(영문) 서울행정법원 2015.6.25. 선고 2015구합55202 판결

On August 29, 2014, the defendant issued a reprimand against the plaintiffs on the grounds stated in the separate sheet (violation of duty of good faith) (hereinafter referred to as "disposition in this case").

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2 (including virtual number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

Considering that a university education capacity strengthening project (hereinafter referred to as the "project in this case") is diverse types of irregularities and corruption so it is difficult to establish sanctions and reflect them, there is no law and clear criteria for them, among the universities subject to audit and inspection, the plaintiffs are deemed to be subject to exclusion only for universities which have caused a significant social concern, and there was no basic plan to reflect the results of audit and inspection in other projects, such as BK21, etc., the plaintiffs' successor was presented to the business management committee to impose sanctions against universities specified as illegal and non-university according to the records of the Board of Audit and Inspection of the Board of Audit and Inspection of December 2013, 200, which was not subject to sanctions, but is not subject to sanctions, such as ex post facto recovery of subsidies, and the purpose of the business where the universities subject to audit and inspection are uniformly excluded from the subject of support, the plaintiffs' business affairs cannot be deemed to have violated the plaintiffs' duty of good faith.

Even if the plaintiffs violated their duty of good faith, the plaintiffs have been able to lead an individual life for a long time and have faithfully performed difficult work, and the plaintiffs A awarded the Order of Red-Support Merit, the plaintiffs B also won the official commendation of the Minister of Labor, the Minister of Education, Science and Technology, the presidential commendation, and the plaintiff C also received the official commendation of the relevant Minister, and the exemplary official commendation, there is a normal reason to avoid or reduce the disciplinary action against the plaintiffs.

Therefore, the instant disposition should be revoked in an unlawful manner.

C. Determination

(1) The following facts can be acknowledged if the existence of the grounds for disciplinary action reveals the overall purport of the pleading in Gap evidence Nos. 1-4, Eul evidence Nos. 1-2, and Eul evidence Nos. 1 and 2 (including paper numbers).

① From February 25, 2011 to July 22, 2013, Plaintiff A worked as the director of the Education, Science and Technology D division, and overall control over the instant business affairs. From February 25, 2011 to September 2, 2012, Plaintiff B was an administrative officer in charge of the review of the basic plan and the selection of the support university in 2012 of the instant project. Plaintiff C, as a successor of Plaintiff B, was in charge of the review of the basic plan and the selection of the support university in 2013 of the instant project. From September 3, 2012 to December 31, 2013, Plaintiff C was in charge of the review of the basic plan for the instant project and the selection of the support university in 2013.

② The instant basic plan for the business year 2012 was finalized on March 8, 2012, and the “Standards for the Restrictions on Financial Sanctions pursuant to Illegal and Non-Profit (hereinafter “instant sanctions standards”) was newly established in attached Table to the said basic plan (hereinafter “instant sanctions”). The instant sanctions standards were formulated as a corrective demand to ensure that the government’s subsidies budget is strictly executed in the deliberation on the settlement of accounts in 2010 and the inspection of the state administration in 2011.

③ During the process of formulating the instant sanctions on January 5, 2012, Plaintiff B received the audit results from the audit officer of the Ministry of Education, Science and Technology to the university, and did not notify the university education council of the foregoing data, and ten universities, such as the master university or college, which filed a request for investigation or an accusation by the Ministry of Education as shown in attached Table 1, were selected and reported as eligible for support. As such, Plaintiff B prepared a document to support as selected by the university education council and confirmed it with the approval of the Minister on April 12, 2012 after the examination by the director of the division (Plaintiff A). At the time, Plaintiff B kept a file for verifying the list of universities, which filed an accusation of the chief director and the academic technology department of education with the suspicion of unjust or unjust enrichment, on his/her own computer.

④ Around April 2012, a civil petition was filed to the effect that the 2012 Support University was unfairly determined to be a support university for the year 2012, even though a school juristic person was accused of misappropriation in 2010. Accordingly, the business management committee decided to cancel the support of the remaining KRW 1.84 billion, excluding KRW 460 million already executed, among the business expenses determined to be subsidized by the lux University on May 2012. The Plaintiff A and B did not review other illegal and non-universitys in accordance with the instant sanctions standards even after the said date.

