(영문) 서울행정법원 2011.9.8. 선고 2011구합16636 판결

1. On May 23, 2011, the Defendant’s ex officio revocation of the insured status of each employment insurance against the designated parties listed in the Plaintiff (Appointed Party) and the separate list of designated parties shall be revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. Twelve (hereinafter referred to as "Plaintiffs, etc.") entered in the separate sheet including the plaintiff (appointed party; hereinafter referred to as "Plaintiffs, etc.") have entered into an employment contract with the Seoul Special Metropolitan City on March 1, 2007 and on April 1, 201 of the same year and have renewed the employment contract every year while serving as a public official in a local contract. On March 1, 2011, the new contract period is from the same date to February 29, 2012, with the content that the average working hours per week are 20 hours from the same date, and then, from the Road Traffic Headquarters B of Seoul Metropolitan City, the contract contract for a public official in a local contract with the part-time public official (e) of a local contract with the part-time public official (e).

B. On April 14, 201, the Seoul Special Metropolitan City Mayor filed an application with the Defendant for purchase of employment insurance by the Plaintiff, etc. (hereinafter “instant application for purchase”), and around that time, the Plaintiff, etc. acquired the insured status. However, on May 23, 201 of the same year, the Defendant revoked the insured status of the Plaintiff, etc. ex officio on the ground that, in the case of a public official in contractual service, he/she must file an application for purchase of employment insurance within three months from the date of appointment pursuant to Article 3-2(2) of the Enforcement Decree of the Employment Insurance Act in the case of the Plaintiff, etc., he/she shall file an application for purchase of employment

[Ground of recognition] Facts without dispute, Gap evidence 1-1 to 12, Gap evidence 2, 3, Gap evidence 4-1 to 12, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Where a public official in contractual service enters into an employment contract again after the expiration of the existing contract term, his/her status as a public official under the existing contract terminates upon the expiration of the contract term and acquires his/her status as a public official pursuant to the newly concluded employment contract. Therefore, even if the plaintiff et al. entered into the employment contract on March 1, 2007 and April 1 of the same year, if he/she newly entered into the employment contract of this case after the expiration of the contract term, it constitutes "the date of appointment under Article 3-2 (2) of the Enforcement Decree of the Employment Insurance Act after the expiration of the new contract term," and if the application for subscription of this case was filed within three months thereafter, the plaintiff et al. lawfully acquired the employment insurance. Therefore, the defendant's disposition based on

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) The Employment Insurance Act, which aims to prevent unemployment, promote employment, develop and improve the vocational ability of workers through the enforcement of employment insurance, strengthen the State’s vocational guidance and job placement services, and promote the livelihood stability and job-seeking activities of workers by providing unemployment benefits when they are unemployed, provides that public officials excluded from the application of the State Public Officials Act and the Local Public Officials Act pursuant to Article 10 subparag. 3, as amended by Act No. 8959, Mar. 21, 2008; provided, however, that public officials in extraordinary civil service and contractual service may subscribe to employment insurance at their own will, as prescribed by Presidential Decree. As such, Article 3-2(1) and (2) of the Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree”) amended by Presidential Decree No. 21015, Sept. 18, 2008;

(hereinafter referred to as "public official subject to subscription") is appointed, the head of the administrative agency to which the public official subject to subscription belongs (hereinafter referred to as "affiliated agency") shall, without delay, confirm his/her intention pursuant to the proviso of Article 10 subparagraph 3 of the Employment Insurance Act, and shall apply to the public official subject to subscription to employment insurance with the head of the employment security office having jurisdiction over the location of the affiliated agency within three months from the date of appointment of the public official subject to subscription, but if the public official so wishes, he/she may directly apply for subscription for the same period. In addition, according to Articles 1 and 5 of the Addenda of the Enforcement Decree, the amended provisions of Article 3-2 of the Enforcement Decree shall enter into force from September 22, 2008, and for those who are in extraordinary civil service or contractual service at the time of the enforcement of the Enforcement Decree, the enforcement date of Article 3-2

Meanwhile, Article 2(3)3 of the Local Public Officials Act provides that public officials engaged in duties that require expertise and skills or that require flexibility, etc. in appointment in accordance with their employment contracts with local governments shall be classified as public officials in contractual service by stipulating that public officials engaged in duties that require flexibility, etc. in appointment shall be classified as public officials in special career service. According to Articles 5(1), 6(1), and 7 of the Regulations on Public Officials in Local Contract Service, the head of a local government may appoint public officials in local contract based on their employment contracts within the scope of their quota and budget (Provided, That part-time public officials in contractual service shall be within the scope of budget) within the scope of their budget, but the period of appointment of public officials in local contract service shall be the period necessary for performing the relevant duties within the scope of their year, when the need to maintain contract projects or contract positions ceases to exist, or when public officials

According to the contents and forms of the above provisions of the Local Public Officials Act and the Local Contract Public Officials, a public official in a local contract who is employed under an employment contract with a certain period of time, unlike a public official who takes office or acquires the status of a public official by being elected.

As such, when the period of employment prescribed in the employment contract expires, a local contract officer shall lose his/her status, and in such cases, whether to renew his/her employment contract or extend the period of employment shall be deemed to be entrusted to the discretion of the head of the local government.

Therefore, with respect to a person who serves as a public official subject to employment insurance at the time of September 22, 2008, which is the enforcement date of Article 3-2 of the Enforcement Decree of the amended Act as of September 18, 2008, as of September 22, 2008, when the employment period stipulated in the employment contract expires without the application for subscription of the head of the affiliated agency or the public official subject to employment insurance in the local contract, he/she shall be deemed to lose his/her status as a public official in the local contract. Therefore, if a new employment contract was concluded at the discretion of the head of the local government thereafter, the date on which the new employment contract was concluded shall be deemed to be the date on which he/she is appointed as a public official subject to insurance as prescribed in Article 3-2 (2) of the Enforcement

(2) In light of the above legal principles, even if the plaintiff et al. entered into an employment contract with the Seoul Special Metropolitan City and the local contract-based public official around 2007 for the first time, they again entered into the instant employment contract after the termination of the employment period stipulated in the employment contract, and thus, " March 1, 201," which is the contract date, constitutes "the appointment date for the public official subject to joining" as stipulated in Article 3-2 (2) of the Enforcement Decree, and the application for joining the instant case made on April 14, 200 to be within three months thereafter, shall be deemed to have complied with the application period stipulated in the above Enforcement Decree. Therefore, the instant disposition made on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.