In a case where a public official of Seoul Metropolitan Government dies before the scheduled date of voluntary retirement after filing an application for voluntary retirement, the case holding that the voluntary retirement should be paid even if he/she retired due to the reason that he/she was not responsible as such before the scheduled date of voluntary retirement, regardless of the reason or motive of the application

In a case where a public official of Seoul Special Metropolitan City dies before the scheduled date of voluntary retirement after filing an application for voluntary retirement, the case holding that the voluntary retirement should be paid even if he/she retired due to the reason that he/she was not responsible as such before the scheduled date of voluntary retirement, regardless of the reason or motive of the application

Article 66-2(1) of the Local Public Officials Act; Article 3(1) and Article 13 of the former Rules on Payment of Voluntary Retirement Allowances, etc. of Local Public Officials (Amended by Presidential Decree No. 21177, Dec. 24, 2008); Articles 6(2) and 9 of the Seoul Metropolitan Government Rules on the Payment of Voluntary Retirement Allowances, etc. of Local Public Officials

Plaintiff (Law Firm Gyeong, Attorney Park Jong-soo et al., Counsel for plaintiff-appellant)

Seoul Special Metropolitan City Mayor

March 18, 2009

1. The Defendant’s disposition of exclusion from the payment of honorary retirement allowances to the deceased Nonparty 1 on August 26, 2008 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The main text of the complaint is the same as the order (the date of August 27, 2008 shall be deemed to be a clerical error in the text of the complaint on August 26, 2008).

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by adding all the statements in Gap evidence, Eul evidence (including branch numbers), Eul evidence, Eul evidence, Eul evidence, Eul evidence, Eul evidence, Eul evidence, Eul evidence, Eul evidence, Eul evidence, Eul evidence, Eul evidence, and non-party 2's testimony to the whole purport of the pleadings:

A. On October 6, 1981, the deceased non-party 1, who is the husband of the plaintiff, was appointed as a public official of Seoul Special Metropolitan City on April 21, 2007, and was judged Maamamam on February 21, 2008 while working in ○○○○ Department of Seoul from around April 24, 207. On May 16, 2008, the hospital was discharged from the hospital under medical treatment in order to receive medical treatment upon departure from China, and the hospital was discharged from the hospital under medical treatment. The plaintiff prepared and delivered documents necessary for applying for the payment of honorary retirement allowances (hereinafter "application for voluntary retirement, etc.") to the non-party 2, etc. working in the same division, including the application for the payment of voluntary retirement allowances and the application for the payment of voluntary retirement allowances (hereinafter "voluntary retirement application"), and when wishing the voluntary retirement as a result of medical treatment in China, the plaintiff left China on May 19, 2008.

B. On May 25, 2008, at around 09:34, the Plaintiff delivered Nonparty 1’s intent to apply for the voluntary retirement by telephone to Nonparty 3, who worked at the △△ Headquarters, and at around 15:00 on the same day, requested Nonparty 4, who is an infant, to submit an application for the voluntary retirement, etc. to Nonparty 2. Accordingly, on May 26, 2008, Nonparty 1’s application for the voluntary retirement, etc. was submitted as of June 30, 2008.

C. Nonparty 1 died at around 18:00 on May 26, 2008, and the Defendant issued a disposition to exclude Nonparty 1 from the honorary retirement allowances payment of Nonparty 1 on August 26, 2008 (hereinafter “instant disposition”).

2. Relevant statutes;

(a) Local Public Officials Act;

Article 66-2 (Honorable Retirement, etc.)

(1) Where a person who has served for at least 20 years voluntarily retires before retirement age, honorary retirement allowances may be paid within budgetary limits.

(4) Necessary matters concerning honorary retirement allowances under paragraph (1) shall be prescribed by Presidential Decree.

B. Payment regulations, such as honorary retirement allowances, etc. of local public officials (amended by Presidential Decree No. 21177, Dec. 24, 2008)

Article 3 (Persons Eligible for Honorable Retirement Allowances)

(1) Persons eligible to receive honorary retirement allowances shall be public officials in career service (excluding public educational officials appointed for a fixed period of appointment) who voluntarily retire during the period of not less than one year before the date of retirement, who have served as public officials for not less than 20 years.

Article 13 (Enforcement Regulations)

The calculation of the number of years of service, the selection and examination method of persons eligible for honorary retirement allowances and early retirement allowances, the payment procedure and other detailed matters necessary for the enforcement of this Decree shall be prescribed by the rules of the

(c) Rules on the payment of honorary retirement allowances for local public officials;

Article 6 (Objects of Review of Payment of Honorable Retirement Allowances)

(2) Even where an applicant retires or dies before determining whether to pay an honorary retirement allowance, it shall be included in the subject of examination. In this case, the calculation of the continuous service period, retirement age remainder, etc. shall be based on the date of retirement or death.

Article 9 (Succession to Right to Receive Honorable Retirement Allowances)

(1) In principle, the honorary retirement allowances shall be paid directly to the person in question, but in case where the applicant for the honorary retirement allowances is unable to receive the honorary retirement allowances due to his death or his missing.

3. Whether the disposition is lawful;

A. The parties' assertion

The defendant cannot be deemed to have made a clear declaration of intention of non-party 1 at the time of submission of the application for non-party 1's voluntary retirement, and the payment of voluntary retirement allowances to the person who applied for non-party 1's voluntary retirement due to death does not comply with the fundamental purpose of the voluntary retirement system. Thus, the plaintiff asserted that the disposition in this case is lawful, and the plaintiff and non-party 1 applied for voluntary retirement according to their own will, not by predicting the fact of death, but by their own intent. Meanwhile, the disposition in this case on the ground of non-party 1's death does not comply with the purport of the Rules on the Payment of voluntary retirement allowances for local public officials, etc.

(b) Markets:

(1) Whether there exists a declaration of intention, such as voluntary retirement

As can be acknowledged by the evidence mentioned above, the non-party 1 has already prepared and delivered an application for voluntary retirement, etc. to the non-party 2, etc. before leaving China for the purpose of treatment, and has already entrusted the non-party 1 with the conditional submission according to the progress of treatment. If the application for voluntary retirement is accepted to terminate the status of the public official, it is difficult to voluntarily withdraw the application, but the plaintiff provided the non-party 2, who was originally delegated to the non-party 1's mobile phone as well as the non-party 3 by phone to the △△ Headquarters, and notified the non-party 1 of his intention to apply for voluntary retirement. In light of the above, it is reasonable to deem that the plaintiff's intention to apply for voluntary retirement, which the plaintiff delivered to the non-party 2

(2) Whether it conforms to the intent of the honorary retirement system

Article 66-2 (1) of the Local Public Officials Act provides that an applicant who has served for at least 20 years as a public official voluntarily retires public official for at least one year prior to the retirement date and does not limit the reason or motive of voluntary retirement from the date of death to the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of voluntary retirement from the date of the voluntary retirement from the date of voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement from the date of the voluntary retirement.

In full view of the purport of such a system of voluntary retirement and the provisions or purport of relevant Acts and subordinate statutes, inasmuch as Nonparty 1 voluntarily or voluntarily applied for voluntary retirement regardless of any reason or motive, even if he retired due to a cause not attributable to himself prior to the scheduled date of voluntary retirement, it is reasonable to view that the Defendant should pay the voluntary retirement allowance.

(3) Therefore, the instant disposition is unlawful.

4. Conclusion

Therefore, the plaintiff's claim is accepted.

Judges Kim Hong-do (Presiding Judge)