(영문) 서울고등법원 2011.5.24. 선고 2010누37539 판결

The judgment of the first instance shall be revoked. The defendant's ex officio dismissal on November 17, 2009 against the plaintiff shall be revoked.

Reasons

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, in addition to the following supplement of the judgment of the court of first instance as to the assertion of violation of the principle of statutory reservation, Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, it cited the judgment of the court of first instance in accordance with Article 420 of the Civil Procedure Act.

2. Supplementary judgment

Article 2 (3) 2 of the State Public Officials Act provides that "public officials in extraordinary civil service who are appointed in accordance with separate qualification standards and who are designated as public officials in extraordinary civil service in accordance with laws and regulations." However, Article 2 (2) of the State Public Officials Act provides that "public officials in career service are appointed according to their performance and qualification, whose status is guaranteed, and who are expected to work as public officials in extraordinary civil service through the definition of public officials in extraordinary civil service is different from their career and public officials in their status guarantee. Accordingly, Article 3 of the State Public Officials Act provides that Article 33 of the grounds for disqualification for public officials in special career service, including public officials in extraordinary civil service, Article 5 of the remuneration, Chapter 6 of the remuneration, Chapter 7 of the service and Article 69 on their ipso facto retirement, and Article 2 (2) of the State Public Officials Act provides that the provisions of the Act do not apply to public officials in principle, and it is clear that Article 68 of the State Public Officials Act applies to the status guarantee of Chapter 8.

In addition, a public official in extraordinary civil service who is a public official appointed under the Act and subordinate statutes is distinguishable from a public official in special service who is expected to work as a public official in general service and who is expected to work as a public official in full time. Therefore, according to the systematic interpretation of the relevant Acts and subordinate statutes, it is interpreted that the person who has the authority to appoint and dismiss public officials in extraordinary civil service does not grant a broad discretion on ex officio dismissal, and that it does not allow ex officio dismissal to the person who has the authority to appoint and dismiss public officials in extraordinary civil service, in light of the purpose of the system of public officials in extraordinary civil service. (In the case of career public officials whose status guarantee is more clear than that of public officials in extraordinary civil service, if the person who has the authority to appoint and dismiss public officials becomes a public official in special service, the person who has the authority to appoint and dismiss the public official can be ex officio

Therefore, in cases where a public official in special service is appointed as a public official in special service as a result of the provision on the appointment of a public official in special service with respect to a specific organization, if the organization is abolished or becomes excessive due to the alteration of the organization and regulations, even though there is no express provision that a public official in special service may be dismissed ex officio if he/she becomes a public official in special service due to the alteration of the organization and regulations, it is reasonable to view that a public official in special service can be dismissed ex officio.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed.