Plaintiff 1 and one other (Attorney Yoon Young-young et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Lee Jae-in, Counsel for defendant-appellant)

July 19, 2013

Seoul Administrative Court Decision 2012Guhap16824 decided October 11, 2012

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 1, and Plaintiff 2, September 22, 1986, to the National Intelligence Service, as a state public official of Grade 10 in technical service, in charge of editing, etc. publications, Plaintiff 1 becomes a state public official of Grade 10 in technical service, and carried out the duties of the occupational group ‘occupational group â…………

② Since June 1, 1989, the Plaintiffs promoted to Grade 9 on June 1, 1989 and Grade 8 on June 1, 1995, and (1) of the computerized-type type work group was newly established in the administrative-type work group. From December 31, 1993, the Plaintiffs belonged to the computerized-type work group and were in charge of the editing of 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, field line, and honor (hereinafter “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 cases of telephone exchange, maintenance, electricity, cooling, heating, cooling, protection, and printing, while reducing the prescribed number, while reducing the prescribed number, and the series of class of radio communication and wire communication work as a telecommunication management class, management and data management class, and the series of class of class of class in the office of clerical assistance.

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 Plaintiffs 1 and 2 retired on December 31, 2010, and Plaintiff 2 retired on June 30, 2010.

② At the time of retirement, the Plaintiffs were public officials in contractual service (a public official in contractual service under Article 2-3 of the Enforcement Decree of the National Intelligence Service Employee Act) among public officials in non-career service.

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 as 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 Staff Regulations provides that the upper age limit for computerized typesetting, entry work, telephone exchange, and guidance work that only women are employed shall be set at 43 years of age, and the upper age limit for women only are set at 57 years of age, and the upper age limit for women only are set at 57 years of age, thereby violating gender equality. The determination of the upper age limit for computerized typesetting work for the plaintiffs as 43 years of age is illegal, because it is a discrimination based on gender without reasonable grounds.

According to Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ 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 even in the case of the Plaintiffs, the National Intelligence Service continues to serve as a state public official beyond two years, and thus, the Plaintiffs are in the position to be regarded as an employee who entered into an indefinite 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, as public officials in contractual service, were retired due to the expiration of the contract term, not the upper age limit or retirement age, and are subject to the exceptional provisions that do not constitute workers without setting the deadline under the Fixed-Term Workers Act, and therefore, they cannot be deemed to have the status of

B. Determination on the grounds for retirement of the plaintiffs

In light of the following circumstances acknowledged by the above facts and the evidence as above, the Plaintiffs are deemed to have retired from office due to the expiration of the contract term as a public official in contractual service. Therefore, the Plaintiffs’ assertion that the NIS retired from office on the ground that it reached the upper limit for duties of public officials in contractual service as prescribed by Article 20 subparag. 2 of the Regulations on Contract Personnel.

(1) Article 2 (4) of the State Public Officials Act shall prescribe the employment conditions, appointment procedures, age limit of public officials in extraordinary civil service and public officials in contractual service among public officials in contractual service, and other necessary matters, such as the National Assembly Regulations, Supreme Court Regulations, Constitutional Court Regulations, National Election Commission Regulations

② Accordingly, Article 6(1) of the current Regulations on the Personnel Management of Public Officials in Special Services, who are Presidential Decree, sets the upper age limit for public officials in extraordinary civil service at 60. However, “public officials in contractual service” who are Presidential Decree, only provides for the employment period, and does not separately provide for the provisions on the upper age limit for public officials in contractual service, and there is no other provision on the employment

③ As such, given the characteristics of public officials in contractual service who have not separately provided for by Presidential Decree concerning the upper age limit for duties, the age of public officials in contractual service applicants may be considered when determining whether they are employed at the stage of concluding their employment contracts and their contract duration, and the completion period of their employment is determined at the same time as they are employed. Therefore, there is little need to set the upper age limit for duties in advance.