(5) The instant sanctions are also included in the instant basic plan for the year 2013 of the instant project. Nevertheless, in order to identify the illegal and irregular universities, Plaintiff C did not receive the audit results or a register of accusation from the audit officer, or did not think that it would take measures against the illegal and irregular universities on the basis thereof. Although the University Education Council selected and reported as 14 Dos of the illegal and irregular universities during the year 2008 to 2013 as shown in the attached Table 2, it was determined by preparing a document to support as selected by the University Education Council, after the review by the director of the division.

6) Although Plaintiff B received a report from the audit officer on January 5, 2012 on the fact that Plaintiff B received and examined university audit results from the audit officer, Plaintiff B and C did not identify the illegal and non-university and did not instruct Plaintiff B and C to notify it to the university education council, and Plaintiff B and C did not approve the document prepared by Plaintiff B and C as eligible for support as above, and the proposal was finalized after obtaining approval from the Minister.

B) As seen above, the instant sanctions were prepared to seek strict enforcement of government finance subsidies by imposing sanctions such as exclusion from the selection of a university of support, suspension of execution of project costs, etc. on illegal and non-universitys in accordance with the demands to ensure that the government-funded budget is strictly implemented in the deliberation of the National Assembly on the settlement of accounts and the inspection of the state administration of the Educational Science and Technology Committee, and that such sanctions were partly dealt with the instant master plan for the business year 2012 and the basic plan for the business year 2013.

According to the instant sanctions standards, if the illegality and corruption of a university is confirmed through the audit of the Ministry of Education, Science and Technology, etc., the sanctions shall be determined within three months after the date of recognition of the illegality and corruption even before the selection of the support university; Provided, That if the determination of sanctions is not completed before the selection of the support university, the sanctions may be imposed after the selection of the support university. The person who conducts the administrative affairs of the relevant university and the relevant school foundation at the time of the occurrence of illegality and corruption, and if necessary, the other members of the university can be deliberated and punished by the decision of the Business Management Committee, and if necessary, the scope of illegality and corruption may be directly related to the administrative affairs of the university (school affairs, finance, personnel affairs, etc.), and even if there is any illegality and corruption that are not directly related to the operation of the university, it may be deliberated and punished by the decision of the Business Management Committee and the standards for sanctions by types

The Plaintiffs, as public officials in charge of the instant project, are well aware of the instant sanctions, and actively grasped whether there was a university accused of illegal or unjust acts even before the selection of the support university, and if there is a university accused of illegal or unjust acts, the business management committee was obligated to perform the duties of selecting the support university and executing the project expenses in accordance with the instant sanctions, such as having the business management committee determine sanctions against the relevant university.

However, the Plaintiffs did not make any effort to select a supporting university in accordance with the instant sanctions, and did not make all efforts to take appropriate measures against other illegal and non-affiliated universities in accordance with the instant sanctions even after the civil petition was filed with respect to the improper budgetary support for the university. The Plaintiffs’ act constitutes a violation of the duty of good faith (Article 56 of the State Public Officials Act).

(2) A disciplinary decision

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 taken at the discretion of the person having authority to take the disciplinary measure, and it is unlawful only when the person having authority to take the disciplinary measure is deemed to abuse the discretionary power vested in the person having authority to take the disciplinary measure as a matter of social norms. In order for a disciplinary measure against a public official to have substantially lost validity under social norms, the disciplinary measure against the public official should be determined by taking into account various factors, such as the content and nature of the misconduct causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for a disciplinary measure, etc., and should be determined that the contents of the disciplinary measure can be objectively and clearly deemed to be unfair (see, e.g., Supreme Court Decisions 2013Du19882, Jan. 29, 2014; 2012Du10895, Oct. 11, 2012).

In light of the fact that the reprimand that the plaintiffs received is the lowest level of disciplinary action as prescribed by the State Public Officials Act and the Decree on Disciplinary Action against Public Officials for the above violation of the plaintiffs' duty of good faith, the plaintiffs' trust in the business of selecting supporting universities and the business of executing subsidies in violation of the above duty of good faith, and the need for strict reprimand in order to prevent the recurrence of similar cases and establish public service discipline, even if considering all the circumstances of the plaintiffs, it cannot be deemed that the public interest which the plaintiffs intended to achieve the disposition of this case is less vulnerable than the disadvantage they would suffer from, and thus, the disposition of this case cannot be deemed an illegal disposition that deviates from and abused discretion.

3. Conclusion

Therefore, the plaintiffs' claims are not accepted.