[퇴직급여청구반려처분취소][공1996.4.15.(8),1141]
[1] Whether a disqualified person may claim retirement benefits, etc. under the Public Officials Pension Act in cases where he/she has been appointed as a public official and actually worked (negative)
[2] The case holding that even if he continued to serve after the grounds for disqualification as a public official had ceased to exist, it cannot be deemed that an implied appointment disposition or invalidation was ratified or a new appointment was made
[1] Retirement benefits, etc. under the Public Officials Pension Act are paid in cases where a person retires while acquiring the status as a legitimate public official and performing his/her duties, and as such, a person disqualified for appointment cannot obtain his/her status as a public official due to an act of appointing a disqualified person whose status as a legitimate public official, even though he/she was appointed and actually serving as a public official, he/she cannot claim retirement benefits, etc. under the Public Officials Pension Act if he/she failed to obtain his/her status as a legitimate public official, and even if he/she continued to serve after the grounds for disqualification cease to exist, it cannot
[2] The case holding that even if a sentence of 70 days after a police officer was appointed as a police officer was invalidated due to amnesty, etc. and served as a public official for 30 years and 30 months after the termination of the grounds for disqualification, it cannot be deemed that the appointment authority made a new appointment disposition impliedly by itself, and even if it was revealed that he was disqualified at the time of appointment, it cannot be deemed that the appointment authority confirmed that the appointment authority would not be retired ipso facto due to the promulgation of general amnesty, etc., and it cannot be deemed that the appointment authority confirmed that the appointment authority was valid after the qualification as a public official due to the implementation of general amnesty, or that it cannot be deemed that the appointment authority was a new appointment authority confirmed that the appointment was void or that there was a new disposition to appoint as a public official for the future, on the ground that he was not a police officer under the provisions of the Police Officers Act and the Decree on the Appointment of Police Officials, which was the Superintendent at the time of 1982.
[1] Article 46 of the Public Officials Pension Act, Article 28(1) of the Labor Standards Act / [2] Articles 7(2) and 21 of the Police Officers 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 95Nu5905 delivered on October 12, 1995 (Gong1995Ha, 3800) / [2] Supreme Court Decision 95Nu9914 delivered on November 21, 1995
Plaintiff (Attorney Lee Jae-sung, Counsel for plaintiff-appellant)
Public Official Pension Corporation
Seoul High Court Decision 94Gu32940 delivered on June 1, 1995
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. Retirement benefits, etc. under the Public Officials Pension Act are paid in cases where a person retires while acquiring the status as a legitimate public official and performing his/her duties. Thus, even if a disqualified person was appointed and actually serving as a public official, he/she cannot claim retirement benefits, etc. under the Public Officials Pension Act if he/she did not obtain the status as a legitimate public official, and even if he/she continued to serve after the grounds for disqualification cease to exist, he/she cannot be deemed as having recovered his/her status as a legitimate public official and claiming retirement benefits, etc. (see, e.g., Supreme Court Decisions 86Nu459, Apr. 14, 1987; 95Nu5905, Oct. 12, 195). Such interpretation does not violate social justice or seriously violate the principle of equity.
In the same purport, the court below is just in rejecting the plaintiff's assertion that if the plaintiff, who is disqualified for appointment, received monthly salary for 30 years and accumulated part of it as a contribution and retired at the retirement, the claim for the lump-sum retirement pension may be filed, and there is no error in the misapprehension
It is not necessary to change the above party members who point out the theory of lawsuit as of April 14, 1987 as of the present Supreme Court Decision 86Nu459 delivered on April 14, 1987. The argument is without merit.
2. Even if the Plaintiff’s 70 days after the Plaintiff’s appointment as police officer was invalidated due to amnesty, etc. and served as a public official for 30 years and 30 months after the Plaintiff’s appointment became void, it cannot be deemed that the appointment authority made a new appointment disposition implicitly against the Plaintiff (see, e.g., Supreme Court Decisions 95Nu5905, Oct. 12, 1995; 95Nu914, Nov. 21, 1995; 95Nu914, Nov. 21, 1995). In addition, even if it was revealed that the Plaintiff was disqualified at the time of appointment, due to the fear of general amnesty, etc., the Plaintiff’s disqualification cannot be automatically retired until the time of retirement, and thus, the Plaintiff’s disqualification authority’s new appointment order or new appointment order cannot be seen as valid after the Plaintiff’s appointment authority’s completion of qualification as public official of general amnesty, and it cannot be viewed that the appointment authority’s new appointment authority or new appointment order was void at the time of the Plaintiff’s appointment authority.
3. 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 Lee Jae-soo (Presiding Justice)