000 won to the executives of the parent association who collected money from them.

(4) On October 15, 2009, the Defendant filed an anonymous civil petition regarding the instant aid.

(5) During the literature response procedure conducted in the instant disposition, the Plaintiff and ○○, among the second-year teachers, stated that “the Plaintiff paid KRW 300,000 to the teachers at the office around June 2009, the Plaintiff expressed the existence and amount of the aid.” On the other hand, ○○ was aware of the fact that there was the aid, and 300,000 won was asked to the Plaintiff at around October, 200, ○○ stated that “the Plaintiff asked the Plaintiff whether he would be aware of it, and ○○ stated that it was safe money with “the Plaintiff’s notification of why he would be.” The ○ stated that “the Plaintiff was unaware of the fact that there was the aid,” and ○○ stated that “the Plaintiff did not return the aid money without the Plaintiff’s response,” and that “the Plaintiff was 10,000,000 won.”

(6) On February 3, 2009, the Defendant, by strengthening the partial amendment of the Code of Conduct for Public Officials and strengthening education on compliance with the Code of Conduct, distributed a notice to a public high school within the jurisdiction to ensure that a violation does not occur. On the 13th day of the same month, the Defendant read the content of the Code of Conduct Education on the Internet to be informed of the content of the Internet, and on April 2009, the Defendant inspected the implementation and operational status of the Code of Conduct for Police Officers. [Grounds for Recognition] In the absence of any dispute, each entry of Gap evidence 7, Eul evidence 1, 2, 4, 5, 6 (including serial numbers) is written;

The testimony of witnesses of the first instance court, ProfessorO, MaOO○, the purport of the whole pleadings.

D. Determination

(1) When a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the person subject to disciplinary action is at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take the disciplinary measure exercises discretion and it is recognized that the person having authority to take the disciplinary measure has abused discretion that has been entrusted to the person having authority to take the disciplinary measure, it shall be deemed unlawful. In order to deem that a disciplinary measure against a public official has considerably lost validity under social norms, depending on specific cases, the contents and nature of the disciplinary measure, the administrative purpose to be achieved by the disciplinary measure, and the criteria for the determination of disciplinary measures, etc., the contents of the disciplinary measure can be deemed clearly unfair as objective. Even if the exercise of authority to take the disciplinary measure is placed at the discretion of the person having authority to take the disciplinary measure, it is against the public interest principle that should exercise the authority to take the disciplinary measure for public interest, or if the person having authority to take the disciplinary action has violated the principle of proportionality and equality compared to the degree of flight, it is against 160.516

(2) According to the purport of each of the statements and arguments in the Health Team, Gap 5, 6, Gap 10-1 through 12, and Gap 11-1 through 63 with respect to this case, the plaintiff did not have any satisf for the life of 24 years. After acquiring a doctor's degree, the plaintiff did not receive any satfe for the life of 24 years, and contributed to the activation of the education of science and contributed to the promotion of the education for 3 times by recognizing the ability as a scientific teacher. The △△ High School contributed to the selection of the highest school for the extension of education, and the fact that other teachers related to the payment of the satfeies in this case received considerable trust from the parents of the above schools and the students of the above schools. It was relatively minor disciplinary action against the other teachers related to the payment of the satfeies in this case, and the defendant took three disciplinary measures against the teachers who received money and valuables from the supplier as an individual between 208 and 2009.

(3) However, considering the above facts and all the circumstances alleged by the Plaintiff, comprehensively taking into account the following circumstances revealed by the relevant statutes and the aforementioned adopted evidence, it cannot be deemed that the Defendant demanded a heavy disciplinary decision against the Plaintiff pursuant to the rules on handling of misconduct cases involving public officials or the rules on disciplinary action on public educational officials (which is irrelevant to the original program) and dismissed by the resolution. Accordingly, the instant disposition was considerably unreasonable in terms of social norms, or that it was a disposition contrary to the principle of proportionality or the principle of equity, and thus, it cannot be deemed that the Defendant deviates from and abused discretion on disciplinary action.

(1) All donations may not be collected except where the operating committee entrusts the collection of donations pursuant to Article 64(3) and (4) of the Enforcement Decree of the Elementary and Secondary Education Act. Here, the term "donations" means money or goods acquired without consideration, regardless of its name. In addition, Article 3 of the Elementary and Secondary Education Act and Article 64 of the Enforcement Decree of the same Act may collect school development funds by observing the items, procedures, and methods prescribed in the above Acts and subordinate statutes, but even in this case, if one of the above purposes, Section 1, and methods is not complied with, it is also subject to regulation. On the other hand, Article 2 [Attachment Table 2] of the Rules on Disciplinary Action, etc. against Public Educational Officials, if there is no intention to return money or goods to 00 won among violations of their duty of integrity, or if there is no intention to receive money or goods from 100 won or more, or if there is no intention to receive money or goods from 20 days or more, public officials are prohibited from receiving money or goods from 30 days or more.

