[Order]
[Plaintiff, Appellee]
[Defendant, Appellant] Superintendent of Education of Busan Metropolitan City (Litigation representative: Attorney Lee Gyu-hak)
[Lower Court Judgment]
Busan High Court Decision 94Gu2190 rendered on November 15, 1995
[Order]
The judgment of the court below is reversed, and the case is remanded to the Busan High Court.
[Reasoning]
The grounds of appeal are examined.
1. Summary of the Judgment Below
According to the reasoning of the judgment below, the lower court, based on the evidence it relied upon, found as follows: The Plaintiff was born on March 16, 1958, married Non-party 1 on June 17, 1982, and is a married person with two sons; Non-party 2 was born on May 27, 1961, married Non-party 3 on April 3, 1983, and is a married person with one daughter; both began working together as teachers at Gupo Girls' Commercial High School from March 1, 1990. From around May 1990, the Plaintiff was observed riding in Non-party 2's private car when leaving work, occasionally resting together in the health room, and frequently meeting in the computer room, and Vice-Principal Non-party Kim Chang-dong, concerned that the relationship between the two would become close enough to cause controversy, warned the Plaintiff twice to refrain from conduct that could give rise to suspicion. The Plaintiff's wife, the above Non-party 1, suspecting the relationship between the Plaintiff and the above Non-party 2, followed the Plaintiff and around July 10, 1990, witnessed the Plaintiff leaving the apartment where the above Non-party 2 resided and riding together in Non-party 2's car. Believing that the two were having an affair, the above Non-party 1, having learned that Non-party 3, the husband of Non-party 2, was then studying in Germany, sought out his friend Non-party 4 in Gyeongju around March 1991 and told him that the two were having an affair. Non-party 3, having heard this from his brother residing in Seoul, asked his brother to follow Non-party 2 until he returned to Korea. Accordingly, Non-party 3's brother and cousin, among others, followed Non-party 2 for about six months, and around July 1991 witnessed the following scene: the Plaintiff and a school nurse teacher rode together in Non-party 2's car when leaving work, the two got off in front of Dongnae Subway Station, the nurse teacher went home, while the Plaintiff, after waiting across the street, got back into Non-party 2's car, and the two went together to a street stall in front of Pusan National University and drank alcohol together. After Non-party 3 returned from Germany in early October 1991, he assaulted Non-party 2 and pressed her to confess the affair that had been ongoing. Under this pressure, Non-party 2 told Non-party 3 that she had had sexual relations with the Plaintiff several times, became pregnant, and had an abortion, and that the Plaintiff, feeling guilty, had undergone a vasectomy. Around the 10th of that month, at the Plaintiff's home, in the presence of about ten members of the three families—the Plaintiff, the above Non-party 1, and Non-party 3—Non-party 3 relayed what Non-party 2 had said, stating that she had confessed to the affair with the Plaintiff, and as a result everyone came to believe that the Plaintiff's affair was true. However, it was later revealed that the Plaintiff's wife, the above Non-party 1, had already undergone permanent sterilization surgery on November 15, 1986; that the Plaintiff underwent a vasectomy on May 13, 1991 without consulting the above Non-party 1; and that although Non-party 2 underwent an abortion on November 11, 1991, this was not, contrary to what Non-party 2 had told Non-party 3, due to sexual relations with the Plaintiff, but rather resulted from her having become pregnant through sexual relations with Non-party 3 around October 14, 1991, and thereafter, due to discord with Non-party 3, taking antibiotics and other medication. Thereafter, Non-party 2 and Non-party 3, after ongoing discord, divorced by mutual agreement on March 4, 1992. Around April 1992, the Plaintiff filed a divorce suit against the above Non-party 1 in the Eastern Branch of the Busan District Court, alleging infidelity and unjust treatment of his mother-in-law, and in response, the above Non-party 1 filed a counterclaim against the Plaintiff for divorce, alimony, and division of property on the ground of infidelity. As a result, on April 14, 1993, a judgment was rendered dismissing the Plaintiff's principal claim and partially granting Non-party 1's counterclaim for divorce, alimony, and division of property; although the Plaintiff appealed, the judgment was affirmed as is through the Busan High Court and the Supreme Court, and thus the Plaintiff and the above Non-party 1 were divorced by judicial decree as well. The Plaintiff was transferred from Gupo Girls' Commercial High School to Busan Nam Girls' Commercial High School on March 1, 1992, and worked there as a commerce teacher. When the above Non-party 1 submitted a petition to the Superintendent of Education of Busan Metropolitan City on June 22, 1993 demanding punishment of the Plaintiff, this became the impetus for the commencement of disciplinary proceedings against the Plaintiff and the above Non-party 2. As a result, the Defendant, on October 1, 1993, dismissed both individuals following a disciplinary resolution by the General Disciplinary Committee for Educational Public Officials of the Busan Metropolitan City Office of Education. Both individuals objected and requested reexamination by the Teachers' Disciplinary Reexamination Committee, but on January 25, 1994, the Plaintiff's request was denied, while Non-party 2's request was partially granted and her disciplinary action was changed to a three-month suspension. The lower court also found that the Plaintiff, born into a difficult family, graduated from a commercial high school, worked for a time, then entered the College of Education at Pusan National University, graduated with excellent grades, was appointed as a teacher around March 1984, and thereafter faithfully performed his duties, attending the graduate school of education at Pusan National University and obtaining a master's degree in education, for which he received a Superintendent's Award given to outstanding teachers around December 1989, and that he had never before been subject to disciplinary action prior to this case.
