[Seocho-dong Legal Story] Government Official Who Falsely Claimed Uncle's Death as Father's to Collect Condolence Money... Wins Dismissal Cancellation Lawsuit

Court Cancels Dismissal and Triple Disciplinary Fine Imposition
Considers Return of 18 Million Won out of 24.79 Million Won and Disadvantages from Dismissal

Seoul Administrative Court, Yangjae-dong, Seoul. / Photo by Seoul Administrative Court

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] [Obituary] Kim Mo, Junior Administrative Officer, father passed away. Age at death 80. Funeral hall at Hospital A, Buyeo, Chungnam. Contact of chief mourner 010-XXX-XXXX. For condolences, please send to OO Bank XXX-XXXX-XXXX.

On January 28, 2021, a notice like the above was posted on the internal intranet Saeol Administrative System of Songpa-gu, Seoul.

At that time, Mr. Kim, aged 57, was appointed as a local government official (Grade 10) in February 1992, worked at various locations, served in Songpa-gu from January 2017 to June 30, 2020, and from October 5, 2020, was working as a Local Administrative Operations Junior Officer (Grade 6 equivalent) at a resident center in Songpa-gu.

On the morning of January 28, 2021, Mr. Kim informed the administrative chief of the community service center where he worked that his father had passed away at the age of 80, sending the funeral hall location, his contact number, and bank account number via KakaoTalk message. The administrative chief then posted this on the internal computer network.

Mr. Kim also sent KakaoTalk messages about his father's death to two bankbook holders related to his office, the head of the Saemaeul Women's Association, the chairman, secretary, and advisor of the Residents' Autonomy Committee, and informed former Songpa-gu employees and local residents where he had worked, receiving condolence money.

According to reports at the time, Mr. Kim sent a text message titled "Notice of Condolences" stating "Due to COVID-19, the funeral will be a quiet family ceremony," and included his bank account number "for those who wish to express their condolences."

Afterwards, Mr. Kim collected funeral supplies such as condolence banners from Songpa-gu Office, visited the community service center where he worked again to meet the community chief and administrative chief, then went down to the funeral hall at Hospital A in Buyeo, Chungnam, to receive mourners.

Although the funeral hall was far from Seoul, several former colleagues who confirmed the obituary through the notice, as well as the community chief and administrative chief, visited the funeral hall to comfort Mr. Kim.

The notice board installed at the funeral hall listed Mr. Kim, his younger brother, and the deceased's daughter as chief mourners; Mr. Kim's spouse as daughter-in-law; and Mr. Kim's children as grandchildren. Anyone could clearly see that it was Mr. Kim's father who had passed away.

Meanwhile, those who could not visit the funeral hall sent condolence money to Mr. Kim to express their sympathies.

The total condolence money Mr. Kim received was 24.79 million KRW, and he bore all funeral expenses.

The problem arose after the funeral when Mr. Kim sent KakaoTalk messages to former and current colleagues who did not visit or send condolence money, stating that he had lost his father.

One employee offended by Mr. Kim's messages posted a critical comment about Mr. Kim on the internal computer network, which included a remark saying, "I understand Mr. Kim's mother already passed away in 2010, so it is strange that the deceased's spouse was present at the funeral hall."

There were also rumors among Songpa-gu employees that Mr. Kim's father had died long ago.

The Songpa-gu Audit Office received several reports, including suspicions about Mr. Kim not applying for special leave for family events despite his father's death.

When Mr. Kim first asked the administrative chief to post the obituary notice, he said he would not apply for the five-day special leave granted for bereavement but would use substitute leave for snow removal duty. A few days later, he told the person in charge he would use long-term service leave for household arrangements, but the person in charge told him, "Long-term service leave requires prior approval; you should apply for the special leave granted for bereavement," and changed the application from long-term service leave to special bereavement leave.

Eventually, an audit of Mr. Kim was initiated by Songpa-gu.

From February 5, 2021, the Songpa-gu Audit Office conducted an investigation on the staff of the community service center where Mr. Kim worked and on Mr. Kim himself. During the investigation, it was revealed that the deceased was not Mr. Kim's father but his uncle.

This fact was reported by several media outlets under headlines such as "Fake Father's Death."

On February 18, 2021, the Mayor of Songpa-gu requested the Seoul City Second Personnel Committee to impose severe disciplinary action on Mr. Kim, and the next day, filed a complaint against Mr. Kim for fraud at the Seoul Songpa Police Station.

Mr. Kim was eventually suspended from his position on February 22, 2021.

Meanwhile, on February 9, 2021, while the audit was ongoing, Mr. Kim was caught trying to secretly take mixed coffee from a mobile carrier agency and was criminally charged. On April 8, 2021, the Seoul Eastern District Prosecutors' Office decided to suspend prosecution, citing the relatively minor nature of the case and Mr. Kim's attempt to seek forgiveness from the victim.

The Seoul City Second Personnel Committee, which reviewed Mr. Kim's disciplinary case, decided on June 28, 2021, to dismiss Mr. Kim and impose a disciplinary surcharge three times the amount of the condolence money. On August 4 of the same year, the Mayor of Songpa-gu issued the dismissal and threefold disciplinary surcharge to Mr. Kim.

