[1] The method of determining whether the head of an educational institution, etc. is unlawful as it goes beyond the discretionary power to demand a disciplinary resolution within one month after being notified by the head of an investigative agency, etc. of the relevant data that can prove the grounds for disciplinary action of the public educational official under his/her control, and whether there is a reasonable ground

[2] Where the head of a local government’s educational institution, etc. received an order to perform duties to request disciplinary action from the competent Minister because he/she was not notified of the grounds for disciplinary action against a public educational official by an investigative agency, etc., and filed a lawsuit for objection thereto, whether the case constitutes neglecting his/her duties solely on the ground that he/she did not request disciplinary action within one month from

[1] Article 6(3) and (4) of the Decree on Disciplinary Measures against Public Educational Officials provides that the head of an investigation agency, etc. who becomes aware of a disciplinary cause shall notify the relevant materials to the head of the educational agency, etc. having the authority to request a disciplinary resolution on the relevant public educational official to ensure the smooth progress of disciplinary proceedings by notifying him/her of the relevant materials verifying the disciplinary cause. Meanwhile, even in this case, the head of the educational agency, etc. having the authority to request a disciplinary resolution shall have the discretion to determine whether specific acts of the public educational official under his/her jurisdiction fall under the grounds for disciplinary action based on the materials notified. However, if it is objectively evident that the public educational official falls under the grounds for disciplinary action through the notified materials, etc., the duty to request a disciplinary resolution shall be deemed to exist within one month unless there is a reasonable reason. Thus, if the competent disciplinary committee does not request a disciplinary resolution on the relevant public educational official within one month without any justifiable reason, this is unlawful as exceeding the bounds of discretion, and it may constitute a case where specific duty to act is not granted under the law.

[2] Article 170(1) and (3) of the Local Education Autonomy Act provides that where the head of a local government clearly neglects the management and enforcement of affairs delegated to him/her under his/her duties, the competent Minister may order the performance of his/her duties, and the head of a local government may file a lawsuit with the Supreme Court within fifteen days if he/she objects to the implementation order (Article 170(1) and (3) of the Local Education Autonomy Act). This provision also applies mutatis mutandis to the affairs concerning the education and arts of the local government under Article 3 of the Local Education Autonomy Act concerning the education and arts of the local government. Therefore, even if the head of an educational institution, etc. of a local government is ordered by the competent Minister to perform his/her duties in handling disciplinary affairs against public educational officials delegated to him/her, he/she may file a lawsuit with the Supreme Court if he/she objects to the request for disciplinary action even though he/she is notified of the grounds for disciplinary action by the competent Minister, barring special circumstances such as the materials notified by an investigative agency, etc.

[1] Article 6 (3) and (4) of the Decree on Disciplinary Action against Public Educational Officials / [2] Article 122 of the Criminal Act, Article 3 of the Local Education Autonomy Act, Article 170 (1) and (3) of the Local Autonomy Act

Defendant

Prosecutor

Law Firm Csan et al.

Seoul High Court Decision 2010No2212 decided January 6, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. A. The crime of abandonment of duties under Article 122 of the Criminal Act is not established in all cases where a public official neglects his/her duty to loyalty abstractly by statutes, internal rules, etc., but is established by failure to perform his/her duty under the awareness that he/she loses his/her duty (see Supreme Court Decision 2009Do963, Jan. 14, 2010, etc.).

B. The former Public Educational Officials Act (amended by Act No. 11066, Sep. 30, 201; hereinafter “Public Educational Officials Act”) provides that the head of an educational institution, educational administrative agency, local government, or educational research institution prescribed by the Presidential Decree (hereinafter “educational institution, etc.”) shall establish a Public Educational Officials Disciplinary Committee (Article 50(1)) in order to have a public educational official make a resolution on disciplinary action, etc. (Article 51(1)); and that where the head of an educational institution, etc. deems that a public educational official under his/her jurisdiction falls under any disciplinary cause under any of the subparagraphs of Article 78(1) of the State Public Officials Act and any of subparagraphs of Article 69(1) of the Local Public Officials Act, he/she shall, without delay, request the disciplinary committee having jurisdiction over the relevant disciplinary case to make a resolution (Article 51(1)). Meanwhile, Article 6(1) of the Public Educational Officials Disciplinary Decree provides that the head of an educational institution, etc. shall submit relevant materials necessary for evidence after sufficient investigation is conducted.