Having made these findings, the lower court held as follows: First, while there clearly exist circumstances suggesting suspicion that the Plaintiff and the above Non-party 2 had an affair, based on the series of actions taken by the two and how they appeared to others, in light of the fact that, despite the above Non-party 1 and Non-party 3's brother and others having followed and monitored the two persons' movements for a considerable period, the scene of any affair was never actually captured; the fact that the Plaintiff and the above Non-party 2 have consistently maintained, as fellow teachers, that they merely happened to meet occasionally, or met briefly in the course of the Plaintiff providing convenience such as gathering materials for Non-party 2, who was then enrolled in a master's program, and did not have an affair; and the fact that much of what Non-party 2 is alleged to have confessed to her husband Non-party 3 regarding the affair does not match the facts and thus lacks credibility—in light of these circumstances, absent other objective evidence sufficient to exclude reasonable doubt, it cannot be concluded, based merely on circumstantial evidence, that the Plaintiff and the above Non-party 2 had an affair. Therefore, the Defendant's finding, in issuing the dismissal disposition in this case, that the Plaintiff and Non-party 2 had an affair, must be viewed as a mistaken finding of the disciplinary misconduct. However, even setting aside the matter of the affair, as found above, the Plaintiff's conduct as a teacher was so reckless as to invite suspicion of an affair with Non-party 2, thereby causing the breakdown of two families and further causing controversy within the school community, which constitutes a violation of the duty to maintain dignity under the National Public Officials Act (국가공무원법). Nevertheless, in light of various circumstances—including the fact that the Plaintiff, while serving as an educational public official, had performed his duties faithfully without any disciplinary action and had even received a commendation, and that Non-party 2, who engaged in the dignity-damaging conduct together with the Plaintiff, subsequently had her disposition changed to a three-month suspension upon reexamination by the Teachers' Disciplinary Reexamination Committee and is currently working as a teacher—the lower court concluded that the remaining disciplinary misconduct, excluding the matter of the affair, cannot be deemed to constitute grounds for a dismissal disposition depriving the Plaintiff of his status as a public official. On this basis, the lower court determined that the Defendant's dismissal disposition against the Plaintiff in this case was unlawful.
2. Determination on the Grounds of Appeal
However, in order for a disciplinary action against a public official to be deemed unlawful as exceeding the bounds of discretion on the ground that it is excessively severe, it must be a case in which, in light of the content and nature of the misconduct constituting the grounds for discipline and the administrative purpose sought to be achieved by the discipline, the content of the discipline can be objectively recognized as clearly unjust (see Supreme Court Decision 83Nu76 rendered on June 12, 1984; Supreme Court Decision 95Nu9938 rendered on January 26, 1996, among others). Even according to the facts found by the lower court, it can be seen that the Plaintiff associated closely with the above Non-party 2, a fellow teacher and a married person, to the extent of causing controversy at the school; that he engaged in conduct giving rise to suspicion of an affair between the two; that this conduct ultimately led to the breakdown of Non-party 2's family; and that the Plaintiff, having continued to have discord with his wife, the above Non-party 1, over this matter, filed a divorce suit against her, but the claim was not accepted by the court, and rather, the counterclaim filed by the above Non-party 1 (for divorce on the ground of infidelity, alimony, and division of property) was accepted, resulting in a divorce judgment. In light of the teacher's duty to always strive to improve his character and qualities so as to serve as a model (Article 74 of the Education Act (교육법)), the Plaintiff's conduct as described above constitutes damage to the dignity befitting a teacher, and thus constitutes a violation of the duty to maintain dignity under Article 63 of the National Public Officials Act (국가공무원법). Therefore, even taking into account circumstances such as the Plaintiff's service record as set forth by the lower court, it cannot be said that the dismissal disposition against the Plaintiff in this case, in light of the degree of the Plaintiff's misconduct, exceeded the bounds of discretion or constituted an abuse thereof and was thus unlawful. Accordingly, the judgment below, which took a different view and revoked the Defendant's dismissal disposition in this case on the ground that it exceeded the bounds of discretion or constituted an abuse thereof, misapprehended the legal principles regarding the scope of disciplinary discretion, and this error affected the outcome of the judgment. The ground of appeal pointing this out is well-founded.
3. Therefore, 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 participating Justices, as set forth in the Order.
Justice Park Man-ho (Presiding Justice), Park Jun-seo, Kim Hyeong-seon (Justice in charge), Lee Yong-hun