Attached 1. List 62, 178, and 228 of the plaintiffs' list is as shown in attached Table 1.

Attached 1. Attached 1. List 24 of the plaintiffs

Attached 1. Of the plaintiffs' list, the remaining records except for Nos. 24, 62, 178, 228 are as shown in the plaintiffs' list. Other 237 others (Law Firm Lee & Lee, Attorneys Park Ho-kon, Counsel for defendant-appellant)

Seoul Special Metropolitan City (Law Firm Shin & Lee, Attorneys Lee Young-jin, Counsel for defendant-appellant)

Seoul Central District Court Decision 2009Kahap13730 Decided November 17, 2011

August 17, 2012

1. Revocation of a judgment of the first instance;

2. The case shall be transferred to the Seoul Administrative Court.

1. Purport of claim

The defendant shall pay to the plaintiffs 2. The amount of money with 20% per annum from June 2, 2010 to the date of full payment ( plaintiffs 24, 62, 178, and 228 extended the purport of the claim in the trial) with respect to each of the above amounts and each of the above amounts.

2. Purport of appeal

Of the judgment of the court of first instance, the part against plaintiffs 62, 178, and 228 in the judgment of the court of first instance shall be revoked. The defendant shall pay to plaintiffs 62, 178, and 228 1,00,000 won per annum from June 2, 2010 to the judgment of the court of second instance, and 20% per annum from the next day to the date of full payment.

Plaintiff 24: The part against Plaintiff 24 in the judgment of the first instance shall be revoked. The Defendant shall pay to Plaintiff 24 11,273,550 and 5% per annum from June 2, 2010 to the judgment of the second instance of this case, and 20% per annum from the next day to the date of full payment.

The part against the defendant in the judgment of the court of first instance shall be revoked. The remaining plaintiffs' claims except the plaintiffs 62, 178, 228 shall be dismissed.

1. Basic facts

A. The Plaintiffs are fire officers who work or retired while serving in each fire station under the Defendant’s jurisdiction. The Plaintiffs are public officials in general service, who are classified as “persons subject to actual service” due to the nature of their duties that must cope with emergency situations, such as fire and disaster, unlike public officials in general service.

B. The non-permanent fire officers work in the fire station in the form of two or three bridges a day, two workers who work in the two-day course are divided into two groups, one day work in the form of 24 hours a day and one day work in the form of rest, three workers who work in the three groups a day work in the form of rest, and one Article is divided into three groups, and two hours a day work in the three group from 09:00 to 18:00 a day, and two hours a day work in the form of 15 hours a day work from 18:00 to 09:00 a day, and three hours a day work in the form of rest after leaving 09:00 each.

C. Accordingly, the employees working for the third class workplace shall work for about 240 hours each month (=24 hours x 30 days x 30 days / 3) and work for about 48 hours per month for about 192 hours, which are the average working hours of the public officials stipulated in the Local Public Officials Service Regulations (=240 hours - 192 hours). The two class workers work for about 360 hours each month (=24 hours x 30 days x 30 days / 2), and have them work for about 168 hours per month over the average working hours (=360 hours - 192 hours), and have them work for night or on holidays.

D. Details of the provisions related to overtime work, night work, and holiday work allowances (hereinafter “excess work allowances”) among the guidelines for handling local public officials’ remuneration, etc. established by the Minister of the Interior and Safety (hereinafter “instant guidelines”) are as shown in the attached Table 3.

E. Based on the instant treatment guidelines, the Mayor of Seoul Special Metropolitan City set the “plan for improvement of treatment of field activities fire officers” (hereinafter “the plan for improvement of treatment”) which provides that overtime work allowances shall be paid within the limit of 75 hours a month from April 1, 201 to April 1, 2001, and paid the level of overtime work allowances below the actual working hours of the Plaintiffs.

F. Based on the fire officer service regulations, the Defendant implemented the “net leave duty system” that sets forth the sequence for fire officers who work for the second class from June 3, 2003 to take the first time a month on the basis of the fire officer’s service regulations, and implemented it on September 1, 2007 by expanding the number of times from September 1, 2007.

