(영문) 춘천지방법원 영월지원 2016.4.28.선고 2015가합2234 판결

A. The Plaintiff is the principal of CF middle school (hereinafter referred to as “CF”) operated by a school juristic person B (hereinafter referred to as “B”) from March 1, 201 to December 9, 2014, and was in office as a teacher of the said middle school from December 10, 2014 to March 1, 2015.

B. Around December 2, 2010, the president D was convicted of having received 20 million won from the Plaintiff for an illegal solicitation to appoint a principal of CB, and the said judgment became final and conclusive (this Court Decision 2012Da527, Chuncheon District Court 2013Do368, Supreme Court 2013Do11735, Chuncheon District Court 2014Do566, Dec. 23, 2014), and the Plaintiff was sentenced to suspension of indictment on the ground that D granted 20 million won, along with an illegal solicitation.

C. Around July 31, 2014, the Defendant instructed the Plaintiff to dismiss the Plaintiff from the position of the principal by August 31, 2014, on the ground that the Plaintiff had the same interest as that of the said B in the process of appointing the principal of the CF in 2011, and notified the Defendant that the Defendant will suspend payment from September 1, 2014, of the Plaintiff’s personnel expenses out of the financial defective subsidies that the Defendant paid to B.

D. Around August 28, 2014, around August 28, 2014, B reported that since the Plaintiff’s payment to D to D constitutes a loan, the personnel measures for the dismissal of assignment should be suspended on the ground that it is unreasonable.

E. Accordingly, from September 1, 2014, the Plaintiff suspended the full amount of the subsidy for financial decision-making, equivalent to the Plaintiff’s personnel expenses, to B.

F. On December 10, 2014, B dismissed the Plaintiff from the position of CB principal at the position of CB principal, but on February 10, 2015, B again appointed the Plaintiff as CB principal.

G. On February 24, 2015, the Defendant notified the Plaintiff that he would not pay the amount of financial defective assistance corresponding to the Plaintiff’s personnel expenses if he/she did not comply therewith.

H. B revoked the personnel order of February 10, 2015 against the Plaintiff, and the Plaintiff resigned from the office of teacher on March 1, 2015.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1, 2, 3, 6, 7 evidence (including each number, if any), the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The Plaintiff merely lent KRW 20 million to D, and did not pay the above money for the purpose of solicitation to appoint the principal of CF as CF. Moreover, the Plaintiff’s suspension of indictment does not constitute a ground for removal from position as stipulated in Article 58-2 of the Private School Act. Nevertheless, the Defendant’s suspension of payment of the Plaintiff’s financial defective subsidy corresponding to the Plaintiff’s personnel expenses in order to demand B’s dismissal from position, and achieve the above demand constitutes a tort against the Plaintiff as it forced B to perform an act without any obligation or abused the Defendant’s rights. Accordingly, the Defendant’s suspension of payment of the Defendant’s financial defective subsidy corresponding to the Plaintiff’s personnel expenses from September 1, 2014 to February 28, 2015, and from March 1, 2015 to February 28, 2015 to KRW 27,472,140, and from March 1, 2015 to December 28, 2017.

3. Determination

(a) Relevant statutes;

It is as shown in the attached Form.

B. Determination

1) First of all, according to the above facts, the Plaintiff may make a solicitation that the Plaintiff would be appointed as the principal of CF and paid KRW 20 million to D. The evidence submitted by the Plaintiff alone is insufficient to reverse the above facts of recognition, and there is no evidence to acknowledge the fact that the above KRW 20 million constitutes a loan, contrary to the Plaintiff’s assertion.

2) Article 4(1) of the former Private School Act (amended by Act No. 13938, Feb. 3, 2016; hereinafter the same) provides that a school foundation which establishes and operates a private middle school shall be subject to the instruction and supervision of the Special Metropolitan City, Metropolitan City, or Do superintendent of the Office of Education having jurisdiction over its domicile. In addition, Article 54(3) of the former Private School Act provides that "If a private school teacher falls under the grounds for dismissal and disciplinary reasons prescribed in this Act, the competent agency may request the person who has the authority to appoint and dismiss the relevant teacher to dismiss the relevant teacher." Article 54-2(1) provides that "If the head of each school of all levels falls under the grounds for dismissal under any subparagraph of Article 58(1) (Reasons for Dismissal), the competent agency may request the person who has the authority to appoint and dismiss the relevant school to dismiss the head of the relevant school, and Article 61(1)3 of the former Private School Act provides that "when he/she damages the dignity of a teacher regardless of his/her duties."

Meanwhile, Article 43(1) of the former Private School Act provides that "the State or a local government may grant subsidies or give other subsidies to a school foundation or private school support organization which has applied for subsidies as prescribed by Presidential Decree or Municipal Ordinance of the relevant local government for the purpose of supporting education at private schools, and Article 43(3) of the same Act provides that "the State or a local government may suspend the payment of subsidies in whole or in part where the payment of subsidies is not made by a school foundation or private school support organization under paragraph (1) or where a school foundation or private school support organization fails to comply with the recommendation of the competent agency under paragraph (2)." In addition, Article 17 of the former Gangwon-do Ordinance on the Management of Subsidies for Education and Arts (wholly amended by Ordinance No. 3839 of April 24, 2015) provides that "the Superintendent of an Office of Education may order the recipient of subsidies to fully or partially suspend the payment of subsidies in a case where the recipient of subsidies violates the purpose of the payment of subsidies, or does not contribute to the public."

According to the relevant Acts and subordinate statutes as seen above, the defendant has the authority to comprehensively guide and supervise B as the competent authorities, and has the authority to request the dismissal or disciplinary action against the teacher of a private school or the head of a school at each level, and has the authority to decide whether to suspend the payment of subsidies or the payment of subsidies to B, and a wide range of discretion in relation thereto. In addition, as seen earlier, the plaintiff committed an interest in granting money to C in the course of appointment as the principal of CF, compared to dismissal or dismissal in the case of removal from position, it can be deemed that the disadvantage to the parties is weak, compared to removal or dismissal in the process of appointment as the principal of CF, it can be deemed that the payment of subsidies to a private school corporation is made for public interest needs, such as the promotion of the private school, and the payment of subsidies to the private school corporation is made from the public financial resources, and the defendant who is the competent authority needs to supervise the appropriateness of the operation of the private school through the provision of subsidies, etc. can not be deemed unlawful or unfair acts against the plaintiff.

3) Also, since the Defendant is obligated to pay benefits to the Plaintiff, even if the Plaintiff was not paid benefits from the Plaintiff during the period of suspending the payment of subsidies to the Plaintiff, this alone cannot be said to have a proximate causal relationship between the Defendant’s suspension of subsidies and the Plaintiff’s injury equivalent to the Plaintiff’s unpaid wages. Furthermore, it is difficult to deem that a proximate causal relationship exists between the Defendant’s order to dismiss the Plaintiff from the replacement of the Plaintiff from the replacement of the principal of inn and the resignation of the Plaintiff from the teachers of inn. C.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed for reasons.