B. Whether a lawsuit seeking confirmation of invalidity of an administrative disposition and a lawsuit that satisfies the requirements for pre-determination is legitimate

(c) Whether a lawsuit seeking nullification or revocation of his/her ipso facto retirement is legitimate in cases of ipso facto retirement from position;

(b) In a lawsuit seeking confirmation of the invalidity of an administrative disposition, there is no need to meet the requirements of the administrative disposition.

C. A lawsuit seeking nullification or revocation of an ipso facto resignation is unlawful, since ipso facto retirement is an effect on the fact that it continues to exist for a certain period of time in the status of removal from position, and there is no separate administrative disposition of ipso facto retirement other than removal from position.

The portion arising between the Plaintiff and the Defendant’s Head of the Office of Appeal among the final appeal shall be borne by the Plaintiff, and the part arising between the Plaintiff and Defendant’s Head of the Office.

1. Determination on the grounds of appeal by the Administrator of the Korea National Railroad

Point 2,

According to the reasoning of the original judgment, the court below recognized the fact that disciplinary action was taken at the time of original decision on the same ground as the grounds for the removal from the position in question against the plaintiff based on the evidence of the present case, and held that the status of the public official remains as is. However, if the public official's status is removed after only the position is assigned, and the public official's status is deprived of his status based on the same reason as the disciplinary action, the former removal from position shall lose its validity. Thus, the above disposition of the court below is just in light of the records, and there is no error of law by misunderstanding facts against the rules of evidence or by misunderstanding legal principles such as theory of lawsuit

Point 1, 3

In a case where an administrative disposition is null and void, any person can assert the invalidation without filing a declaration of invalidation by the competent authority, and therefore, even if the administrative action did not meet the requirements prior to filing an administrative lawsuit seeking nullification confirmation, the invalid disposition shall not be deemed to be effective and conclusive, so the court below held that the disposition of removal from one's position is null and void without examining whether the action for nullification confirmation of the disposition of removal from one's position is required to be completed under such legal principles, and there is no error of law by misunderstanding the legal principles on the records of the administrative disposition, such as the theory of lawsuit, or by misunderstanding the legal principles on the validity of the administrative disposition.

2. Judgment on the Plaintiff’s grounds of appeal

According to the provisions of Article 73-2 and Article 73-4 (4) of the State Public Officials Act, where a person who was released from his position under the provisions of paragraph (1) 2 and 5 cannot be assigned to his position even after the lapse of six months, he shall be automatically retired from his position at the expiration of six months. This is merely an effect on the fact that the status of removal from position due to the removal from position continues to exist for a certain period of time, and thus, if the removal from position becomes null and void, the effect of the removal from position shall not be deemed to be effective, in addition to the removal from position (see Supreme Court Decision 77Nu181 delivered on October 11, 1977, 76Nu116 delivered on December 28, 1976).

Therefore, in the case of this recommendation, the lawsuit seeking nullification or revocation of the issuance of a ipso facto retirement (the purport that the plaintiff retired ipso facto from office as of October 7, 1976) under the provisions of Article 73-2 and Article 73-4 of the State Public Officials Act against the plaintiff on April 4, 1978 shall not be deemed to be unlawful. However, even though there seems to be little misunderstanding in the original decision on this issue, the judgment of the court below which found the non-existent disposition as an illegal lawsuit which is the object of the administrative litigation, is just, and it cannot be accepted as a matter of law due to a misapprehension of legal principles such as the theory of lawsuit.

Therefore, the final appeal is without merit, and all costs of appeal are dismissed, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Byung-soo (Presiding Justice)