[퇴직처분무효확인등][공1992.3.15.(916),925]
A. Whether the removal from position is affected by whether it is de facto assigned at the time of the disposition (negative)
B. Whether an order of personnel management automatically due to the grounds for disqualification prescribed by the Local Public Officials Act is an administrative disposition subject to administrative litigation (negative)
A. According to Article 65-2(1)3 of the Local Public Officials Act, “No position shall be assigned to a person who is prosecuted for a criminal case.” The appointing authority shall, when a public official is prosecuted for a criminal case, release the position from his/her position as a matter of course regardless of whether he/she is guilty or not in the case. The removal from position does not assign a legal position, and is not affected by the existence of a de facto position at
B. According to the provisions of Article 61 of the Local Public Officials Act, if a public official is disqualified under Article 31 of the same Act, he/she shall be automatically retired, and in such case, there is a ground for disqualification, and it does not require any separate administrative disposition to extinguish a public official relationship. Even if a personnel order was issued on his/her ipso facto retirement due to the above reason, it is merely a notification of the so-called concept that notifies the retirement, and it does not constitute administrative litigation.
(a) Article 65-2(1)3 (b) of the Local Public Officials Act; Articles 61 and 31 of the same Act; Article 2 of the Administrative Litigation Act;
A. Supreme Court Decision 87Nu60 delivered on May 26, 1987 (Gong1987,100) (Gong1987, 1100). Supreme Court Decision 79Nu65 delivered on September 30, 1980 (Gong1980, 1300) 79Nu279 delivered on January 13, 1981 (Gong1981, 13649) 81Nu263 delivered on February 8, 1983 (Gong1983, 517)
Plaintiff
Attorney Gangdong-gu Seoul Metropolitan Government Head of Gangdong-gu Office
Seoul High Court Decision 90Gu17097 delivered on February 13, 1991
The part of the judgment of the court below regarding the nullification of the retirement disposition shall be reversed and the lawsuit on this part shall be dismissed.
The plaintiff's remaining appeals are dismissed.
The total costs of litigation shall be borne by the plaintiff.
We examine the grounds of appeal.
1. According to Article 65-2 (1) 3 of the Local Public Officials Act, "no position shall be assigned to a person who is prosecuted for a criminal case." If a public official is prosecuted for a criminal case, the appointing authority should automatically cancel the position regardless of whether he/she is guilty or not (see Supreme Court Decision 87Nu60 delivered on May 26, 1987). The removal from position is not a legal position, and it is not affected by the existence of a de facto position at the time of the disposition, and the provisions of Article 73 of the Local Public Officials Act concerning disciplinary management of the above removal from position cannot be applied.
The decision of the court below that the defendant, who was prosecuted for a criminal case, is legitimate to dismiss the position of the plaintiff and that the disposition cannot be invalidated even if the plaintiff did not have a position at the time of the disposition. The decision of the court below is just, and the decision of the court below contains no errors of law such as the theory of litigation
All arguments on this issue are without merit.
2. According to the provisions of Article 61 of the Local Public Officials Act, if a public official is disqualified under Article 31 of the same Act, he/she shall be automatically retired, and in such case, he/she shall be legally automatically retired due to grounds for disqualification, and a separate administrative disposition shall not be required to extinguish a public official relationship. Even if a public official is issued ipso facto retirement due to the above reasons, even if he/she was issued ipso facto retirement due to the above reasons, it shall not be subject to administrative litigation because it is merely a notification of so-called concept informing ipso facto retirement (see Supreme Court Decisions 81Nu263 delivered on February 8, 1983; 79Nu65 delivered on September 30, 1980).
According to the records, on March 4, 1986, the defendant was sentenced to a suspended sentence of imprisonment with prison labor for six months as a crime of acceptance of bribe and punishment for a surcharge of KRW 31,000 on the ground that the judgment of conviction became final and conclusive around that time, and issued a personnel order on May 6, 1986 that the plaintiff retired ipso facto from office retroactively as of March 4, 1986 by Article 61 of the Local Public Officials Act, and on the other hand, the plaintiff filed the instant lawsuit in order to seek confirmation of invalidity of the personnel order.
Therefore, the court below erred by misapprehending the legal principles on the subject of administrative litigation and thereby affecting the conclusion of the judgment, even though the court below did not have dismissed the lawsuit on this part, on the premise that the above order of personnel management constitutes a retirement disposition subject to administrative litigation, and thus, did not err by misapprehending the legal principles on the subject of administrative litigation.
3. Therefore, the part of the judgment of the court below as to the claim for nullification of the retirement disposition shall be reversed, and it shall be decided directly by the members. The plaintiff's appeal as to the claim for nullification of removal from position shall be without merit, and all costs of the lawsuit shall be borne by the losing party and it is so decided as per Disposition by the assent of all participating
Justices Kim Yong-ju (Presiding Justice)