[Plaintiff, Appellee]
[Defendant, Appellant] Head of the Busan Regional Railroad Administration
[Court Below]
Daegu High Court Decision 96Gu1796 decided September 19, 1996
[Order]
The judgment below is reversed. The case is remanded to the Daegu High Court.
[Reasoning]
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the court below, comprehensively considering the evidence adopted in its judgment, found the following facts: The Plaintiff, as a railroad station employee affiliated with Dongdaegu Station under the Busan Regional Railroad Administration, was engaged in ticket-checking duties for Train No. 149 bound from Seoul to Busan, which arrived at the above station around 03:12 on November 12, 1995. Around 03:15 on the same day, two young men of unknown identity, unaware that non-party ○○○ and his spouse had left a large red bag—containing KRW 500,000 in cash intended as a wedding congratulatory gift for their nephew—on a chair next to the noodle shop at the station while they were eating, mistook the bag for a lost item and brought it to the Plaintiff, reporting it as lost property. The Plaintiff received the bag and placed it on his own desk in the office next to the ticket gate. After finishing the ticket-checking, he opened the bag and, upon discovering the cash inside a thick envelope located under a wedding invitation, formed the intent to embezzle the cash. Without registering the bag in the lost property ledger as required under the Railroad Lost Property Handling Guidelines, he removed only the cash envelope and hid it under a hat and documents in the lower drawer of his desk. The Plaintiff then returned to the ticket gate and continued checking tickets for another train. Around 03:20 on the same day, when the above couple, ○○○ and his spouse, realized they had lost the bag and asked the Plaintiff about its whereabouts, he merely asked them whether the bag in question was theirs and handed it over, without disclosing the whereabouts of the cash envelope even after they discovered that the cash envelope was missing from the bag and reported this to a police officer stationed at the station, and even while the drawer of his desk, among other places, was being searched until the cash envelope was found. Thereafter, the Plaintiff was seized by the collar and verbally abused, slapped in the face, and severely criticized by many passengers in front of numerous onlookers within the station premises; in addition, the Plaintiff's conduct was reported in some central and local newspapers, and he was even subjected to criminal investigation after being booked. The court below further found that the Defendant issued a suspension-from-position order against the Plaintiff on the 13th of the same month, then requested a disciplinary resolution from the Railroad Administration's General Disciplinary Committee, which Committee resolved that the Plaintiff's above conduct constituted a violation of Article 56 (Duty of Good Faith), Article 63 (Duty to Maintain Dignity) of the State Public Officials Act (hereinafter referred to as the "Act"), and Article 2-2 (Fulfillment of Responsibility) and Article 3 (Establishment of Work Discipline) of the Public Officials Service Regulations, thereby constituting grounds for disciplinary action under Article 78(1), Items 1 through 3 of the Act, and that although dismissal (removal, "pamyeon") would be appropriate, considering that the Plaintiff had served for more than 27 years and was due to retire due to age limit in about one year, the Committee resolved on discharge ("haeim") instead; and that, in accordance with this disciplinary resolution, the Defendant issued the instant disposition discharging the Plaintiff on the 30th of the same month.
Based on these facts, in determining the legality of the instant disposition, the court below further found that the Plaintiff, since being appointed as a railroad employee on April 12, 1968, had served faithfully for approximately 27 years and 7 months until the above embezzlement incident, had received a commendation from the Minister of Transportation on December 31, 1987 for contributing to the development of transportation services as a model public official, and had received a commendation from the Head of the Railroad Administration on September 18, 1990 for having contributed to the development of the railroad through long-term service of 20 years or more; and that apart from the above embezzlement incident, the Plaintiff had never been subject to any criminal punishment or disciplinary action. The court below also found that the Plaintiff deeply repented the above embezzlement incident, which was committed only about one year before his scheduled retirement at the time of the instant disposition, and received a disposition of suspension of indictment, and that the victim also hoped for leniency toward the Plaintiff. Taking into account these circumstances—namely, that the Plaintiff committed the offense impulsively out of a momentary material desire, that the amount of damage was relatively small, and that the victim recovered the full amount of the damaged property immediately after the offense, as well as the Plaintiff's ordinary conduct, work performance, meritorious service, and degree of repentance—the court below determined that the Defendant's discharge of the Plaintiff, a disciplinary measure tantamount to dismissal, constituted an unlawful disposition that exceeded the bounds of discretion in determining the disciplinary measure.
