[Plaintiff, Appellee]
[Defendant, Appellant] Mayor of Seoul Metropolitan City, Litigation Counsel: Attorney Min Kyung-taek
[Judgment Below]
Seoul High Court Decision 82Gu451, dated February 10, 1983
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
The court below found the following facts: that the Defendant issued a dismissal disposition against the Plaintiff on December 17, 1981; and that the grounds for the disciplinary action giving rise to the said dismissal disposition were as follows: the Plaintiff, while working as a local administrative clerk (Grade 9, 지방행정서기보) in charge of accounting assistance duties at the Jeongneung 1-dong office, Seongbuk-gu, Seoul Metropolitan City, on October 8, 1981, upon the Seongbuk-gu Office allocating a total of KRW 2,846,000 (advance funds of KRW 1,371,000 and contracted expenses of KRW 1,475,000) to the said Jeongneung 1-dong as its operating expenses for the fourth quarter of 1984 [sic], withdrew the entirety of the said money from the Hyehwa-dong Branch of Seoul Commercial Bank on the same day and temporarily misappropriated it, and thereafter redeposited KRW 1,371,000 of that amount on October 17 of the same year and the remaining KRW 1,475,000 on November 13 of the same year, each through the Bugak Branch of Kookmin Bank.
The court below further found as follows: that at the time, the Plaintiff had a debt of KRW 3,000,000 borrowed to prepare the move-in money for the house in which he resided; that due to his difficult financial circumstances he was unable to pay the interest on the borrowed money on time and was subjected to severe demands for repayment from his creditors; that on October 8, 1981, after withdrawing the entire amount of the said operating expenses, he arbitrarily used KRW 500,000 thereof to pay the said interest, thereby misappropriating the funds; and that he voluntarily redeposited KRW 1,371,000 of the withdrawn amount on October 17 of the same year and the remaining KRW 1,475,000 on November 13 of the same year. The court below also found that the Plaintiff, having worked as a local civil petition assistant (지방민원보조원) at the Jongam 2-dong office, Seongbuk-gu, Seoul, from December 12, 1973, was appointed as a local administrative clerk (지방행정서기보) on June 20, 1979, and worked as an accounting assistance official at the same district's Jeongneung 1-dong office from July 1, 1980 until his dismissal in this case, and that on May 3, 1978 he had even received a commendation as an outstanding public official from the Defendant for his contribution to the promotion of administrative reform (서정쇄신).
On the basis of these findings, the court below held that even though the Plaintiff had committed the wrongdoing of misappropriating a portion of public funds, considering all the circumstances revealed in the pleadings of this case — including the fact that he had voluntarily redeposited the entire amount thereafter such that no damage resulted therefrom, the motive that led to his misconduct, and the fact that he had been commended as an outstanding public official — the Defendant's choice of dismissal, which deprives him of his status as a public official, as the disciplinary measure for the Plaintiff's said misconduct was, in light of social norms and the principle of proportionality, remarkably unreasonable and constituted an unlawful act exceeding the bounds of disciplinary discretion.
However, disciplinary action against a public official is a sanction imposed, where the public official concerned has violated his official duties or committed other misconduct, in order to maintain order in the public official relationship, rectify discipline, and ensure that the public official fulfills his duties. Accordingly, where grounds for discipline exist with respect to a public official subject to discipline, the determination of what disposition to impose is a matter entrusted to the discretion of the disciplinary authority. Only where the disciplinary disposition made by the disciplinary authority in the exercise of such disciplinary power is found to have remarkably lost its reasonableness in light of common social understanding, such that the discretion entrusted to the disciplinary authority is deemed to have been abused, may such disposition be held unlawful.
As found by the court below, if the Plaintiff arbitrarily spent the operating expenses of KRW 2,846,000 allocated to Jeongneung 1-dong, this constitutes an act damaging the dignity befitting a local public official. Even taking into account, as set out in the judgment below, the fact that the Plaintiff misappropriated the said operating expenses due to financial difficulties but voluntarily redeposited the funds, as well as the Plaintiff's work history and merits as stated by the court below, it cannot be said that the Defendant's disposition in this case remarkably lost its reasonableness in light of common social understanding, and, absent other circumstances warranting such a finding, it cannot be said that the Defendant's disposition in this case exceeded the bounds of, or constituted an abuse of, its discretionary power.
The judgment of the court below, which held, on the reasoning set forth above alone, that the Defendant's disciplinary disposition in this case was unlawful as exceeding the bounds of discretionary power, committed an error of law by misapprehending the legal principles concerning the scope of discretionary power in disciplinary dispositions against public officials, or by failing to exhaust the necessary examination. The grounds of appeal are therefore well-founded.
Accordingly, the judgment below is reversed, and the case is remanded to the court below, the Seoul High Court, pursuant to the unanimous opinion of the Justices participating, and it is so ordered as stated in the Order.
Justice Jeong Tae-gyun (Presiding Justice), Yoon Il-young, Kim Deok-ju, Oh Seong-hwan