2017Guhap54665 Revocation of the disposition of refusal to re-determine the salary class

1. A;

2. B

The President of the Central Local Labor Agency

November 30, 2018

December 14, 2018

1. All of the plaintiffs' lawsuits are dismissed. 2. Litigation costs are assessed against the plaintiffs.

The defendant's rejection disposition against the plaintiffs on September 6, 2017 is revoked.

1. Basic facts

A. From March 29, 2010 to August 31, 2014, Plaintiff A served as the Ministry of Employment and Labor C Branch office for 25 hours a week, Plaintiff B as the job counselor for each short-time work in the Ministry of Employment and Labor’s D Branch office for 25 hours a week.

B. On September 1, 2014, the Plaintiffs were appointed as state public officials of Grade 9 on a flexible basis in occupational counseling job series. The Defendant, according to the Public Officials Remuneration Regulations, defined Plaintiff B’s beginning salary class 1 and Plaintiff A’s beginning salary class 7, respectively.

C. On July 14, 2017, the Plaintiffs filed an application with the Defendant for re-Definition of the Plaintiffs’ beginning salary grades pursuant to Article 9 of the Public Officials Remuneration Regulations, arguing that the Plaintiffs’ beginning salary grades should be reflected in the “private career counselors who work full-time pursuant to Article 4-4(1) of the Employment Security Act” under Article 8 [Attachment 16] 2(b)(7) of the Public Officials Remuneration Regulations, on the ground that the career as a part-time job counselor is included in the “private career counselors who work full-time”.

D. The Minister of Employment and Labor transferred the above application to the Defendant on July 19, 2017. On September 6, 2017, the Defendant rejected the Plaintiffs’ application on the grounds that the Plaintiffs’ work as a part-time work counselor cannot be deemed to have been engaged in full-time work (hereinafter “instant disposition”). E. The Plaintiffs filed the instant lawsuit seeking revocation of the instant disposition on November 20, 2017 without undergoing the review and decision of the appeals review committee.

[Ground of recognition] The facts without dispute, Gap evidence No. 1, Eul evidence No. 1, and the purport of the whole pleadings

A. The defendant asserts that the lawsuit of this case filed by the plaintiffs without going through the review and decision of the appeals review committee is unlawful.

B. Article 9 of the State Public Officials Act provides that "In order to examine and decide on any disciplinary action, other unfavorable action against a public official belonging to an administrative agency, or appeal against omission against his/her will, an appeals review committee shall be established in a personnel innovation agency." Article 16(1) provides that "no administrative litigation against any other action, disposition, or other unfavorable action or omission against his/her will may be lodged without going through the review and decision of the appeals review committee."

However, the disposition of this case is a disadvantageous disposition against the plaintiffs' will because the defendant refused to apply for re-determination of the beginning salary grade of this case (the defendant asserts that the contents alleged by the plaintiffs as the grounds for re-determination of the salary grade do not fall under the grounds for re-determination of the salary grade, so the disposition of this case is not recognized as a simple civil petition, but where the contents and purport of Articles 8 (1), 9 (1), and 18 of the Rules on the Rules on the Remuneration of Public Officials or where the definition of the salary grade was erroneous by reasoning, the defendant, who is the person entitled to re-determination of the salary grade, has the right to apply for re-determination of the salary grade to the defendant, who is the person entitled to re-determination of the salary grade, and thus the disposition of this case is recognized) and in order to institute administrative litigation thereon, it shall undergo examination and decision of the appeals review committee pursuant to Article 16 (1) of the State Public Officials Act

C. As to this case, the plaintiffs asserted that there was an administrative appeal rejection ruling prior to the closing of argument, and thus, the defects that the plaintiffs did not undergo the examination and decision of the appeals review committee were cured.

Article 18 (1) of the Administrative Litigation Act provides that a revocation lawsuit may be brought without going through a case where it is possible to bring an administrative appeal against the disposition in question under the provisions of law: Provided, That the same shall not apply to the case where there is a provision that a revocation lawsuit cannot be brought without going through an adjudication on the administrative appeal against the disposition in question, and Article 18 (3) provides that "in the case of the proviso of paragraph (1), a revocation lawsuit may be brought without filing an administrative appeal if there is a reason falling under any of the following subparagraphs," while Article 18 (1) of the Administrative Litigation Act provides that "in the case of the same kind,

According to the health class, Gap evidence No. 6, from January 29, 2018 to E high-speed Labor Office, G (hereinafter referred to as "F, etc.") serving as job counselor and administrative assistant in F and administrative assistant in E high-speed Labor (hereinafter referred to as "F, etc.") applied for re-determination of the beginning salary class after aggregating work experience as a part-time counselor prior to appointment to the head of E high-speed Labor Office. However, the head of E local labor office rejected the above application on July 6, 2018, and thereafter filed a request for review with the appeals review committee. However, the appeals review committee filed a request for review on September 11, 2018, which is prior to the closing of the argument in the instant case, by reflecting the private career experience as full-time job counselor in E high-speed labor office [Attachment 15], and [Attachment 16], and thus, it is difficult to recognize the beginning salary class as a full-time job counselor for 40 days prior to the closing of the argument in the instant case.

However, Article 18 (3) 1 of the Administrative Litigation Act provides that an administrative litigation may be instituted without going through an administrative appeal when a ruling of rejection was already rendered on the same case. If the result of the adjudication of the administrative appeal is clear and it is impossible to anticipate the adjudication of acceptance, the exclusive value of the administrative appeal would be unreasonable (see Supreme Court Decision 94Nu4653, Nov. 8, 1994). In a case where the exclusive principle of administrative appeal is applicable and the procedure was corrected after the administrative litigation was instituted without correction of certain requirements, such error may be deemed to have been cured and lawful. However, in a case where it is impossible to correct as long as the period of objection does not meet the above time limit, if the request of rejection, which is the procedure of an administrative appeal seeking the cancellation of administrative disposition, is illegal due to the lapse of the time limit, the administrative litigation cannot be dismissed as it does not satisfy the requirements of the Plaintiffs’ request of rejection before and after the appeal was filed within the period of time fixed by Article 18 (3) 1 of the Administrative Litigation Act (see Supreme Court Decision 2009, Sept. 8, 198, 98, etc.).

D. Therefore, the plaintiffs' lawsuit seeking the revocation of the instant disposition is inappropriate without going through legitimate pre-trial proceedings. Therefore, the defendant's defense prior to the merits is justified.

3. Conclusion

Therefore, since the plaintiffs' lawsuit is unlawful, it is decided to dismiss all of them. It is so decided as per Disposition.

The presiding judge, the senior judge;

Encouragement of Judge Creation

Judges Don-leap