[2] Legislative intent of "the system for verification of whether employment is restricted" under the main text of Article 18 (1) of the former Public Service Ethics Act

[3] In a case where Party A, who retired from a reduced position as national police officer, was employed as the guard office in charge of the duties such as “railroad crossing safety management and guard,” and submitted a written request for verification as to whether restrictions on employment was placed before employment, and a fine for negligence was imposed on the ground that Party A did not request the verification of whether the restrictions on employment was placed before employment, and the appellate court filed an appeal, but the appellate court did not wait until the enforcement date despite the promulgation of the Public Service Ethics Act amended by Act No. 16671 on December 3, 2019, the case reversing the order of the court below on the ground that Party A may be excluded from the scope of a person subject to a request for verification as to whether the restrictions on employment was placed, under the Public Service Ethics Act amended and enforced during the trial

Therefore, according to the Act on the Imposition of Administrative Fines for Violations of Public Order, the Act on the Imposition of Administrative Fines for Violations of Public Order was amended and the Act on the Imposition of Administrative Fines was amended, but if the Act was not subject to administrative fines under the Act at the time of trial, the Act shall apply to violations of public order committed at the time of the enforcement of the previous Act unless there are special provisions to apply the Act at the

[2] The legislative purpose of Article 18(1) main text of the former Public Service Ethics Act (amended by Act No. 16671, Dec. 3, 2019; hereinafter the same) is to ensure the effectiveness of the employment restriction system for retired public officials by obtaining prior judgment from the competent public service ethics committee on whether a person subject to employment screening intends to be employed by an employment-restricted institution under each subparagraph of Article 17(1) of the former Public Service Ethics Act within three years after his/her retirement, and whether a person subject to employment screening intends to be employed by the employment-restricted institution under each subparagraph of Article 17(1) of the former Public Service Ethics Act (amended by Act No. 16671, Dec. 3, 2019; hereinafter the same) at the same time, to protect the rights and interests of the person subject to employment screening by providing a legitimate passage to avoid any disadvantage that a person subject to employment screening is closely related to his/her duties, and to prevent disputes in advance.

[3] In a case where Party A, who retired from a reduced position, was employed by the guard office in charge of the duties such as “railroad crossing safety management and guard,” and submitted a written request for verification as to whether employment was restricted, on the ground that Party A did not file a request for verification as to whether the employment was restricted, and the appellate court filed an appeal but did not wait until the enforcement date of the Public Service Ethics Act amended by Act No. 1671 on December 3, 2019 (hereinafter “amended Public Service Ethics Act”), the case holding that the lower court’s determination that Party A’s retired public official under each subparagraph of Article 31(2) of the Enforcement Decree of the Public Service Ethics Act (hereinafter “amended Enforcement Decree”) was excluded from the scope of the subject of an administrative fine imposed under Article 18(1) of the former Enforcement Decree of the Public Service Ethics Act at the time of its enforcement, and that Party B’s exclusion from the scope of the subject of an administrative fine imposed under Article 18(2) of the Public Service Ethics Act at the time of its enforcement due to lack of employment restrictions by the same Act.

1. Relevant provisions and legal principles

(a) Details of the regulations on the Regulation of Violations of Public Order;

According to the Act on the Regulation of Violations of Public Order concerning the imposition of fines for negligence, in principle, the establishment of a violation of public order and the disposition of fines for negligence shall be governed by the Act at the time of the violation of public order (Article 3(1)), but when the Act is changed after the violation of public order and then the act does not constitute a violation of public order, or when the act becomes less complicated than the Act before the change of fines for negligence, the amended Act shall

Therefore, even though the Act on the Grounds for Administrative Fines was amended to impose an administrative fine on a violation of public order, if the person was not subject to an administrative fine under the law at the time of a trial, the Act at the time of a trial shall be applied unless there is a special provision to apply the Act at the time of the act to the violation of public order committed at the time of the enforcement of the previous Act (see Supreme Court Order 2016Ma1626, Apr. 7, 2017).

