If a public official subject to disciplinary action voluntarily retires, the benefit of action for cancellation

If it is necessary to cancel the illegal salary reduction disposition even when a public official's status is lost after a disciplinary action is taken, there is a benefit in action to seek the cancellation of the above salary reduction disposition.

Plaintiff 1 and one other, Attorney Kim Yong-hwan

Commissioner of the National Tax Service (Attorney Ansan-gu, Counsel for defendant)

Seoul High Court Decision 73Gu255 delivered on June 18, 1974

The original judgment is reversed, and the case is remanded to Seoul High Court.

According to the original judgment, disciplinary action against a public official is a sanction imposed on the violation of public official's duty, based on the special status of the public official, and its contents are on the premise of the existence of the public official's status and the deprivation of all or part of the personal interest of the public official. Therefore, if a public official who was subject to disciplinary action retires due to the acceptance of a letter of opinion, it is not useful to dispute whether the disciplinary action is illegal or not, but the plaintiff continued to work under a disciplinary action taken on March 9, 1973 and voluntarily retired from office around February 1974. Thus, the lawsuit of this case is dismissed

However, in a case where a public official is deprived of some or all of his interest in his status or property through an illegal disciplinary action, if it is necessary to remove retroactively the original or incidental result of such disciplinary action from the time of the disposition, to restore the legal status of the same as that of the disposition, and to obtain relief from the illegal disposition, it shall be necessary to claim the illegality of the disciplinary action and to seek the cancellation thereof if it is necessary to cancel it, and if it is appropriate and reasonable to bring a lawsuit for that purpose, it shall not be argued that there is no interest in the lawsuit merely because the public official's status has been lost.

(In this case, if it is possible to deal with the existence or absence of the effect of a disciplinary action on the premise of a suit directly aimed at restoring the status and property interest deprived of by a disciplinary action, it will be the immediate remedy by a suit directly aiming at restoring the deprived benefit. Therefore, the existence or absence of the effect of a disciplinary action on the premise of the disciplinary action should not be dispute independently by the suit.

However, since it is obvious that the plaintiff et al. sought the revocation of the reduction of salary as a result of the original disciplinary action, if the reduction of salary to be received by him/her is reduced within the scope of the disposition, and the public official is directly affected by his/her disadvantage. Thus, the purpose of remedy for the illegal disposition cannot be sufficiently achieved unless he/she is revoked except where the defect is grave and obvious, and the defect is null and void. In this case, the purpose of remedy for the illegal disposition can not be satisfied. And in this case, unless the recovery of the deprived profit directly is revoked by the relevant administrative agency, it cannot be argued on the premise of whether the reduction of salary is illegal or not. On the other hand, unless there is a reasonable measure as well as the claim for revocation by the action, it should be determined that the retirement of a public official has been lost without the revocation of the reduction of salary, and it should be determined that there is no reason for the loss of profit as a result of the action.

Therefore, the judgment of the court below, which differs from the above opinion, shall be deemed to have affected the judgment by misunderstanding the legal principles as to the interest in the lawsuit. Therefore, the appeal pointing this out is

Therefore, this case's appeal is with merit, and therefore, under the provisions of Article 400 and Article 406 (1) of the Civil Procedure Act, the original judgment is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating judges

Justices Min Jae-chul (Presiding Justice)