(a) Relationship between Article 28 of the Labor Standards Act and the retirement allowance provisions under the Public Officials Pension Act;

(b) Whether a local miscellaneous employee, etc. excluded from the application of the Public Officials Pension Act may receive retirement allowances under Article 28 of the Labor Standards Act;

1. Since state public officials or local public officials are workers under Article 14 of the Labor Standards Act, in principle, Article 28 of the Labor Standards Act is applicable, and the retirement allowance system under the Public Officials Pension Act is embodying the purpose of the above provision.

2. (A) Under the proviso to Article 2(1)1 of the Public Officials Pension Act and Article 2 subparag. 4 of the Enforcement Decree of the same Act, public officials in temporary position such as local-miscellaneous positions are excluded from the application of the Public Officials Pension Act, but there are no provisions in relevant Acts and subordinate statutes concerning the retirement allowance system of temporary public officials. Accordingly, they may receive retirement allowances under Article 28 of the Labor Standards

(B) Article 44(3) of the Local Public Officials Act (Article 46(4) of the State Public Officials Act) does not purport to prohibit temporary officials from paying retirement allowances based on the minimum standard under Article 28 of the Labor Standards Act.

Article 41-2(1) of the Local Public Officials Act, Article 4(2) of the Regulations on Local Miscellaneous Employees (Presidential Decree No. 7976), Articles 10, 11, 14, and 28 of the Labor Standards Act, Article 1 and the proviso to Article 2(1)1 of the Public Officials Pension Act, Article 2 subparag. 4 of the Enforcement Decree of the Public Officials Pension Act, Article 46(4) of the State Public Officials Act, Article 44(3) of the Local Public Officials Act

Supreme Court Decision 78Da425 Decided June 27, 1978, 78Da2089 Decided January 30, 1979, Supreme Court Decision 68Da82, 883, 884, 885 Decided July 8, 1969

Plaintiff 1 and one other

Attorney Kim Chang-soo, Counsel for the defendant-appellant

Seoul Civil District Court Decision 77Na980 delivered on December 30, 1977

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal are examined.

According to the facts duly admitted by the court below, the plaintiffs were appointed as temporary employees under the regulations of the Seoul Special Metropolitan City Temporary Employment Institute, and were employed as local miscellaneous employees on February 5, 1975 under Article 41-2 (1) of the Local Public Officials Act and Article 4 (2) of the Local Miscellaneous Personnel Regulations (Presidential Decree No. 7976), and were appointed on January 1 of each year until December 31, 1975 under Article 4 (2) of the same regulations, and were dismissed on December 31 of the same year. From January 1, 1976 to the retirement, the plaintiffs were dismissed on June 30 of the same year and again dismissed on July 1 of the same year, and the process of continuous dismissal from office on December 31 of the same year was continued from November 1, 1970 to May 21, 197; and they continued to work on December 16, 197 to June 15, 197.

However, according to Article 10 of the Labor Standards Act, the same Act applies to all businesses or workplaces, and Article 11 of the same Act applies to the state, Seoul, Busan, Do, Si, Gun, Eup, Myeon, and other equivalent ones. According to Article 14 of the same Act, the term "worker" means a person who provides labor for the purpose of wages in a business or workplace regardless of the type of occupation. Thus, the State or a local public official shall be a worker under Article 14 of the Labor Standards Act, which provides labor for the purpose of wages. Thus, as long as Article 28 of the Labor Standards Act is not actively excluded from the application of the Labor Standards Act, Article 28 of the Labor Standards Act, which provides for the retirement allowance of workers, should be applied to the public official under its jurisdiction. Thus, since the State and a local government is also a public official under its jurisdiction as to the payment of retirement allowance of the State and a local public official, the above Act shall be applied to the temporary retirement allowance of a public official under the same Act or to the temporary retirement allowance of a public official under the same Act for a limited period of one year.

However, in light of the above, Article 46(4) of the State Public Officials Act provides, “No money or valuables may be paid as remuneration for public officials unless it is provided by this Act” (Article 44(3) of the Local Public Officials Act) may be questionable whether the payment of retirement allowances for public officials in temporary service would be an obstacle to the Labor Standards Act, instead of under the State Public Officials Act or the Local Public Officials Act.

However, Article 28 of the Labor Standards Act on retirement allowances is clear in light of the legislative intent of the above retirement allowances, where the employer of a private company is forced to comply with Article 28 of the Labor Standards Act with respect to the same kind of worker directly employed by the State or a local government, which is enacted to guarantee the living of the general workers.

Therefore, there is no record that only the temporary retirement allowance should not be paid to the public officials in this case, and there is no special provision on retirement pay. However, it cannot be determined that there is no need to pay a retirement allowance solely on the ground that there is no special provision on retirement pay.

The purpose of Article 44(3) of the Local Public Officials Act (Article 46(3) of the State Public Officials Act, other than remuneration, is to prevent unfair comments or to receive remuneration without legal basis, and it does not necessarily mean that opening the way to receive retirement allowances under the Labor Standards Act, which is the minimum standard for all workers, for a temporary public official whose length is to be paid retirement allowances under the Public Officials Pension Act, is not an obstacle.

In interpreting the above, the court below's order of retirement allowance under the Labor Standards Act to pay for the employee employed by the defendant to the employee employed by the defendant(s)(s)(s)(s)(s)(s)(s)(3)(s)(s)(s)(s)(3)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s) and(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s))(s)(s)(s)

Therefore, the decision of the court below that ordered the defendant to pay retirement allowances under Article 28 of the Labor Standards Act to the plaintiffs who are temporary public officials as local miscellaneous employees from the same view as the members of the party that Article 28 of the Labor Standards Act applies, is just and the decision of the court below is not applicable to the temporary public officials, and it cannot be employed as it criticizes the decision of the legitimate original judgment in the opinion that Article

Therefore, the appeal shall be dismissed and the costs of appeal shall be borne by the defendant who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Byung-soo (Presiding Justice)