[Plaintiff, Appellee] Plaintiff
[Defendant, Appellant] Commissioner of the Seoul Metropolitan Police Agency
[Judgment Below] Seoul High Court Decision 2001Nu17038 rendered on June 21, 2002
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. According to the reasoning of the first instance judgment cited by the court below, the first instance court found the following facts: The Plaintiff was appointed as a patrolman (순경) on March 6, 1982, and from February 17, 2000, worked in the Investigation Division, Investigation Section of the Gangnam Police Station. On November 8, 2000, the Plaintiff received the disciplinary action of dismissal at issue in this case (the "instant dismissal") from the Defendant, on the grounds that: (1) at around 20:00 on March 15, 2000, the Plaintiff received an improper request from Nonparty 1, the complainant in a case the Plaintiff was handling, to handle the case favorably, and received entertainment worth 395,000 won in return; (2) at around 21:30 on the same day, the Plaintiff received 1,000,000 won from Nonparty 1; (3) at around 20:00 on April 1 of the same year, the Plaintiff received one bottle of whiskey from Nonparty 1; and (4) despite the fact that the Plaintiff had received the above bribes, on June 7, 2000, the Plaintiff filed a criminal complaint against Nonparty 1—who had filed a petition (진정) alleging that he had given a bribe—asserting that Nonparty 1 had falsely accused the Plaintiff and requesting that Nonparty 1 be punished, thereby falsely accusing (무고) Nonparty 1.
However, [the first instance court] found as follows: it is established that the Plaintiff received an improper request from Nonparty 1, the complainant in the case the Plaintiff was handling, to handle the case favorably, and thereafter received bribes as described in grounds ① and ③ above; and that afterward, when the Plaintiff forwarded the case against the accused in the complaint filed by Nonparty 1 to the prosecution with an opinion of "no suspicion," Nonparty 1, dissatisfied with this, filed a petition with the Gangnam Police Station expressing dissatisfaction with the handling of the case and alleging that the Plaintiff had received bribes; the Plaintiff, despite having in fact received bribes from Nonparty 1 on the two occasions described above, filed a criminal complaint with the Bundang Police Station stating, in substance, that "although Nonparty 1 proposed on March 15, 2000 that they go together to a good bar in Bundang, the Plaintiff declined this and returned home, and the Plaintiff never had a meal with Nonparty 1 at a restaurant in Hanam-si on April 1 of the same year; nevertheless, Nonparty 1, in order to drive the Plaintiff out of the police force, filed a false petition alleging that the Plaintiff had received the above bribes, thereby falsely accusing the Plaintiff, and Nonparty 1 should be punished"—thereby falsely accusing Nonparty 1 (the fact underlying disciplinary ground ④). This fact was found to be established. However, the first instance court found that the evidence submitted by the Defendant supporting disciplinary ground ②, namely that the Plaintiff received 1,000,000 won from Nonparty 1, was not credible, and there was no other evidence to establish this fact.
Having found the facts as above, the first instance court held that even the facts established as above among the disciplinary grounds in this case constitute grounds for disciplinary action under Article 78(1), Items 1, 2, and 3, and Articles 56 and 61 of the State Public Officials Act (국가공무원법). However, in light of the following circumstances: that the Plaintiff had served faithfully for 18 years and 7 months, receiving a total of 14 commendations including two commendations from the Minister of Home Affairs; that the instant disciplinary action also took into account disciplinary ground ②, i.e., that the Plaintiff received 1,000,000 won from Nonparty 1, which, as noted above, was not established; that of the entertainment provided by Nonparty 1, the Plaintiff's share amounted to only about 80,000 won; and that the whiskey received from Nonparty 1 was shared and consumed together with Nonparty 1 on the spot—the first instance court held that the instant dismissal was excessively harsh toward the Plaintiff and constituted an unlawful deviation from and abuse of discretion, and accordingly revoked the instant dismissal.
2. However, where a disciplinary ground exists with respect to a public official subject to disciplinary action, the determination of what disciplinary action to impose is left to the discretion of the disciplinary authority. A disciplinary action taken by the disciplinary authority in the exercise of such discretion may be held unlawful only where it is found to have clearly lost reasonableness in light of common social norms, thereby constituting an abuse of the discretion entrusted to the disciplinary authority. In order for a disciplinary action against a public official to be found to have clearly lost reasonableness in light of common social norms, it must be recognized, upon comprehensive consideration of various factors—including the content and nature of the misconduct that formed the ground for the disciplinary action, the administrative purpose sought to be achieved through the disciplinary action, and the standards for determining the severity of disciplinary action, in light of the specific case at hand—that the content of the disciplinary action is objectively and clearly unreasonable (see, e.g., Supreme Court Decision 97Nu14637 rendered on November 25, 1997). Furthermore, even if some of several disciplinary grounds are not established, if the other disciplinary grounds that are established are sufficient in themselves to justify the reasonableness of the disciplinary action in question, it is not unlawful to sustain that disciplinary action (see, e.g., Supreme Court Decision 91Nu4102 rendered on November 22, 1991).
Examining this case in light of the foregoing legal principles: according to the facts as established by the court below, the Plaintiff, as a police officer, not only received an improper request from the complainant in a case he was handling in connection with the handling of that case and accepted bribes in the form of entertainment and a gift of whiskey, but further, in order to conceal his own bribery offense, committed the additional criminal act of falsely accusing the very complainant who had reported the bribery. Even excluding the disciplinary ground not established by the court below, such conduct must be regarded as a serious violation of a police officer's duty of good faith and duty of integrity, an act that gives rise to public distrust of the police, and an act that damages the dignity of the police force as a whole. Furthermore, according to the record, it can be seen that the Plaintiff had previously, on May 23, 1997, received the severe disciplinary action of a three-month suspension for a disciplinary ground similar to the present one, namely, receiving money and valuables. In light of the degree of the misconduct committed by the Plaintiff (in particular, the fact that he went so far as to falsely accuse another) and the Plaintiff's prior record of severe disciplinary action, even taking into account all the circumstances appearing in the record—such as the fact that the Plaintiff had received 14 commendations over his long years of service as a police officer, that the value of the entertainment received and the bribe accepted was small, and that despite having received the bribe, the Plaintiff reached a conclusion unfavorable to the complainant, Nonparty 1, in handling the case—it cannot be said that the instant dismissal by the Defendant was so excessively harsh toward the Plaintiff as to have clearly lost reasonableness in light of common social norms, such that it exceeded the bounds of discretion and was unlawful. Rather, the instant dismissal appears to be a case in which its reasonableness may be sufficiently acknowledged.
Therefore, the judgment below, which revoked the instant dismissal on the ground that it was unlawful as a deviation from and abuse of discretion, contains an error of law in misunderstanding the legal principles concerning the limits of discretion in disciplinary actions, which affected the judgment, and the ground of appeal pointing this out is well-founded.
3. Accordingly, without the need to examine the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered by the unanimous opinion of the Justices participating in the case, as set forth in the Order.
Presiding Justice Song Jin-hoon
Justice Byun Jae-seung
Justice Yoon Jae-sik (Justice in charge)
Justice Lee Gyu-hong