[1] Whether the previous labor relationship of a person who retired from the status of a public official of the Korea Railroad Corporation at the time of the establishment of the Korea Railroad Corporation is naturally succeeded to the Korea Railroad Corporation (affirmative), and whether the labor relationship of a person who actually worked in the above construction has been succeeded to even though he had lost his status as a public official (negative

[2] In a case where a state public official who received a suspended sentence of imprisonment without prison labor or heavier punishment and retired ipso facto from office loses its effect pursuant to Article 65 of the Criminal Act, whether the effect of the sentence already occurred shall be lost (negative)

[3] The case holding that in case where Gap, while serving as a public official of the Korea Railroad Corporation while serving as a public official of the Korea Railroad Corporation on January 1, 2005 while serving as a public official of the Korea Railroad Corporation, retired from the status of public official of the Korea Railroad Corporation and actually served as an employee of the Korea Railroad Corporation, Gap is not allowed to change his status as an employee of the Korea Railroad Corporation under Article 7 (1) and (2) of the Addenda of the Korea Railroad Corporation Act (amended by December 31, 2003) since he had already lost his status as a public official of the Korea Railroad Corporation at the time when the above suspended sentence became final and conclusive, and therefore Gap's appointment on January 1, 2005 is not effective

[1] Articles 21(3) and 25(1) of the Framework Act on Railroad Industry Development; Articles 1, 7(1), (2), and (4) of the Addenda of the Korea Railroad Corporation Act (amended by Act No. 6788, Dec. 18, 2002) / [2] Articles 33(1)4 and 69 of the former State Public Officials Act (amended by Act No. 6788, Dec. 18, 2002); Article 65 of the Criminal Act / [3] Articles 21(3) and 25(1) of the Framework Act on Railroad Industry Development; Articles 1, 7(1), (2), and (4) of the Addenda of the Korea Railroad Corporation Act; Articles 33(1)4 and 69 of the State Public Officials Act

[1] Supreme Court Decision 2003Da39644 Decided March 25, 2005 (Gong2005Sang, 647) / [2] Supreme Court Decision 2001Du205 Decided July 26, 2002 (Gong2002Ha, 2068)

Plaintiff

Korea Railroad Corporation (Law Firm Korea, Attorneys Kim Tae-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na72990 decided March 20, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

In cases of transferring a specific project carried out by the State or a local government to a construction newly established under the Act, the scope of rights and obligations to be succeeded to the construction newly established by a legislative policy decision may be determined in light of the fact that there is a change in the status of the human organization and there is a difference in laws regulating it (see Supreme Court Decision 2003Da39644, Mar. 25, 2005). However, Article 21(3) of the Framework Act on Railroad Industry Development provides that “The State shall establish the Korea Railroad Corporation (hereinafter referred to as “Korea Railroad Corporation”) by converting the relevant organizations of the Korea Railroad and the Korea High-Speed Rail Construction Authority to efficiently operate the railroad operation-related project, and Article 25(1) of the same Act provides that “The Korea Railroad Corporation and the Korea Railroad Facilities Corporation shall appoint public officials, excluding those who continue to maintain their status as public officials among the employees of the Korea Railroad Corporation and the Korea Rail Construction Authority (hereinafter referred to as “Korea Railroad Corporation”) to which public officials are appointed by the Korea Railroad Corporation shall be transferred to a public official.

In light of the language and legislative intent of the above provisions, the previous labor relationship of a person who retired from the status of a public official belonging to the Korea Railroad Corporation at the time of establishment of the Korea Railroad Corporation pursuant to Article 7(1), (2) and (4) of the former Enforcement Decree of the Korea Railroad Corporation Act and was appointed as an employee of the Korea Railroad Corporation shall be deemed naturally succeeded to the Korea Railroad Corporation. In such cases, the labor relationship succeeded refers only to a labor relationship with a person who has a status as a public official of the Korea Railroad Corporation as of January 1, 2005, which is the enforcement date of the former Korea Railroad Corporation Act, and does not succeed to a labor relationship of

Meanwhile, Article 69 of the former State Public Officials Act (amended by Act No. 6788, Dec. 18, 2002; hereinafter the same) provides that "a public official falls under any of the subparagraphs of Article 33, ipso facto retirement shall be made." Article 33 (1) 4 of the same Act provides that "a person who was sentenced to imprisonment without prison labor or heavier punishment and for whom two years have not passed from the date on which the period of suspension of the execution expires." The ipso facto retirement system provided for in Article 69 of the former State Public Officials Act provides that "a person who was subject to a suspended sentence of imprisonment without prison labor or heavier punishment and for whom two years have not passed from the date on which the period of suspension of the execution expires." The ipso facto retirement system provided for in each subparagraph of Article 33 (1) of the same Act naturally loses its status as a public official at the time of disqualification without the declaration of intention of the appointing authority. Thus, if a state public official becomes subject to a suspended sentence of imprisonment without prison labor or more, it shall not affect the validity (see, etc.).

According to the reasoning of the judgment of the court below, while working as a public official of the Korea Railroad Corporation on August 30, 1989, the plaintiff was indicted for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes on or around March 16, 1994, and was sentenced to one year of suspension of execution, and the judgment became final and conclusive on May 7, 1994. However, the Korea Railroad Corporation did not know such circumstances and did not take any measures against the plaintiff. The plaintiff was serving as a public official of the Korea Railroad Corporation on January 1, 2005 and retired from office as a public official of the Korea Railroad Corporation under Article 7 (4) of the former Addenda of the Korea Railroad Corporation Act and was actually serving as the defendant's employee under paragraph (2) of the same Article, and the defendant was aware of the fact that there was a ipso facto reason for the above ipso facto retirement against the plaintiff on February 21, 2006, "the defendant's act of disqualification under Articles 69 (333) and 15.5.5.

Examining the above facts in light of the legal principles as seen earlier, since the judgment of the suspension of the above execution became final and conclusive on May 7, 1994, the Plaintiff has already lost the status as a public official of the Korea Railroad Corporation at that time, the Defendant’s employee cannot be converted pursuant to Article 7(1) and (2) of the former Addenda of the Korea Railroad Corporation Act, and therefore, the Defendant’s appointment on January 1, 2005, premised on the premise that the Plaintiff has the status as a public official of the Korea Railroad Corporation

Therefore, the defendant's notification of this case is only to confirm and inform that the plaintiff already lost his status as a public official due to the final and conclusive judgment of suspended execution, and that the appointment on January 1, 2005 was not effective, and that there is no legal relationship between the plaintiff and the defendant. Therefore, there is no interest in the plaintiff's lawsuit seeking confirmation of invalidity of the notification of this case.

Although the judgment of the court below different reasons, the court below rejected the lawsuit seeking nullification of the notification of this case, and rejected the claim of this case on the premise that the plaintiff has maintained his status as the defendant's employee.

The court below did not err in the misapprehension of legal principle as alleged in the ground of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)