2012Nu34206 Verification of the status of public official

1. A;

2. B

Attorney Yoon Young-young, Counsel for the plaintiff-appellant

Korea

Government Law Firm Corporation, Attorney Lee Jae-in, Counsel for defendant-appellant

Seoul Administrative Court Decision 2012Guhap16824 decided October 11, 2012

July 19, 2013

August 23, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance is revoked. The plaintiffs and the defendant confirm that they are the state public officials belonging to each National Intelligence Service.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the overall purport of the arguments in the statements in Gap evidence 1, Gap evidence 2, Eul evidence 4, Eul evidence 6, Eul evidence 3, Eul evidence 5-1, 2, Eul evidence 6, Eul evidence 7-1, 2, Eul evidence 8-2, Eul evidence 9-1, and Eul evidence 9-2:

A. The plaintiffs' membership of National Intelligence Service

① On August 21, 1986, Plaintiff A and Plaintiff B were government public officials of Grade 10 in technical service in each National Intelligence Service on September 22, 1986, and input work (occupational group and organization engaged in editing, etc. of publications).

② Since June 1, 1989, the Plaintiffs promoted to Grade 9 and Grade 8 on June 1, 1995, and were newly established in the occupational group of the administrative assistance, which led to the establishment of a computerized-type (electronic-type 1) occupational category. From December 12, 1993 and June 31, 1993, the Plaintiffs belonged to the computerized-type occupational category and were in charge of editing publications.

(b) Appointment of council members or public officials in contractual service due to abolition of functional category;

① On March 31, 1999, attached Table 2 of the Enforcement Decree of the Staff of the National Intelligence Service Act was amended, and the National Intelligence Service abolished six of the six categories of computerized typesetting, input work, telephone exchange, guidance, good offices, and honor (hereinafter “displacement of the instant series of class”).

② The abolition of the instant series of class was conducted when restructuring was conducted at the government level in the situation of the so-called IMF economic crisis. In the case of the National Intelligence Service, reflecting the results of self-examination carried out from around 1994, the National Intelligence Service decided to abolish the series of class in the case of telephone exchange, maintenance, electricity, cooling, heating, cooling, protection, and printing, while reducing the prescribed number, while reducing the prescribed number, and the class of radio communication and wire communications class is combined into the class of class of class of class, and the class of class of class of class of class of class of class of class of class of class of class of class of class of class of class of class in the case of telephone exchange, line of class,

③ As the job series to which the Plaintiffs belong, the Plaintiffs were dismissed from office on April 30, 199, and were reappointed on May 1, 199 as the National Intelligence Service contract worker (the former contract worker).

(c) Renewal and retirement of a contract;

① After that, the Plaintiffs were to renew the contract at the National Intelligence Service on a one-year basis, and continue to work, and Plaintiff A and Plaintiff B retired on December 31, 2010, and on June 30, 2010.

② At the time of retirement, the Plaintiffs were public officials in contractual service (a contracting officer under Article 2-3 of the Enforcement Decree of the National Information Service Act) among public officials in special career service as state public officials.

D. Filing a lawsuit claiming unpaid wages;

① On September 13, 2010, the Plaintiffs filed a lawsuit against the Defendant seeking unpaid wages from July 2007 to March 2011, 2011, since the abolition of the instant occupational category becomes null and void by Seoul Central District Court 2010Da372729.

② On June 23, 2011, the lower court rendered a judgment on the entire failure of the Plaintiffs to the effect that the abolition of the instant functional category cannot be deemed null and void.

③ Although the Plaintiffs appealed, the appeal was dismissed on November 10, 201, and the said judgment became final and conclusive on December 3, 2011.

2. The assertion and judgment

A. The parties' assertion

1) Summary of the plaintiffs' assertion

Article 20 of the National Intelligence Service Contract Employee Regulations provides that the upper age limit for women shall be set at 43 years of age in the case of computerized typesetting, input work, telephone exchange, and guidance service, and stipulates that the upper age limit for women only shall be set at 57 years of age in the case of women, and that the upper age limit for women only shall be set at 57 years of age in the case of honor. Thus, the determination of the upper age limit for computerized typesetting work for the plaintiffs as 43 years of age in the case of women’s early retirement is illegal, and it is against

According to Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter referred to as the "fixed-Term Act"), the Plaintiffs shall be regarded as an employee with no fixed period of time in the case of a fixed-term worker who continues to work for more than two years with the employer, and the Plaintiffs also have continuously worked as state public officials in the NIS beyond two years, and thus, they are in the position to be regarded as an employee with no fixed-term employment contract after the expiration of the contract period.

