2020 Gohap14458 Disposition of revocation of a reprimand

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Note 2

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Each litigation performer ○○

April 15, 2021

April 29, 2021

1. The plaintiff's claim is dismissed.

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

The Defendant’s reprimand disposition against the Plaintiff on December 27, 2019 shall be revoked.

1. Details of the disposition;

A. On August 6, 2019, at around 19:54, the Plaintiff brought one bicycle with a victim's gambling gamba, the market price of which is equivalent to KRW 849,000, which was owned by the victim's gamba, and brought one bicycle with a big gamba gamba (hereinafter referred to as "the facts subject to the instant disciplinary action").

B. The victim reported the theft of the above bicycle to the police, and on September 2, 2019, the Plaintiff returned the bicycle to the victim upon contact with the police, and on September 5, 2019, agreed with the victim.

C. On December 17, 2019, the Plaintiff was examined by the military judicial police officer as the above case, and the military prosecutor suspended the indictment on the above case. As a result of the Plaintiff’s disposition on the military unit to which the Plaintiff belongs, the prosecutor issued a disposition of suspending the indictment in consideration of the fact that the case is insignificant and contradictory to the notification. In the event of a failure to request disciplinary action, the Plaintiff stated that “In the event of a failure to request disciplinary action, a written reason for refusal shall be prepared and the main time shall be reached.”

D. On December 27, 2019, the Defendant, the commander of the Plaintiff’s unit, requested a disciplinary committee to take disciplinary action against the Plaintiff on the violation of the duty to comply with the law (any other theft) regarding the facts subject to the instant disciplinary action under the name of disciplinary action. On December 27, 2019, the disciplinary committee of the said unit recognized the facts subject to the instant disciplinary action, and discussed the Plaintiff’s agreement to return bicycles on the grounds of normal participation. As a result of voting, the Defendant, the Plaintiff’s commander, as

E. On the same day, the defendant took disciplinary action against the plaintiff for the same reason as the result of the above disciplinary committee (hereinafter referred to as the "disposition of this case").

F. The Plaintiff appealed and filed an appeal on January 20, 2020. However, as a result of the examination of disciplinary action, the Army Education Commander dismissed the Plaintiff’s appeal on the ground that the instant deliberation was recognized on July 17, 2020 and the initial disciplinary action was appropriate.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 4, the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff's bicycle was left neglected for a long time and brought about the bicycle as a fruitless bicycle. The plaintiff agreed to return the bicycle to the victim. Although it was possible to request disciplinary action after the suspension of indictment, the resolution was requested, and the plaintiff's public interest is no longer larger than the disadvantage suffered by the disciplinary action. Thus, the disposition in this case is unlawful since it is a deviation or abuse of discretionary power.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether a punitive administrative disposition deviates from or abused the scope of discretion should be determined by comparing and comparing the degree of infringement of public interest and the disadvantage suffered by an individual due to the disposition, objectively examining the content of the violation, which is the reason for the disposition, the degree of violation, the necessity of public interest to be achieved by the disposition, the disadvantage suffered by an individual, and all relevant circumstances (see, e.g., Supreme Court Decision 2016Du57984, May 15, 2018).

B. In light of the above legal principles, the following circumstances, which are acknowledged by comprehensively taking account of the facts as seen earlier, the evidence as seen earlier, Gap evidence and the overall purport of oral argument, i.e., even if the above bicycle has been left unattended for a long time, it cannot be deemed that the owner itself does not have the right to acquire ownership, and as a result, it is difficult to deem that the plaintiff did not recognize the illegality of his act at all. ii even if the plaintiff asserts, it is difficult to view that there was a crime of embezzlement of possession, which is not larceny, even if it was alleged to constitute a violation of the law of punishment even if the plaintiff's demand for a certain crime, and thus, it is difficult to view that the defendant's request for disciplinary action was not made in accordance with the above provision of disciplinary punishment, and thus, it is difficult to view that the defendant's request for disciplinary action, such as the defendant's duty to comply with the above provision of disciplinary punishment, even if there is no evidence to view it as unlawful.

Therefore, the plaintiff's above assertion is without merit.

5. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Park Jae-il

Judges Kim Jong-young

Judges Lee Dong-young

A person shall be appointed.