[1] The limits of discretion and the criteria for determining whether to abuse discretion in disciplinary action against public officials

[2] The case holding that it is not a deviation or abuse of the authority of disciplinary discretion to dismiss a police officer who has received KRW 10,00 from a traffic offender

[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 measure. Thus, in order to be unlawful, it is limited to a case where 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 because the disciplinary measure has considerably lost validity under the social norms. Whether a disciplinary measure against a public official has considerably lost validity under the social norms should be determined by taking into account various factors, such as characteristics of duties, the contents and nature of the offense causing the disciplinary measure, the administrative purpose that the person intends to achieve by the disciplinary measure, the criteria for the determination of disciplinary action, and in particular, the amount of money and valuables received, the circumstances leading up to the receipt, the timing of receipt, the timing of receipt

[2] The case holding that where a police officer actively demanded money from a signal violator subject to control and specifically informed him of the method of delivery so that no other person can be seen, and where he received money and valuables by the end of the day to prevent a misconduct by reporting to his winner, such as receiving a penalty, etc., even if the received money and valuables are only KRW 10,000,000, it is not a deviation or abuse of the authority of disciplinary discretion.

[1] Articles 78 and 79 of the State Public Officials Act, Article 27 of the Administrative Litigation Act / [2] Articles 78 and 79 of the State Public Officials Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 83Nu130 delivered on June 28, 1983 (Gong1983, 1207) Supreme Court Decision 90Nu8954 Delivered on July 23, 1991 (Gong1991, 2257) Supreme Court Decision 92Nu5157 Delivered on July 14, 1992 (Gong1992, 2430), Supreme Court Decision 97Nu14637 delivered on November 25, 1997 (Gong198Sang, 123), Supreme Court Decision 97Nu198 delivered on October 9, 198 (Gong198Ha, 2697) (Supreme Court Decision 2005Du648647 delivered on February 24, 2006)

Plaintiff (Attorney Lee Ho-chul et al., Counsel for the plaintiff-appellant)

The Commissioner of Busan Local Police Agency

Busan High Court Decision 2006Nu1760 decided September 29, 2006

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Summary of the judgment below

In full view of the selected evidence, the court below found that the plaintiff was appointed as a policeman on July 13, 1991 and was working in Busan Coast Guard Zone from February 25, 2005 to Busan Coast Guard Zone. On June 12, 2005, the plaintiff did not receive any money from the plaintiff 1 (22 years old) to stop and regulate the driver's car driving, and the above non-party 1 (22 years old) did not receive any money from the above non-party 1 to the above non-party 1 to the above non-party 6's duty of care, and "the above non-party 1 did not receive any money from the above non-party 1 to the non-party 5's office and the non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1'.'

Based on the facts found above, the court below determined that the disciplinary action of this case was unlawful since the defendant's dismissal disposition of this case, which the plaintiff deprived of his status as a public official, was excessively deviating from and abused discretion in light of the degree of the misconduct, in light of the following facts: the plaintiff actively demanded a money to the driver; the plaintiff specifically informed the passenger of the method of delivering money so that he can not be seen as any other person; the name of this case and the person who recorded the number of 10,000 won should be subject to a penalty; however, the plaintiff only received 10,000 won, except that he denied temporary misconduct in the course of the investigation; the plaintiff made a confession to the court below; and the plaintiff was in depth from the oral argument to the court below; and the plaintiff was subject to a minor disciplinary action twice or more times until the time of the disposition of this case; the plaintiff was awarded two times or more commendations until the time of the disposition of this case; and it was service faithfully.

2. Determination:

In a case where a disciplinary measure is taken against a person subject to disciplinary action who is a public official, the disciplinary measure is placed at the discretion of the person having the authority to take the disciplinary measure. Thus, in order to be unlawful, the disciplinary measure is limited to a case where the person having the authority to take the disciplinary measure has abused the discretion that has been entrusted to the person having the authority to take the disciplinary measure because the disciplinary measure has considerably lost validity under the social norms. Whether a disciplinary measure against a public official has considerably lost validity under the social norms should be determined by taking into account various factors, such as characteristics of duties, the contents and nature of the offense causing the disciplinary measure, the administrative purpose that the person intends to achieve through the disciplinary measure, the criteria for the determination of disciplinary measures, and in particular, the amount of money and valuables received, circumstances leading to the receipt, the time of receipt, and whether the disciplinary measure had influenced his duties after the receipt (see Supreme Court Decisions 83Nu130, Jun. 28, 198; 90Nu8954, Jul. 23, 1991).

In this case, according to the court below's findings, the plaintiff is a police officer with the authority and duty to regulate traffic offense, who is subject to the control, actively demanded money from the violator, received money from others, and ordered him to pay money so that he can not be seen by others, and the plaintiff's name and he reported the plaintiff's illegal act to the dong with the name of the plaintiff and the son whose number is recorded. Thus, even if the money received by the plaintiff is not less than KRW 10,00,00 and is not a big amount, it would be difficult for police officers to fairly and strictly regulate traffic offense if they do not take strict disciplinary action against the above act of receiving money by the police officer, and it would be difficult for the general public and the police officers working together with the above duty to collect integrity of the police officer. Therefore, even if considering the circumstances acknowledged by the court below, the defendant's dismissal of the plaintiff on the ground of the ground of the ground of the disciplinary action in this case is obviously inappropriate in light of the plaintiff's duty's nature and purpose of disciplinary action, and the contents of disciplinary action.

Nevertheless, the judgment of the court below that revoked the dismissal disposition of this case as it deviates from or abused the scope of discretion, is erroneous in the misapprehension of legal principles as to the scope of discretion, and it is obvious that such illegality affected the conclusion of the judgment. Thus, the ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)