④ Meanwhile, under Article 20 Subparag. 2 of the National Intelligence Service’s internal regulations, the National Intelligence Service established the “Rules on Contract Personnel” and set the upper age limit for workers in contractual service, 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 public officials in contractual service belonging to central administrative agencies, the pertinent provision on the restriction on rights of the people without delegation by superior statutes, the pertinent provision has no legal effect. However, the instant provision appears to have been effective inasmuch as the National Intelligence Service established the instant provision on the restriction on rights of the people without delegation by superior statutes. In short, the instant provision appears to have served as the level of internal rules when entering into an employment contract with the head of the National Intelligence Service by selecting public officials in contractual service or extending the contract period. In other words, on April 23, 199, the head of the National Intelligence Service did not comply with the instant provision on the duty of public officials in contractual service who were in contractual service at the age of 45.5 years of age despite the instant provision on the employment age limit.

⑤ On December 31, 2009, the Defendant (National Intelligence Service) determined the term of the contract with Plaintiff 2 as “from January 1, 2010 to June 30, 2010” and concluded each re-contract with Plaintiff 1 as “from January 1, 2010 to December 31, 2010” and the term of the contract with Plaintiff 1 was “from January 1, 2010 to December 31, 2010.” Since both the Plaintiffs were born in 1965 and reached 43 years of age in 2008, the upper age limit for duties prescribed by the instant provision was expired at the time of entering into each re-contract. The Plaintiffs were treated as retirement upon the expiration of the said re-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 Article 4(2) of the Fixed-Term Contracts Act can be applied to 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 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) In the interpretation of Article 3(3) of the Fixed-Term Contract Act, there is no room to see the public official in contractual service as being subject to the Fixed-Term Contract Act. However, in light of the following circumstances, the public official in contractual service cannot be deemed a worker subject to the Fixed-Term Contract Act in light of the legal nature, language, history, legislative intent, etc. of the public official in contractual service.

① Article 7(2) of the Constitution provides for a career public official system by providing 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 the relevant 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 formed at will by a central administrative agency or a local government, but must be formed based on an Act and an order delegated by the Act. This is due to the fact that whether to employ and work period, etc. of a public official are directly related to the budget for the citizen’s burden, and that it affects the fair distribution of the right to participate in public service guaranteed under 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, poor working conditions, etc. for fixed-term workers according to the private autonomy, thereby enacting the Fixed-term Act to correct this and contribute to the sound development of the labor market.

② A central administrative agency or local government directly employs a non-public official status as a non-public official and has increased the number of fixed-term workers. Article 3(3) of the Fixed-term Workers Act seems to have a provision that allows the application of fixed-term workers regardless of the number of the number of workers ordinarily employed by the State or local government, taking into account such “non-public official status”.

③ According to the State Public Officials Act and the Local Public Officials Act, a public official in contractual service is obliged to work only for a certain period. If a public official in contractual service applies the fixed-term contract, if a central administrative agency or a local government uses a public official in contractual service for more than two years, the public official in contractual service is deemed to be a public official in contractual service. This means that a public official in contractual service in the form of which the State Public Officials Act and the Local Public Officials Act do not present at all may be established by the “excess use” of a central administrative agency or a local government. This means that a central administrative agency or a local government may form a legal relationship relating to the employment, working conditions, etc. of a public official at will. Thus, it goes against the nature of legal relations pertaining to a public official

C) Even if there is room for a contract 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 contract public officials, even if they have worked for more than two years under the proviso of Article 4(1) of the Fixed-term Employment Act, it is not converted to a contract public official, and thus, it would result in no substantial difference between not being subject to the fixed-term contract public official and not subject to the private law.

(1) The proviso of Article 4 (1) of the Fixed-term Workers Act provides for an exception to the employment of fixed-term workers for more than two years (which shall not be regarded as an inorganic worker even if the period exceeds two years) under subparagraphs 1 through 6, and Article 3 (3) 1 of the Enforcement Decree of the Fixed-term Workers Act provides that "any other reasonable ground corresponding to subparagraphs 1 through 5 exists, as prescribed by the Presidential Decree." Article 4 (1) 6 of the Fixed-term Workers Act provides that "where other Acts and subordinate statutes prescribe the term of employment of fixed-term workers differently from Article 4 (1) of the Fixed-term Workers Act or allow them to enter into an employment contract with a separate fixed period of time" (Article 3 (3) 1 of the Enforcement Decree of the above Act provides that "any reasonable ground corresponding to Article 4 (1) 1 through 5 of the Fixed-term Workers Act exists, and where the term of employment of fixed-term workers exceeds the total term of employment of fixed-term workers under Article 4 (1) 1) through 4)."

