Whether Article 4(1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, concerning the Conversion into Non-fixed Workers, can be immediately applied to the employment relationship between the State and the assistant who are public officials (negative)

According to Article 2(2)2 of the State Public Officials Act, Articles 2(1)1, 2(3), 8, 26(1), and 34(2) of the Public Educational Officials Act, and Article 5-2(4) of the Decree on the Appointment of Educational Officials, assistant instructors who meet certain qualifications and are appointed by the head of a university according to the prescribed procedures are given to public educational officials under the Public Educational Officials Act or public officials under the State Public Officials Act whose status is guaranteed during the statutory period of service, and fall under public service relations rather than private labor contract relations. As such, assistant instructors who are granted the status of public educational officials or public officials may immediately lose their status upon the expiration of the statutory period of service for one year. In addition, it is reasonable to deem that the term of service of public officials is newly granted by an act of appointment based on the decision-making of the appointment subject to the Public Educational Officials Act, and that the term of service of public officials is unreasonable for the purpose of establishing the Act on the Protection of Employment Conditions of Public Officials as well as by individual public officials enacted pursuant to the Public Educational Officials Act.

Article 2 (2) 2 of the State Public Officials Act, Article 2 (1) 1 and (3), Articles 8, 26 (1), and 34 (2) of the Public Educational Officials Act, Article 5-2 (4) of the Decree on the Appointment of Educational Officials, Articles 3 (3) and 4 (1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, Article 2 (1) 1 of the Labor Standards Act

Supreme Court Decision 2001Du3051 Delivered on November 8, 2002

Plaintiff (Law Firm Han, Attorneys Kim Sung-jin et al., Counsel for plaintiff-appellant)

Republic of Korea (Law Firm Barun Law LLC, Attorneys Jeong Dong-ju et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2015Nu5558 decided August 27, 2015

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. In full view of the adopted evidence, the lower court acknowledged the following facts: (a) on March 1, 2007, the Plaintiff was employed as a national university established and operated by the Defendant as a “permanent contract worker”; (b) on March 1, 2010, the period of service as of March 1, 2010 was the same as that of the previous one year; (c) was appointed as a “special contract worker” of the ○○ University, not as a “permanent contract worker”; and (d) was reappointed from around that time to February 28, 2014; and (e) was notified of the Plaintiff’s retirement on the ground of the expiration of the term of employment on March 1, 2014 by the total head of the ○○ University established and operated by the Defendant on the ground of the expiration of the term of employment; and (e) rejected the Plaintiff’s assertion that the term of employment contract was null and void as of March 1, 2014 as an employee under the proviso to Article 4(2) of the Labor Standards Act.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. Article 2(2) of the State Public Officials Act defines public officials in career service as “public officials who are appointed according to their performance and qualification, whose status is guaranteed, and who are expected to serve as public officials during their lifetime (in the case of public officials appointed for a fixed period of time, referring to such period of time).” Article 2(2) of the State Public Officials Act explicitly provides that public officials in special service shall belong to such public officials in special service. In addition, Article 2(3) of the Public Educational Officials Act provides that public educational officials shall be appointed as public officials in special service for the purpose of providing for special cases concerning the qualification, appointment, remuneration, training, guarantee of status, etc. of public educational officials. Furthermore, Article 2(1)1 of the Public Educational Officials Act provides that public educational officials in special service shall be appointed as one of public educational officials (Article 2(1)1 of the Higher Education Act); Article 2(2) of the Public Educational Officials Act provides that “The appointment of public educational officials in special service, including teaching assistants, shall require qualification under the Higher Education Act (Article 8).”

According to the above provisions, assistant instructors appointed by the head of a university or college according to a prescribed procedure is granted the status of public educational officials under the Public Educational Officials Act or public officials in special service under the State Public Officials Act whose status is guaranteed during the statutory period of service, and their employment relationship falls under public law, not private law. As such, assistant instructors granted the status of public educational officials or public officials in special service may lose their status immediately upon the expiration of the statutory period of service for one year, and in order to again acquire their previous status after the expiration of the above period of service, they need to be newly granted the status of public officials by an appointment based on the decision-making process of the appointing entity. Furthermore, with respect to assistant instructors who are public officials by the application of the Public Educational Officials Act or the State Public Officials Act with regard to the working conditions such as remuneration for assistant instructors, it is reasonable to determine the scope of their rights and duties under the Act on the Protection of Workers under the Labor Standards Act for a fixed period of 10 years, instead of the statutory period of service of public officials or public officials in special service.

B. According to the records, the defendant consistently asserted to the effect that the plaintiff acquired the status of a state public official when he was appointed as a "assistant" during the trial of the court below, and the court below also recognized the fact that the plaintiff was reappointed on a yearly basis since the plaintiff was appointed as a "assistant," not as a professional contract of the court below as of March 1, 2010.

If so, the lower court should have further examined whether the Plaintiff was appointed as a “assistant” and actually acquired the status of a public educational official or a state public official, and should have determined on the basis of this, whether Article 4(1) and (2) of the Fixed-term Workers Act can be applied to an employee whose period is not fixed even after the Plaintiff was appointed as a “school assistant,” and whether the Plaintiff’s notice of retirement on or around March 1, 2014 to the Plaintiff was merely a mere notification of the fact that the period of service expired, rather than a dismissal that unilaterally loses the Plaintiff’s previous service relationship.

C. Nevertheless, without examining the aforementioned circumstances, the lower court determined that the Defendant’s notification of his/her retirement to the Plaintiff on or around March 1, 2014 under the premise that Article 4(1) and (2) of the Fixed-term Act applies to the Plaintiff without examining the aforementioned circumstances is unfair and invalid. In so doing, the lower court erred by misapprehending the legal doctrine on the status of “abstinence” affiliated with the national schools and the application of Article 4(1) and (2) of the Fixed-term Act, and by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)