[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Commissioner of Gangwon-do Provincial Police Agency
[Judgment Below] Seoul High Court Decision 97Gu53757 dated December 10, 1998
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning] The grounds of appeal are examined.
1. As to the argument of mistake of fact due to violation of the rules of evidence
According to the reasoning of the judgment below, the court below found as follows: around January 1994, the Plaintiff, at the request of Nonparty 1, who operated a rubber glove factory and whom the Plaintiff had known, endorsed a promissory note in the amount of KRW 30,000,000; when Nonparty 1 defaulted and fled, the Plaintiff had to repay the debt in his place, and due to a shortage of funds, the Plaintiff borrowed money on 12 occasions, including obtaining a loan of KRW 7,321,745 from Kookmin Bank on July 25, 1994, and used the borrowed money to repay the principal and interest of existing loan obligations or guarantee obligations, while spending a considerable portion on expenses such as his children's overseas language study expenses and other educational expenses and living expenses. Meanwhile, on October 22, 1993, the Plaintiff guaranteed a loan of KRW 11,000,000 obtained by Nonparty 2 from the Chuncheon Branch of Housing Bank, and thereafter, at the request of relatives or persons who had previously guaranteed the Plaintiff's debts, provided loan guarantees on five occasions; as those persons failed to repay their debts, the Plaintiff came to bear debts totaling KRW 163,508,674, combining the above loan obligations and guarantee obligations. However, as of July 1997, when disciplinary proceedings were initiated, the Plaintiff had repaid only KRW 20,805,732 of that amount and had failed to repay the remaining KRW 142,702,942, such that 15 creditors had provisionally attached the Plaintiff's salary, and 2 creditors had sent demand letters urging repayment of the debts. Furthermore, four fellow police officers who had provided guarantees or obtained loans on the Plaintiff's behalf and lent him the money at the time the Plaintiff obtained the above loans did so without knowing that the Plaintiff's debts were already excessive as described above; among them, Police Officer Nonparty 3 had half of his salary (KRW 700,000) provisionally attached from July 1997, and Police Officers Nonparty 4, Nonparty 5, and Nonparty 6 were also being pressed by creditors to repay debts. It was also found that, after the dismissal disposition in this case, the Plaintiff was found to have additionally incurred debts totaling KRW 42,773,761, including KRW 32,515,680 owed to Korea Fidelity & Surety Co., Ltd., KRW 4,258,081 owed to the Huping-dong Branch of the National Agricultural Cooperative Federation, and KRW 6,000,000 owed to Nonparty 7. The Plaintiff currently owns one apartment worth approximately KRW 70,000,000, which has been provisionally attached due to the above debts. The Plaintiff was appointed as a police officer on February 15, 1975, and during his 22 years of service, received two citations from the Commissioner General of the National Police Agency, five citations from the Commissioner of the Gangwon-do Provincial Police Agency, and three citations from police station chiefs, and had never been subject to criminal punishment or disciplinary action. Upon examining the record, the above fact-finding by the court below is acceptable, and it cannot be said that there was an illegality of mistaking facts in violation of the rules of evidence. This ground of appeal is without merit.
2. As to the argument of misapprehension of the legal principles concerning the discretionary authority in disciplinary action
Where a public official who is the subject of disciplinary action has grounds for discipline and a disciplinary measure is to be taken, the determination of what measure to take is left to the discretion of the disciplinary authority; only where the disciplinary measure taken by the disciplinary authority in the exercise of such discretion is found to be so clearly unreasonable under generally accepted social norms as to constitute a deviation from or abuse of the discretion entrusted to the disciplinary authority may such measure be deemed unlawful. In order for a disciplinary measure to be found unlawful for deviating from the scope of discretion by being so clearly unreasonable under generally accepted social norms, it must be the case that, upon comprehensive consideration of various factors according to the specific circumstances of the case—such as the nature of the duties performed, the content and nature of the misconduct that constituted the grounds for discipline, the administrative purpose sought to be achieved by the discipline, and the standards for determining the severity of discipline—the content of the discipline can be objectively and clearly recognized as unreasonable (see Supreme Court Decision 98Du1475 dated December 8, 1998; Supreme Court Decision 97Nu14637 dated November 25, 1997, etc.).
According to the reasoning of the judgment below, the court below determined as follows: taking into comprehensive consideration all the circumstances, including the fact that the Plaintiff incurred the above excessive debts without any plan for repayment; that the Plaintiff spent a considerable portion of the loan proceeds indiscriminately on expenses such as his children's overseas language study expenses and other educational and living expenses; that the Plaintiff had fellow police officers provide loan guarantees or obtain loans and lend him the proceeds without informing them of his excessive debt burden, thereby causing them harm such as having their salaries attached; that the Plaintiff has no capacity to repay the above debts; and that, in light of the public nature of the position of a police officer, it is difficult to expect normal performance of duties from a person bearing such excessive debts, among other circumstances—even taking into account, as argued by the Plaintiff, the various favorable circumstances such as the fact that the Plaintiff served as a police officer for 22 years, received citations on several occasions, served without ever being subject to criminal punishment or disciplinary action, and repaid part of the debts, it cannot be said that the dismissal disposition in this case, in light of the nature of the Plaintiff's duties, the content and nature of the misconduct, and the purpose of the discipline, is objectively and clearly unreasonable so as to be so clearly lacking in reasonableness under generally accepted social norms as to constitute a deviation from or abuse of the disciplinary authority's discretion. Upon examination of the record, the above determination by the court below is justified, and it cannot be said that there was an illegality of misapprehension of the legal principles concerning the scope of discretionary authority in disciplinary action for violation of the duty to maintain dignity under the State Public Officials Act (국가공무원법). This ground of appeal is also without merit.
3. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Lee Im-su (Presiding Justice), Park Jun-seo (Justice in charge), Shin Seong-taek, Seo Seong