2. However, where a public official subject to discipline has grounds for disciplinary action, the determination of what disposition to impose is a matter left to the discretion of the disciplinary authority; only where the disciplinary disposition imposed by the disciplinary authority in the exercise of such discretion is deemed to have manifestly lost reasonableness in light of social norms, thereby constituting an abuse of the discretion entrusted to the disciplinary authority, can such disposition be deemed unlawful (see Supreme Court Decision 83Nu564 decided December 27, 1983; Supreme Court Decision 94Nu4622 decided June 10, 1994).
Now, Article 56 of the Act provides that all public officials shall comply with laws and regulations and perform their duties faithfully; Article 63 of the Act provides that public officials shall not engage in conduct that damages their dignity, whether in the course of their duties or otherwise; and Article 78(1) of the Act sets forth as grounds for disciplinary action against public officials: in Item 1, violation of this Act or orders issued thereunder; in Item 2, violation of official duties or neglect of duties; and in Item 3, conduct that damages one's honor or dignity, whether in the course of official duties or otherwise. Articles 2-2 and 3 of the Public Officials Service Regulations impose obligations on public officials similar to those under Articles 56 and 63 of the Act. The Railroad Lost Property Handling Guidelines (Railroad Administration Directive No. 295, dated November 23, 1985) provide that lost property found at a station shall be registered in the lost property inventory ledger (lost property ledger) and then returned to its owner through prescribed procedures. According to the facts found by the court below, the Plaintiff's conduct in keeping an item reported by a passenger as lost property found within the station premises and embezzling part of its contents not only violated the Railroad Lost Property Handling Guidelines but also constituted the criminal offense of embezzlement, and, having been reported in newspapers, caused social controversy. Such misconduct must be deemed to constitute a serious violation of Articles 56 and 63 of the Act—which require public officials to comply with laws and regulations and perform their duties faithfully, and prohibit conduct damaging their dignity whether in the course of their duties or otherwise—thereby considerably undermining the prestige of the Railroad Administration, and must be regarded as a case of serious misconduct involving intentional wrongdoing. In light of the degree of this misconduct, even taking into account all circumstances appearing in the record—such as the fact that the Plaintiff served as a railroad public official for a long period and received several commendations, that apart from the above embezzlement incident he had never been subject to any criminal punishment or disciplinary action, that at the time of the instant disposition the above embezzlement incident was committed only about one year before his retirement due to age limit, that he deeply repented and received a disposition of suspension of indictment, and that the victim recovered the full amount of the damaged property and hoped for leniency toward the Plaintiff—it cannot be concluded that the Defendant's instant disposition was excessively harsh so as to constitute an unlawful disposition exceeding the bounds of discretion.
The court below's determination that the discharge disposition, imposed as a disciplinary measure for such criminal conduct by a railroad public official, exceeded the bounds of discretion and was unlawful, based solely on the circumstances set forth in its judgment, constitutes an error in the legal principles concerning the limits of discretion in disciplinary dispositions—an error that opens the way for a public official who forgot the duty of faithful service and committed a criminal act to continue serving in public office—and such error affected the judgment. The portion of the grounds of appeal pointing out this error is well-founded.
3. Accordingly, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered as stated in the Order, with the unanimous consent of the participating Justices.
Justice Park Jun-seo (Presiding Justice), Park Man-ho, Kim Hyeong-seon, Lee Yong-hun (Justice in Charge)