In addition, since the long-term contract has been repeatedly concluded, the contract period is merely the form, and the contract period is not fixed, and even if the contract period is valid, the plaintiffs acquired the legitimate expectation for the renewal of the contract.

2) The defendant's argument

The plaintiffs are public officials in contractual service who were retired due to the expiration of the contract term, not the upper age limit or retirement age, and they are subject to the exception provisions that do not constitute workers who do not have the fixed time limit under the Fixed-Term Workers Act, and therefore, they cannot be deemed to

B. Determination on the grounds for retirement of the plaintiffs

In light of the above facts and the following circumstances acknowledged by the evidence mentioned above, the plaintiffs' assertion that the National Intelligence Service retired from office on the ground that it reached the upper age limit for the public official in contractual service of computerized type type under Article 20 (2) of the Rules on the Contract Employees, is not acceptable.

(1) Article 2 (4) of the State Public Officials Act shall prescribe the procedures for appointment of public officials in extraordinary civil service and the maximum working age of public officials in contractual service, among public officials in non-career service, and other necessary matters, as prescribed by Presidential Decree.

② Accordingly, Article 6(1) of the current Regulations on the Personnel Management of Public Officials in Special Services, who are Presidential Decrees, sets the maximum working age for public officials in extraordinary civil service at 60 years in general, but only provides for the employment period in the Regulations on Contract Public Officials, who are Presidential Decrees, and do not separately provide for the provisions on the maximum working age for public officials in contractual service, and there is no other provision on the maximum working

③ As can be seen, the reason why a contracting officer does not separately provide for the provision on the upper age limit for duties, is that, considering the characteristics of contracting public officials who are employed only for the period of their employment (one or two years a week) according to their employment contracts with the State, the age of the applicants for contracting public officials may be considered when determining whether to employ them at the stage of concluding a contract and the period of their employment, and the completion period of their employment at the same time as the employment is determined, it seems that there is little need to

④ Meanwhile, under Article 20 subparag. 2 of the National Intelligence Service, the National Intelligence Service established “the Regulations on Contract Employee” in its internal rules, and set the upper age limit for employees in computerized type work positions such as the Plaintiffs at 43 years of age. Although Article 2(4) of the State Public Officials Act provides that the upper age limit for employees in computerized type work positions such as the Plaintiffs shall be set by the Presidential Decree, the pertinent provision has no legal effect since the National Intelligence Service established the instant provision concerning the restriction on rights of the people without delegation of superior laws and regulations. However, the instant provision appears to have served as the level of internal rules in response when the National Intelligence Service concludes an employment contract or extends the contract period by selecting a public official in computerized type work positions by selecting a public official in charge of contracts or by selecting a public official in charge of employment contract during the contract period. In other words, even if the head of the National Intelligence Service did not, on April 23, 199, extend the employment age limit for public officials in computerized type work positions by up to 45 years of age in the contract type.

⑤ On December 31, 2009, the Defendant (National Intelligence Service) determined the contract term as from January 1, 2010 to June 30, 2010, and concluded a renewal contract with the Plaintiff as “from January 1, 2010 to December 31, 2010” and as “from January 1, 2010 to December 31, 2010.” The Plaintiffs all were born in 1965 and reached the age of 43 years in 2008, and thus, at the time of entering into each renewal contract, the upper age limit for duties prescribed by the instant provision was expired. The Plaintiffs were treated as retirement upon the expiration of the said renewal contract term.

C. Determination as to the assertion that the plaintiffs are converted to a fixed-term worker without a fixed-term worker period under the Fixed-term Workers Act

1) Whether the main sentence of Article 4(1) and (2) of the Fixed-term Employment Act can be applied to the contract public officials, etc.