B. Details of the former Public Service Ethics Ordinance

According to the former Public Service Ethics Act (amended by Act No. 16671, Dec. 3, 2019; hereinafter the same) (amended by Act No. 16671, Dec. 3, 2019), a person liable for registration of property under each subparagraph of Article 3(1) shall be deemed a person subject to employment examination. In principle, a person subject to employment examination shall not be employed at an employment-restricted institution closely related to the duties of the department or institution to which he/she belonged for five years prior to his/her retirement for three years prior to his/her retirement (main sentence of Article 17(1)). Where a person subject to employment examination intends to be employed by an employment-restricted institution for three years from the date of his/her retirement, he/she shall request the competent public service ethics committee to verify whether employment is restricted pursuant to Article 17(2) and (3) through the head of the agency to which he/she belonged at the time of retirement as prescribed by Presidential Decree, etc. (main sentence of Article 18(3)).

According to Article 33-2 of the former Enforcement Decree of the Public Service Ethics Act (amended by Presidential Decree No. 30753, Jun. 2, 2020), where a person subject to employment screening intends to request confirmation as to whether he/she is restricted on employment pursuant to the main sentence of Article 18(1) of the Public Service Ethics Act, he/she shall submit a written request for confirmation as to whether he/she is restricted on employment to the head of the agency to which

The purpose of this system is to ensure the effectiveness of the employment restriction system for retired public officials by obtaining prior judgment from the competent public service ethics committee on whether a person subject to employment screening intends to be employed in an employment-restricted institution under each subparagraph of Article 17(1) of the former Public Service Ethics Act within three years after his/her retirement, and on whether the department, institution, and institution to which he/she had belonged for five years before his/her retirement and is closely related to his/her duties within three years after his/her retirement, thereby securing the effectiveness of the employment restriction system for retired public officials at the same time as securing the employment restriction system for retired public officials, and to provide a legitimate passage to avoid disadvantages that a person subject to employment screening is subject to request for dismissal or criminal punishment (Article 19 and Article 29(1) of the former Public Service Ethics Act) by providing

C. Contents of the amended Public Service Ethics Ordinance

According to Article 17(1) of the former Public Service Ethics Act, the scope of a person liable for registration of property and a person subject to employment restriction in the related field after retirement is identical. However, the Public Service Ethics Act amended by Act No. 16671, Dec. 3, 2019 (hereinafter “Revised Public Service Ethics Act”) stipulated that “public officials subject to employment screening falling under any of subparagraphs 1 through 12 of Article 3(1)” under Article 17(1) shall be deemed to be “public officials and employees of public service-related organizations, as prescribed by the National Assembly Regulations, Supreme Court Regulations, Constitutional Court Regulations, National Election Commission Regulations, National Election Commission Regulations, or public service-related organizations, taking into account the possibility of exercising unfair influence and hindering fair performance of duties, etc. to relieve the scope of a person subject to employment screening by field.” The amended Public Service Ethics Act delegated the scope of a person subject to employment review to be specified by subordinate statutes, but the amended provisions so that it can be applied from June 4, 2020 (main sentence of Article 16).

According to delegation, the Enforcement Decree of the Public Service Ethics Act (amended by Presidential Decree No. 30753, Jun. 2, 2020; hereinafter “Enforcement Decree of the Public Service Ethics Act”) newly established Article 31(1) on the scope of a person subject to employment examination, specifically lists the person subject to employment examination, such as the National Police Officer’s Superintendent, Reduction, Inspector, and Assistant Inspector (No. 8), and Article 22(2) of the Statistics Act provides that “Notwithstanding paragraph (1), a person employed as a service worker, a person engaged in agriculture, forestry, or fisheries, a person engaged in technical training, a person engaged in operating devices, machinery, or a person engaged in simple labor, who falls under any of the following subparagraphs shall be excluded from a person subject to employment examination under the main sentence of Article 17(1) of the Act, with the exception of Article 17(1) of the Act, Article 31(1)2 provides that “The proviso to Article 31(1) shall be excluded from a national police officer with the exception of a national police officer referred to paragraph (1).”

In full view of the provisions of the amended Public Service Ethics Act, where a retired public official intends to be employed in an employment-restricted institution and take charge of duties falls under any of the subparagraphs of Article 31(2) of the Enforcement Decree of the amended Public Service Ethics Act, he/she is excluded from the scope of a person subject to employment examination, and thus, is also excluded from the person subject

2. Determination as to the instant case

A. According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

(1) On December 31, 2018, the re-appellant retired from office on December 31, 2018 with the reduction of △△△△△△△△△△, and was employed on January 1, 2019, and submitted a written request for verification as to whether employment is restricted to the Government Public Service Ethics Committee on January 2, 2019.

