시국선언 교원 징계유보와 직무유기죄의 성부

Abstract

This paper deals with the case of Kim Sang-Kon, the Superintendent of the Gyeonggi Provincial Office of Education. Issue: The Ministry of Education, Science and Technology (MEST) of Korea ordered Superintendent Kim to take disciplinary actions against the members of the Korean Teachers and Education Workers Union(Jeon Gyo Jo) for anti-government statements on June 26, 2009. He didn’t obey this order and said, “I will not seek punishment through the disciplinary committee until the courts have issued a ruling over this matter.” On December 10, 2009, MEST charged him with dereliction of duty(§122, Criminal Act of Korea, KCA) for failing to carry out the orders to reprimand teachers. Could the actions and the statements of the Superintendent be construed as “deny” or “neglect” of duty in the meaning of Article 122 of KCA? Rule: Article 122 of KCA provides that: “any officials who without any good cause deny or neglect his/her duty shall be punished by imprisonment or imprisonment without labor for not more than one year, or suspension of qualification for not more than three.” The Supreme Court of Korea interprets the “deny or neglect of duty” means actively and intentionally abandoning of specific mission in executing official duties. Analysis: First, the Superintendent was not liable to discharge the specific duty to reprimand. Second, his actions and statements could not be interpreted as “deny or neglect” of duty, but just “suspension” of disciplinary actions. Third, his intent was not to “deny or neglect” his duty, but to suspend it until the judgement. Conclusion: Superintendent Kim shall not be charged, indicted or sentenced for the dereliction of duty.