A) Since a public official is an employee under Article 14 of the Labor Standards Act that provides labor for the purpose of wages, in principle, the Labor Standards Act applies to a public official unless otherwise provided in other Acts and subordinate statutes (see, e.g., Supreme Court Decision 94Da446, Apr. 23, 1996). Meanwhile, Article 3(3) of the Fixed-term Act provides that “this Act shall apply to agencies of the State and local governments regardless of the number of full-time employees.”

B) Although there is no room to regard public officials in contractual service as being subject to the fixed-term law under the interpretation of Article 3(3) of the Fixed-term Act, in light of the following circumstances, which can be seen by comprehensively taking into account the legal nature of public officials in contractual service, language and history of relevant statutes, legislative intent, etc., public officials in contractual service cannot be deemed workers subject to the fixed-term law.

① Article 7(2) of the Constitution provides that “The status and political neutrality of a public official shall be guaranteed under the conditions as prescribed by the Act.” Accordingly, the status, status, remuneration, major working conditions, etc. of a public official are determined by relevant Acts and subordinate statutes, including the State Public Officials Act. In other words, legal relations related to the employment, working conditions, etc. of a public official is not that which can be arbitrarily formed by a central administrative agency or a local government, but must be formed based on laws and orders delegated by the Act. This is because whether the appointment, work period, etc. of a public official is directly related to the budget for the citizen’s burden, and it affects the fair distribution of the right to participate in public affairs guaranteed by Article 25 of the Constitution. On the other hand, in the private sector where the employment contract relationship of a non-public official is formed, unreasonable discrimination against fixed-term workers and poor working conditions may be formed according to private autonomy, and thus, the Fixed-term Act was enacted for the purpose of correcting this and contributing to the sound development of the labor market.

② A central administrative agency or local government directly employs fixed-term workers of non-public official status, and the number of non-public official status increases. Article 3(3) of the Fixed-term Workers Act seems to be a provision to the effect that Article 3(3) of the Fixed-term Workers Act is applied to those non-public official status, without regard to the number of full-time workers employed by the State or local government.

③ According to the State Public Officials Act and the Local Public Officials Act, contractual public officials are allowed to work only for a certain period of time. If contractual public officials are allowed to serve contractual public officials, if the central administrative officer or local government uses contractual public officials for more than two years, the pertinent contractual public officials shall be regarded as “public officials in contractual service without a fixed period of time.” This is a form of public officials in contractual service, in which the State Public Officials Act and the Local Public Officials Act do not present at all, may be established by “an act of exceeding a fixed period of time”. This means that a central administrative agency or local government may form a legal relationship related to the employment, working conditions, etc. of public officials at will. Therefore, it goes against the nature of legal relations related to contractual public officials subject to high-level public law regulations due to the bound employment

C) Even if there is room for a contract-based public official to be subject to the application of the legal principles under the private law, in light of the following relevant laws and regulations, in the case of a contract-based public official, a contract-based public official shall not be converted to a contract-based public official even if he/she works for more than two years under the proviso of Article 4(1) of the Fixed-term Public Officials Act, and thus, it would result in no difference between the contract-based public

(1) The proviso of Article 4 (1) of the Fixed-term Workers Act provides for exceptions to the employment of fixed-term workers for more than two years (limited to cases where the period exceeds two years but not regarded as an inorganic worker) under subparagraphs 1 through 6, and Article 3 (3) 1 of the Enforcement Decree of the Fixed-term Workers Act provides that "where there are reasonable grounds corresponding to subparagraphs 1 through 5, which are prescribed by the Presidential Decree" and "where the Presidential Decree prescribes under Article 4 (1) 6 of the Fixed-term Workers Act, "where other Acts prescribe the period of employment of fixed-term workers differently from Article 4 (1) of the Fixed-term Workers Act, or where the term of employment of fixed-term workers is determined separately from those of Article 4 (3) 1 of the Enforcement Decree of the Fixed-term Workers Act and Article 4 (1) 6 of the Act provides that "where there are reasonable grounds corresponding to Article 4 (1) 1 through 5 of the Fixed-Term Workers Act", the term of employment of fixed-term Workers can be interpreted as a contract term exceeding 1 to public officials.

