[면직처분취소][공1977.11.1.(571),10316]
Whether a ipso facto measure is an administrative disposition in cases where a position is not assigned after the dismissal from the position, but is deferred to the position.
In cases where a person who was released from his/her position has not been assigned to his/her position for more than six months, this ipso facto retirement is merely an effect on the fact that he/she continues to exist for a certain period of time in which he/she was released from his/her position, and
Article 73-2 (4) of the State Public Officials Act
Supreme Court Decision 76Nu116 Delivered on December 28, 1976
Plaintiff (Attorney Park Jae-il, Counsel for plaintiff-appellant)
The chairperson of the General Affairs Review Committee
Seoul High Court Decision 75Gu169 delivered on May 26, 1976
The judgment of the court below is reversed.
The lawsuit of this case shall be dismissed. The costs of the lawsuit by the trial court and the court below shall be borne by the plaintiff.
Article 73-2 (4) of the State Public Officials Act provides that "If a person who was released from his position pursuant to the provisions of paragraph (1) 2 and 5 is not assigned to his position even after six months have elapsed, he shall be automatically dismissed from his position." This ipso facto retirement is merely an effect on the fact that the status of the removal from position remains in force for a certain period of time if the status of the removal from position remains in force for a certain period of time, and thus, if the removal from position becomes null and void or cancelled, it shall not be deemed that the removal from position did not have an effect on his ipso facto retirement in addition to the removal from position (see this case, e.g., Supreme Court Decision 76Nu116, Dec. 28, 1976).
Therefore, the judgment of the court below is reversed, since the lawsuit of this case against the plaintiff as of March 10, 1975 against the President and against the plaintiff as to the cancellation of his ipso facto retirement (the purport that the plaintiff retired ipso facto from office as of February 26, 1975) under Article 73-2 (4) of the State Public Officials Act is unlawful, and the judgment of the court below which made an adjudication on the merits should have been dismissed, although the lawsuit of this case should have been dismissed, it is excessive, and the judgment of the court below which made an adjudication on the merits is an unlawful crime. However, since the case is sufficient to judge the party members, the lawsuit of this case is dismissed, and the costs of lawsuit at both the party members and the court below are assessed at the plaintiff's expense,
Justices Kim Young-chul (Presiding Justice)