(2) Co., Ltd. employed the Re-Appellants who passed the final decision through the “public disclosure employment” method, and the written confirmation of employment scheduled on December 18, 2018 issued to the Re-Appellants stated that “the scheduled employment scheduled date of the re-appellants is January 1, 2019; the Director of the job security service site; the expected annual salary of 26 million won; the safety management and expenses for railroad crossing; and other duties for the designation of the company.”

(3) On January 30, 2019, the Government Public Service Ethics Committee notified the re-appellant that the re-appellant violated Article 18(1) of the former Public Service Ethics Act by failing to request the re-appellant to confirm whether employment restrictions have been placed before his/her employment after his/her retirement, with the result of the examination that it is possible to work as a department or agency to which the re-appellant belonged for five years prior to his/her retirement, and that the re-appellant notified the court having jurisdiction over the judgment on the fine for negligence pursuant to Article 30(4) of the same Act of the fact that the re-appellant violated Article 18(1) of the same Act.

(4) The re-appellant filed a civil petition stating that “the imposition of a fine for negligence on life-based employment is at risk.” On June 19, 2019, the government public service ethics committee respondeded that “in the event a retired public official is employed without an employment examination, the fine for negligence is imposed on voluntary employment.” However, in relation to the employment restriction system of retired public officials, the amendment of the Public Service Ethics Act that excludes a public official from the employment examination if he/she lives after his/her retirement (including expenses, day-time employment, etc.) is known to the National Assembly that he/she is still pending in the National Assembly.”

(5) On October 8, 2019, the first instance court rendered a decision to impose an administrative fine of one million won on the Re-appellant. The lower court rendered a decision to dismiss the Re-Appellant’s appeal on March 6, 2020 without waiting for the date of enforcement of the revised Public Service Ethics Act even though the revised Public Service Ethics Act was promulgated.

B. We examine these facts in accordance with the relevant provisions and legal principles as seen earlier.

(1) The Re-Appellant, after retired on December 31, 2018, was immediately employed in Creconc without undergoing the procedure for verification as to whether employment restriction was restricted (hereinafter “instant violation”), and at the time of employment, was in violation of Article 18(1) of the former Public Service Ethics Act, and thus, constitutes the subject of an administrative fine under Article 30(3)2 of the same Act.

(2) According to the Public Service Ethics Ordinance amended and enforced during the trial of a fine for negligence on the instant violation, where the re-appellant, who retired from the position that was a national police officer, is a service worker, a technician, or a person engaged in the relevant function or a simple labor worker according to the large classification of occupation publicly notified by the Commissioner of the Statistics Korea pursuant to Article 22(2) of the Enforcement Decree of the amended Public Service Ethics Act, where the re-appellant’s duties, such as “railroad crossing safety management and guard,” who was employed in the position that was reduced, falls under the category of occupation publicly notified by the Commissioner of the Statistics Korea, he/she shall be excluded from the scope of the person subject to employment

(3) In such a case, the instant violation was subject to a fine for negligence under the law at the time of the act, but under the law at the time of the trial, it could not constitute a violation of Article 18(1) of the amended Public Service Ethics Act, and thus, constitutes a case where the subject of a fine for negligence under Article 30(3) Subparagraph 8 of the same Act is not subject to a fine for negligence. The amended Public Service Ethics Ordinance does not have any special provision stipulating that a fine for negligence shall be punished by applying the Act at the time of the act, and thus, it is impossible to impose

(4) In full view of the re-appellant’s work in charge and annual salary as indicated in the written confirmation of expected employment as of December 18, 2018, and the government public service ethics committee reply made on June 19, 2019, etc., the re-appellant’s work in charge of the re-appellant’s work, including “railroad crossing safety management and guard,” etc., is likely to constitute “service workers, technical personnel, and employees or simple labor workers according to the standard classification of occupation publicly notified by the Commissioner of the Statistics Korea in accordance with Article 22 of the Statistics Act” under Article 31(2) of the Enforcement Decree of the amended Enforcement Decree, the lower court needs to review and determine the case after remand. In this respect, the lower court’s order was no longer maintained.

3. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)