(2) On the other hand, Article 6 of the Regulations on Contract-Related Officials applied mutatis mutandis under Article 2-3(4) of the Enforcement Decree of the National Intelligence Service Employee Act provides that the period of employment of public officials in contractual service (excluding public officials in contractual service) shall be the period necessary for performing the relevant project within the scope of five years (paragraph (1)); and the head of each agency shall provide that public officials in contractual service may conclude a labor contract by setting a separate period, such as (Paragraph (2) and (3) allowing the extension of the total period of employment of public officials

③ The Enforcement Decree of the National Intelligence Service Employee Act and the Regulations on Contract Public Officials shall be construed as “where the term of employment of fixed-term workers is determined differently from Article 4(1)6 of the Fixed-term Workers Act and Article 3(3)1 of the Enforcement Decree of the Fixed-term Workers Act, or where the term of employment of fixed-term workers is determined separately from Article 4(1) of the Act, or where the contract for employment is concluded by fixing a separate period of time under the Fixed-

④ Meanwhile, the term of the National Intelligence Service contract for a public official in contractual service is in accordance with the relevant statutes and cannot be deemed as a case where the said term is formally established, and thus, it cannot be deemed as a case where the said term is unreasonable or justifiable. Thus, even if the term of the contract was extended and the contract was re-established and served for more than 10 years, the Plaintiffs cannot be deemed as a public official in contractual service or a public official

2) Therefore, the plaintiffs shall not be subject to Article 4(1) main text and Article 4(2) of the Fixed-term Public Officials Act, and even if they were employed as public officials in contractual service for more than two years or employed as public officials in secondary contractual service in the status of serving for more than ten years under extension of contract period or renewal of contract period, they shall not be subject to indefinite contract public officials or public officials in career service, and thus, the plaintiffs' above assertion

D. The plaintiffs' assertion that since long-term contracts have been repeatedly concluded, the contract period is merely formal or legitimate right to expect the renewal of the contract has been acquired.

According to the State Public Officials Act, public officials in contractual service may be employed by their employment contracts with the State for a certain period of time (Article 2(3)3); public officials in contractual service who are engaged in duties that require expertise and technology or that require flexibility in appointment (Article 2(4)); public officials in contractual service who are employed by central administrative agencies are prescribed by Presidential Decree as well as matters necessary (Article 2(4)); public officials in contractual service are classified as public officials in contractual service, specialized civil service, part-time public officials in contractual service, and public officials in contractual service, and public officials in contractual service who are employed under the employment contracts with the State; public officials in contractual service (Article 2(1)); public officials in contractual service may be employed by their employment contracts within the fixed period (limited to where public officials in contractual service are employed as general public officials), public officials (excluding temporary public officials), public officials in contractual service (Article 6(1)3); public officials in contractual service who are employed by their respective agencies shall be deemed to have been negligent in performing their duties to public officials in contractual service or to have their respective employment contracts renewed or terminated.

Therefore, in principle, a public official in contractual service, such as the plaintiffs, is employed under a contract during which the period of employment is fixed and the period of employment expires, the status of the contract is terminated as a matter of principle: Provided, That it is reasonable to maintain the status of the previous contract only when the defendant concludes a renewal contract after re-evaluation of his/her work performance and ability, and only when the defendant actually concludes a renewal contract after it is determined that the contract would be proper to conclude the renewal contract. Thus, just because the contract and extension has been repeated for a long time between the defendant and the plaintiffs, the contract term under the employment contract cannot be deemed as merely a form of contract under the law and regulations (see Supreme Court Decision 92Nu4611, Sept. 14, 193). In addition, in light of the above, legal relations related to the employment, working conditions, etc. of public officials must be formed based on the law and the order delegated thereto, even if the contract has been renewed repeatedly for more than 11 years, the National Intelligence Service does not expect the renewal of the contract to the plaintiffs without any such grounds.

Ultimately, the plaintiffs' assertion that the contract term of the plaintiffs who are public officials in contractual service is merely formal or that there was a right to expect the renewal of the contract to the plaintiffs cannot be accepted.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in its entirety due to the lack of reason, and the judgment of the court of first instance is just in its conclusion, and all appeals by the plaintiffs are dismissed. It is so decided as per Disposition.

The presiding judge, judge and assistant administrator;

Judges Nown Korea

Judge Lee Ro-man

1) a series of classes in charge of the placement, the duties of the producer, and the editing duties for publication;

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.