② Meanwhile, Article 6 of the Regulations on Public Officials in Contract Service (excluding temporary public officials) applied mutatis mutandis pursuant to Article 2-3(4) of the Enforcement Decree of the National Intelligence Service Employee Act provides that the employment period of public officials in contractual service (excluding temporary public officials) shall be the period necessary for performing the relevant project within the scope of five years (paragraph (1)); and the head of each institution may conclude an employment contract by setting a separate period, such as extending the total employment period of public officials in contractual service by up to five years (paragraphs (2) and (3)).

③ The Enforcement Decree of the National Intelligence Service Employee Act and the Regulations on Contract Public Officials shall be deemed to fall under 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 stipulating the exceptions in cases where deemed a contract worker under the Fixed-Term Workers Act and Article 4(1)6 of the Enforcement Decree of the Fixed-Term Workers Act provide for the exception thereof.

④ Meanwhile, the contractual term of a public official in contractual service of the National Intelligence Service is in accordance with relevant statutes, and cannot be deemed to fall under cases where the setting of the contractual term is formally unreasonable or justifiable. Therefore, even if the contractual term has been extended and the re-contract has been concluded and served for at least ten years, the Plaintiffs cannot be deemed to be in the position of a public official in contractual service or a public official in career service in contractual service solely on

2) Therefore, the Plaintiffs, as public officials in contractual service, shall not be subject to Article 4(1) main text and Article 4(2) of the Fixed-term Employment Act, and thus, even if they were employed as public officials in contractual service for more than two years or as public officials in contractual service for more than ten years under extension of contract period or re-employed as public officials in contractual service, they shall not be converted to weapons, public officials in contractual service or public officials in career

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 are employed for a certain period of time in accordance with their employment contracts with the State (Article 2(3)3); the employment conditions, appointment procedures, maximum age of public officials in contractual service belonging to a central administrative agency; and other necessary matters are prescribed by Presidential Decree (Article 2(4)). According to the provision on public officials in contractual service as prescribed by Presidential Decree, public officials in contractual service are classified as general public officials in contractual service, specialized public officials in contractual service, part-time public officials, and temporary public officials in contractual service (Article 2(1)); and the head of each agency may employ public officials in contractual service (limited to cases where public officials in contractual service are employed) within the fixed number (Article 5(1)); the employment period of public officials in contractual service (excluding public officials in contractual service) shall be within the period necessary for performing the relevant business (Article 6(1)3); and the head of each agency may change or terminate their employment contracts with public officials in contractual service (Article 7(1)1) where public officials in contractual service are negligent or lack in performing their duties, or need to frequently or terminate their employment contracts.

In light of the above provisions of the relevant laws and regulations, if the employment period stipulated in the employment contract of a public official in contractual service expires, whether to renew the employment contract or extend the employment period shall be deemed to be left at the discretion of the head of each agency.

Therefore, a public official in contractual service, such as the plaintiffs, shall, in principle, terminate the term of the contract when the employment period is employed by the contract and the contract period is terminated. However, it is reasonable to deem that the former status is maintained only in cases where the defendant and the plaintiffs have concluded a renewal contract after re-evaluation of his/her work performance and ability, etc., and it is reasonable to deem that the contract term under the employment contract, which is concluded in accordance with the law, has been repeated for a long time between the defendant and the plaintiffs, cannot be deemed merely in the form of the contract term (see Supreme Court Decision 92Nu4611 delivered on September 14, 1993). 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 for more than 11 years, the National Intelligence Service has been expected to be a public official in contractual service, the requirements and procedures for renewal of the contract, the actual condition thereof, and the details of the work performed by the plaintiffs, etc.

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 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.

[Attachment]

Judges Cho Young-chul (Presiding Judge)

Note 1) series of work in charge of the job placement, the work of the producer, and the compilation work for publication.