[퇴직급여부지급처분취소][공1996.9.1.(17),2519]
[1] Whether a person who is disqualified for appointment may claim retirement benefits, etc. under the Public Officials Pension Act where he/she actually worked as a public official (negative)
[2] In a case where a new appointment is null and void as a matter of course, whether the act of promotion is void as a matter of course (affirmative)
[1] Retirement benefits, etc. under the Public Officials Pension Act are paid in cases where a person retires while acquiring the status as a lawful public official and performing his/her duties. If there was a reason for disqualification for appointment as a public official at the time of appointment, such appointment shall be deemed null and void a year, even if he/she was disqualified due to the negligence of the State, and since he/she cannot obtain his/her status as a public official or establish a labor relationship due to an act of appointment null and void a year, even if a disqualified person is actually performing his/her duties as a public official, he/she shall not claim retirement benefits, etc. under the Public Officials Pension Act, if he/she did not obtain his/her status as a legitimate public official, and even if he/she continued to perform his/her duties after
[2] Promotion of a public official is based on the premise that the public official acquires the status of a public official by being newly appointed, and it is not a new appointment of a public official. Thus, if a new appointment of a public official is null and void a year, and the person did not have a legitimate status as a public official, the promotion of such person is also null and void a year.
[1] Article 46 of the Public Officials Pension Act / [2] Articles 28 and 40 of the State Public Officials Act
[1] Supreme Court Decision 86Nu459 delivered on April 14, 1987 (Gong1987, 826), Supreme Court Decision 95Nu6496 delivered on September 15, 1995 (Gong1995Ha, 3431), Supreme Court Decision 95Nu9617 delivered on February 27, 1996 (Gong196Sang, 1141)
Plaintiff (Law Firm Han, Attorneys Jeong Jin-sung et al., Counsel for plaintiff-appellant)
Public Official Pension Corporation
Seoul High Court Decision 95Gu2903 delivered on January 24, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
On the first ground for appeal
Retirement benefits, etc. under the Public Officials Pension Act are paid in cases where a person retires while acquiring a status as a lawful public official and serving as a public official. If there exists any ground for disqualification for appointment as a public official at the time of appointment, such appointment shall be deemed null and void a year, even though it was not revealed or impossible to establish a labor relationship due to an act of appointment null and void, and even if a disqualified person has actually served as a public official, he cannot claim retirement benefits, etc. under the Public Officials Pension Act for a person who has failed to obtain his status as a legitimate public official, and even if he continued to serve as a public official after the ground for disqualification for appointment ceases to exist, it shall not be deemed to be a party member's case (see, e.g., Supreme Court Decisions 86Nu459, Apr. 14, 1987; 95Nu9617, Feb. 27, 1996).
The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit.
On the second ground for appeal
The act of promotion to a public official is based on the premise that the public official acquires the status of the public official by being newly appointed, and it is not a new appointment to a new public official. If a new appointment to a certain person is void a year, and the person did not have a legitimate status as a public official, the act of promotion to such person is also null and void a year.
In the same purport, so long as this case's appointment against the plaintiff is null and void as a matter of course, the decision of the court below which held that the plaintiff's qualification as assistant principal, and the disposition of assistant principal, promotion, and school principal's promotion as stated in the judgment of the court below is also null and void as a matter of course, is just, and there is no error in the misapprehension of legal principles as in the theory of lawsuit.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jong-sik (Presiding Justice)