As above, the legislative purpose of stipulating the matters concerning the disciplinary action of public educational officials is to protect the rights and interests of public educational officials and to promote the rationality and fair operation of the procedures so as to ensure fairness in the disciplinary action as well as to protect the rights and interests of public educational officials by ensuring the arbitrary disciplinary action by the appointing authority. In addition, in full view of the fact that the relevant Acts and subordinate statutes impose on public educational officials the duty to request the disciplinary resolution on the head of the relevant educational institution, etc. when there is a cause for disciplinary action, and require the competent disciplinary committee to submit relevant materials necessary for proving the cause for disciplinary action, the head of the educational institution, etc. shall have discretion to determine and decide whether the act of public educational officials under his/her jurisdiction constitutes a cause for disciplinary action, and if it is objectively evident that the act constitutes a cause for disciplinary action based on the results of investigation, etc., the head of the relevant educational institution, etc. shall have the duty to request the competent disciplinary committee for

C. Meanwhile, Article 6(3) and (4) of the Decree on Disciplinary Measures against Public Educational Officials provides that when the head of an administrative agency, such as an investigative agency, deems that there is a cause for disciplinary action against a public educational official, he/she shall notify the head of the educational agency, etc. who has the right to request a disciplinary decision, of relevant materials proving the cause for disciplinary action, such as notification of the result of the public official’s crime disposition, and the head of the educational

The purpose of this is to enable a public educational official to smoothly proceed with disciplinary proceedings by notifying the head of an investigative agency, etc. having authority to request a disciplinary decision on the relevant public educational official of relevant materials proving the grounds for disciplinary action, and to check the operation of arbitrary disciplinary action by a person with authority to request a disciplinary decision. Therefore, even in this case, the head of an educational agency, etc. having authority to request a disciplinary decision shall have the discretion to determine whether specific acts of the public educational official under his/her jurisdiction fall under the grounds for disciplinary action based on the materials notified. However, if it is objectively evident that such act falls under the grounds for disciplinary action through materials notified, etc., the head of the educational agency, etc. having authority to request

Therefore, if a disciplinary resolution is not requested to the competent disciplinary committee within one month without a reasonable ground for not requiring a disciplinary resolution, it is unlawful as it goes beyond the bounds of discretionary power, and it constitutes a case where a specific duty of commission is not performed under the law. Whether a disciplinary ground is objectively apparent and reasonable, and whether there exists a reasonable ground should be determined in an objective and reasonable manner as of the point of time after the relevant material was notified of the specific factual basis, which constitutes the grounds for disciplinary action, including the content of the factual basis notified, legal evaluation thereof, degree of furnishing evidence, necessity and adequacy of the disciplinary action, and whether there were reasonable grounds for reservation of the request for disciplinary resolution, etc.

D. On the other hand, in cases where the head of a local government clearly neglects the management and execution of state delegated duties under the provisions of statutes, the competent Minister may order the performance of such duties, and the head of a local government may file a lawsuit with the Supreme Court within 15 days if he/she objects to the implementation of such duties (Article 170(1) and (3)). This provision also applies mutatis mutandis to the affairs concerning the education and arts of local governments under Article 3 of the Local Education Autonomy Act. Therefore, even if the head of an educational institution, etc. of a local government is ordered the competent Minister to perform his/her duties in handling disciplinary affairs against public educational officials who are the State delegated duties, a lawsuit may be brought with the Supreme Court if he/she objects to the order of the competent Minister to request disciplinary action even though he/she was notified of the grounds for disciplinary action. Thus, even if the head of an educational institution, etc. was ordered by an investigative institution, etc., even if he/she did not request disciplinary action, it cannot be deemed immediately abandon his/her duties by taking account of materials notified by an investigative institution, etc.

2. The court below held that: (a) there were various opinions on whether the act of this case constitutes a violation of Article 66(1) of the State Public Officials Act or an act within the scope of the freedom of expression guaranteed by the Constitution; and (b) there was room to interpret the act of this case as not constituting a collective act prohibited under Article 66(1) of the State Public Officials Act, on the grounds that the first instance court rendered a judgment of partial acquittal in the case of violation of the State Public Officials Act by the Act on the Prohibition of Collective Activities against the State Public Officials, the head of the Korean Teachers’ Union and Staff Workers’ Union and the full-time officer of the branch, etc.; and (c) there was no need to determine whether the act of this case constitutes a ground for discipline against the act of this case depending on what opinion was withdrawn; (b) even if the defendant was notified by the investigative agency of the result of a crime of violation of the State Public Officials Act, it is hard to conclude that the act of this case constitutes a violation of the Act of the State Public Officials Act’s final decision on disciplinary action.

On the other hand, the record reveals that, after being notified by the investigative agency of the result of the above crime disposition, the Defendant expressed a policy to reserve the disciplinary request until the act is confirmed by the court as illegal or not, and the competent Minister ordered the request for disciplinary decision, but the Defendant filed a lawsuit of objection with the Supreme Court.

3. Examining the aforementioned facts and the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s conclusion that the Defendant’s act of reserving a request for disciplinary decision despite the competent Minister’s request for disciplinary decision does not constitute a crime of abandonment of duties is justifiable. The lower court did not err by misapprehending the legal doctrine on the establishment of a request for disciplinary decision and a crime of abandonment

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)