[2] The case holding that where a person who lost his status as a public official due to ipso facto retirement but actually worked as a public official retires after being appointed as an employee of the Corporation, the period of service as a public official may not be added up when calculating his retirement allowance

[2] The case holding that where a person who lost his status as a public official due to ipso facto retirement but actually worked as a public official retires after being appointed as an employee of the Corporation, the period of service as a public official may not be added to the calculation of his retirement allowance

Retirement benefits, etc. under the Public Officials Pension Act are paid in cases where a person retires while acquiring a status as a legitimate public official and serving as a public official, and if there exists any reason for disqualification for appointment as a public official at the time of appointment, such appointment shall be null and void, and even if a disqualified person is in fact serving as a public official, he shall not claim retirement benefits, etc. under the Public Officials Pension Act for a person who has failed to obtain the status as a legitimate public official, and even if a person who has lost his status as a public official for reason of ipso facto retirement has actually served as a public official, the actual period of service after his ipso facto retirement shall not be added to the period of service under the Public Officials Pension Act (see, e.g., Supreme Court Decisions 95Nu6496, Sept. 15, 1995; 2001Du205, Jul. 26, 2002).

According to the reasoning of the judgment below, while the plaintiff was appointed as a state public official belonging to the Ministry of Health and Welfare on May 20, 1969, the court below acknowledged that the plaintiff was a public official under Article 23 of the Public Officials Pension Act as a public official under the provision of Article 50 of the Public Officials Pension Act and a person who was employed by the Ministry of Health and Welfare on January 1, 1982, when the telecommunications service of the Ministry of Health and Welfare was transferred to the defendant on January 4, 1999. The plaintiff was sentenced on October 10, 1972 due to the violation of the Act on Special Cases Concerning the Control of Administrative Affairs on November 10, 1972, and the decision became final and conclusive. The defendant's remuneration provision provides that "the period of service under Article 23 of the Public Officials Pension Act shall be calculated by adding up the period of service of the relevant employee to the period of service under Article 29 of the State Public Officials Pension Act as a public official under Article 33 of the same Act."

Furthermore, the court below determined that the plaintiff's retirement allowance should be calculated by adding up the period of service of the plaintiff as a state public official even if the plaintiff is retired ipso facto, in light of the legislative intent of the Act on Special Cases concerning the Retirement Benefits, and that the plaintiff's retirement allowance should be paid after deducting the total amount of retirement allowance and compensation paid by the plaintiff from the period of service of his body. As to the plaintiff's assertion that "retirement allowance under the Public Officials Pension Act should be paid after legitimate status acquisition or labor contract formation, and even if a person who lost ipso facto status as a public official actually serves as a public official, such person cannot claim retirement allowance prescribed by the above Act, and that it can not be a ground for adding up the period of service of the plaintiff to the period of service of ipso facto public official, regardless of the plaintiff's actual reason for ipso facto retirement allowance, it cannot be viewed that the defendant's application for retirement allowance and compensation for ipso facto retirement allowance was not made within the period of service of 2 years before the plaintiff's retirement allowance was actually paid to the plaintiff.

Examining the Defendant’s remuneration provision in light of the legal principles as seen earlier, the lower court’s determination that the Plaintiff’s service period as a public official may not be added to the Defendant Corporation’s service period is acceptable, and in light of the records, the fact-finding and judgment of the lower court are justifiable. Therefore, as otherwise alleged in the ground of appeal, the lower court did not exhaust all necessary deliberations and did not err by misapprehending the rules of evidence or by misapprehending the legal principles on special Acts

Therefore, the appeal is dismissed, and the 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 Shin Shin-chul (Presiding Justice)