This is the most severe type of disciplinary action for public officials?dismissal?along with ordering Mr. Kim to pay 74.37 million KRW, three times the condolence money of 24.79 million KRW he received.

Article 78-2 (Disciplinary Surcharge) Paragraph 1 of the National Public Officials Act stipulates that when requesting disciplinary action against a public official, a disciplinary surcharge of up to five times the monetary or property benefits obtained by the official may be imposed and requested to the disciplinary committee.

Mr. Kim's disciplinary reasons included not only collecting condolence money through a fake obituary but also violating the public officials' code of conduct by notifying related parties of family events and receiving money, attempted theft charges, and violations of quarantine rules, among other allegations.

Mr. Kim appealed the disciplinary action to the Seoul City Local Appeal Review Committee but was rejected on December 23, 2021, and subsequently filed a lawsuit against the Mayor of Songpa-gu.

Mr. Kim argued that although his behavior was inappropriate, he returned 18 million KRW of the 24.79 million KRW condolence money, and many people, after hearing explanations about his relationship with the deceased, said they did not need to get their condolence money back, thus there were mitigating circumstances regarding the background and subsequent situation.

He also claimed that having worked as a public official for a long time and nearing retirement, the dismissal not only caused him to lose his public official status but also significantly reduced his pension benefits until death, constituting a very serious disadvantage. Therefore, he argued that the dismissal was illegal as it exceeded and abused the discretionary power of disciplinary action.

Finally, Mr. Kim argued that a significant portion of the disciplinary surcharge and condolence money was unrelated to his official duties, that he returned about 18 million KRW, and that in the related criminal case, the prosecution indicted him for fraud involving 10.43 million KRW. Since the Mayor of Songpa-gu based the threefold disciplinary surcharge on the full 24.79 million KRW condolence money he received, the calculation basis was incorrect and illegal.

The Seoul Administrative Court Administrative Division 8 (Presiding Judge Lee Jeong-hee), which heard Mr. Kim's case, accepted most of his claims and ruled in favor of the plaintiff on the 25th of last month.

The court first cited Supreme Court precedents stating, "Even if there is a disciplinary reason, whether to impose disciplinary action and what type of discipline to impose is at the discretion of the disciplinary authority. However, if the exercise of that discretion violates the purpose of granting disciplinary authority, or if an excessively severe disciplinary action is chosen that violates the principle of proportionality or an unfair disciplinary action is chosen that violates the principle of equality without reasonable grounds, such disciplinary action is illegal as it exceeds the limits of discretion."

The court continued, "Although the plaintiff has significant issues as a public official making it inappropriate to maintain his status, dismissal is the most severe disciplinary action under the National Public Officials Act. Unlike dismissal, it deprives the official of status and imposes a five-year ban on public official employment, as well as reductions in retirement benefits and allowances, so it must be carried out very cautiously."

The court stated, "Dismissal should only be imposed in exceptional cases where it is necessary to impose additional economic and status disadvantages beyond depriving the official of status. If the disciplinary purpose can be achieved by depriving the official of status alone, dismissal is not justified."

Furthermore, the court found, "The plaintiff lost his father at a young age and maintained a close relationship with the deceased uncle. The funeral notice listed the plaintiff as chief mourner, his spouse as daughter-in-law, and his children as grandchildren. The plaintiff bore the funeral expenses, indicating a closer-than-usual uncle-nephew relationship, which is a mitigating circumstance."

The court added, "Born in 1963, the plaintiff was appointed as a local government official on February 1, 1992, and served over 30 years without serious disciplinary action, nearing retirement. He generally admitted his mistakes during disciplinary and litigation processes. Considering these factors, the dismissal imposing additional economic and status disadvantages is excessively severe and violates the principle of proportionality."

Ultimately, the court ruled, "The plaintiff's claim is valid," and ordered the cancellation of the dismissal by the Mayor of Songpa-gu.

The court also judged the disciplinary surcharge to be excessive.

The court explained, "Article 69-2 Paragraph 2 of the Local Public Officials Act stipulates that before deciding on a disciplinary surcharge, if the subject has been criminally punished or fulfilled compensation responsibilities under other laws, or paid recovery or additional charges under other laws, the personnel committee must adjust the surcharge accordingly. Paragraph 3 requires the committee to reduce or adjust the surcharge if the subject later fulfills such obligations. These adjustments are mandatory, not discretionary."

The court continued, "The Seoul City Second Personnel Committee decided the disciplinary surcharge based on the full amount of condolence money received by the plaintiff without considering these factors, making the surcharge decision illegal."

Therefore, the court also ordered the cancellation of the threefold disciplinary surcharge imposed on Mr. Kim. The court ordered the losing defendant, Songpa-gu Office, to bear all litigation costs.

Meanwhile, Mr. Kim is undergoing first trial at the Seoul Eastern District Court on charges of fraud for embezzling 10.43 million KRW from 207 people through the fake obituary.

This content was produced with the assistance of AI translation services.