② As the chief of the school year of high school, the Plaintiff was led by ○○○○, a parent of a student he/she was enrolled in, and did not immediately refund 12,60,000 won, and distributed or consumed to the school teachers, and the Plaintiff was in the leading position in the process of giving and receiving large amounts of support, such as holding and managing the support fund, and deciding the place of use, method of use, and amount of use, and asking the school teachers whether to return the support fund. Therefore, it is reasonable to deem that the Plaintiff’s money and valuables received cannot be deemed as 12,60,000 won, and the degree of misconduct also constitutes a case where gross negligence is heavy and at least gross negligence.

③ According to press reports, the number of illegal support funds for the last three years (from 2009 to April 201) is deemed to have reached KRW 3.277 million for 46 cases. The actual amount of support funds in a situation where it is difficult for parents to actively raise issues is presumed to have higher amount than that of support funds. The actual status of illegal support funds solicitation lies in the case where the parents are voluntarily recruited, but the schools are also able to use or suggest support funds. The parents are more likely to go to go to know about the disadvantage of their children, and even if they do not go to go to the school, they are expected to return to their children, and they are able to receive unfair support funds from their parents, and thus, they cannot be found to have been reliance upon their parents’ trust and trust in the process of raising new support funds. If they are unable to receive any unfair support funds from their parents, they cannot be found to have been found to have been found to have any disadvantage in the process of their education.

④ The Plaintiff asserts that “I would have not been subject to heavy disciplinary action, and why is why we should be subject to heavy disciplinary action.” However, it is because we would have been aware of the fact that the wrong practices in relation to the receipt of illegal support or the solicitation of illegal support did not disappear is due to the fact that the educational community and our society have accepted it under the name of the practice even though it was erroneous. As asserted by the Plaintiff, if we accept it under the equity with the time when the past wrong practices are acceptable, such practices cannot be solided, and they cannot be easily resolved.

⑤ Although recognizing that such wrong practice has not been recognized as unreasonable, our society did not actively take into consideration how it can be incorporated into the framework of the reality that has been made by bad practices, and even if it comes to know how it would be incorporated into the framework. The discussion on the harm and solution thereof is not a new, but a new one, if it has not been eradicated for a long period of time, it is an autonomous area where the practice is not subject to legal regulation, and it is based on historical experience for a long period of time, and there was a characteristic that the actor himself was not aware of the fact that he was committed and did not feel a special crime. However, if it continues to accept such wrong practices such as village or illegal support due to these practical limitations, our education site continues to be consistent with the social norms, such as the reason why our society would distort its own health, and the reason why our society would distort it.

6. Some teachers and parents who knowingly recognize or instigate erroneous practices, and the social atmosphere that silents them, the practices of village or illegal support fund did not disappear, and among the teachers, there was a conflict of opinion and conflict between them. Nevertheless, the educational community itself was actively raising an issue about the harmful effects of the villages or illegal support fund, and it was not possible to assert the responsibility for the harmful effects of the illegal support fund. The educational community of Korea seems to have lost the function of self-determination on the erroneous practices at the education site.

7) The Plaintiff has worked in good faith as a teacher for 20 years, and illegal support has been led by his parents, and there is room for seeing that the Plaintiff as an educational community has been able to attract human beings. Unless us waives scarcity on 'Be society', wrong practices must always be raised, but bad practices have the character of bad cycle, and the high brue cycle of bad cycle is very short, it is not easy to change the bones without any reflect and effort. However, it has been constantly at issue about the harmful effects of past villages or illegal support money, and most teachers have been aware of wrong practices, as well as the wrong practices, and thus, it is difficult to eliminate such wrong practices from 00 educational atmosphere to 200 educational atmosphere. It is also difficult for the Plaintiff to introduce such practices through 40 educational atmosphere.

8) When an educator becomes the object of the driver’s network and becomes the object of a lawsuit against his/her parents, he/she shall correct the education reality that has been abandoned to his/her parents. At the education site where erroneous practices are crossing, most teachers who have applied for high-ranking and endeavoring to change their behaviors shall not be made into vain water, and most teachers who have applied for high-ranking and endeavor to change their behaviors shall be subject to strict disciplinary action against teachers who receive illegal support even in order to restore their actual honor.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

(Presiding Judge)

Park Young-young

Park Jong-chul

Relevant statutes

former State Public Officials Act (Amended by Act No. 10148, Mar. 22, 2010);

Article 78 (Grounds for Discipline)

(1) If a public official falls under any of the following subparagraphs, he/she shall request a resolution on disciplinary action and the result of disciplinary action:

shall be subject to a disciplinary action.

1. Where he/she violates this Act or any order issued under this Act;

【Public Official Offense Handling Regulations

2. Attached Table 2. Criteria for disposal of violation of duty of integrity;

A person shall be appointed.

Rules concerning disciplinary action, etc. of public educational officials;

The Public Educational Officials Disciplinary Committee (hereinafter referred to as the "Disciplinary Committee") referred to in Article 2 (1) of the Decree on Disciplinary Action against Public Educational Officials shall decide on disciplinary action according to the criteria for disciplinary action prescribed in the attached Table, in consideration of the type of misconduct, degree of misconduct, degree of negligence, seriousness of negligence, conduct of deliberation, work grade, achievements, circumstances, and other circumstances of a discipline accused person.

A person shall be appointed.