G. Relevant statutes

Attached 4. The entry in the relevant statutes are as follows.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, Eul evidence Nos. 1, 4 and 5 (including each number), the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiffs' assertion

1) Korea has dealt with matters that should be dealt with as a party suit in public law in accordance with the comparison of the distinction between the Construction Act and the Construction Act. In particular, there have been precedents that dealt with as a civil suit in relation to the excess service allowance claim of local government officials, and the plaintiffs of this case also claim excess service allowance as public officials of local government, and therefore, it is also necessary to examine

2) The Plaintiffs not only worked much more than working hours under the Local Public Officials Service Regulations while serving in the two or three major positions, but also worked at night or on holidays, but the Defendant paid overtime work hours only during the actual overtime work hours, citing budgetary reasons. Therefore, the Defendant is obliged to pay the Plaintiffs the difference between the amount calculated by subtracting the fixed overtime work hours from the actual overtime work hours and the delay damages therefrom.

B. Defendant’s assertion

1) The legal relations between the plaintiffs and the defendant are so-called special power relations under public law, and the right to claim excess allowance is a right under public law, so a lawsuit related thereto shall be processed by the party litigation procedure under Article 3 subparag. 2 of the Administrative Litigation Act, as a lawsuit for claim for payment of money under public law. Accordingly, the lawsuit in this case shall be dismissed.

2) Articles 15 through 17 of the former Regulations on Allowances, etc. for Local Public Officials stipulate that overtime work hours, night work hours, and holiday work allowances shall be paid within budgetary limits. Article 15(6) of the said Regulations delegates to the head of a local government for the payment standards of overtime work allowances and the payment method thereof to the extent determined by the Minister of the Interior and Safety. Article 17(3) of the said Regulations delegates to the Minister of the Interior and Safety for the designation of the Minister of Public Administration and Security. According to such comprehensive delegation, the instant treatment guidelines established by the Minister of the Interior and Security and the instant treatment improvement plan established by the Seoul Special Metropolitan City Mayor are effective as the delegated matters. In addition, since the instant treatment guidelines established by the Minister of the Interior and Security and the instant treatment improvement plan established by the Seoul Special Metropolitan City Mayor were established by comprehensively taking into account the actual working hours, budgetary circumstances of the current workers, equity with public officials in general service, nature of overtime work allowances, and all other circumstances, the Defendant is obliged to pay overtime work allowances beyond the aforementioned guidelines and treatment methods.

Even if the overtime work allowance should be paid for the part beyond the instant processing guidelines, the overtime work hours should be calculated on the basis of actual working hours excluding approximately three hours of water surface hours, meal hours, break time, etc., and the number of hours of leave pursuant to the implementation of the instant processing system should also be excluded from the actual working hours.

3. The judgment of this Court

A. The nature of the lawsuit in this case

1) Article 3 Subparag. 2 of the Administrative Litigation Act provides that a party lawsuit is “a lawsuit in respect of a legal relationship based on an administrative agency’s disposition, etc. and other legal relations under public law, in which case one of the parties to such legal relations is the defendant.” In this context, “legal relations based on an administrative agency’s disposition, etc.” refers to the legal relations arising, altered, or extinguished by the disposition, etc., and “other legal relations based on public law” refers to the legal relations governed by the public law, which are not based on the disposition, etc. of the administrative agency. Both a civil lawsuit and a party lawsuit are the same in that both parties’ equal existence exist, and the exercise of public power is not a dispute. However, a party lawsuit is different in that the legal relationship subject to it is against the legal relations under public law

In this case, the legal relationship between the plaintiffs and the defendant is a so-called special power relationship, and whether to recognize the plaintiffs' excessive service allowances to any extent shall be determined by the interpretation of the statutes governing public law relations, such as the Local Public Officials Act, the Local Finance Act, the Local Public Officials' Remuneration Regulations, the former Local Public Officials' Allowances, etc., the Local Public Officials' Service Regulations, the Service Regulations, the Fire Officials' Service Regulations, and the Rules on Service of Fire-Fighting Officials, etc. In particular, according to the above provisions, the above provisions stipulate that the plaintiffs shall be paid "in the budget" and the excess service allowances to the plaintiffs are provided within the scope of the budget, and special public law factors unlike the duty of monetary payment between private persons are different from the duty of private persons, the above case constitutes litigation on legal relations

2) On the grounds of the Supreme Court Decision 2005Da9227 Decided September 10, 2009 (hereinafter “first instance case”), the Plaintiffs asserted that the Supreme Court has dealt with the excessive work allowance claim lawsuit against public officials of local governments as civil litigation. In the first instance court case, it is inappropriate for our Supreme Court to generalize that the excessive work allowance lawsuit against public officials of local governments is regarded as civil litigation on the grounds of precedents, on the grounds of the Supreme Court Decision 2005Da9227 Decided September 10, 2009 (hereinafter “first instance case”). Accordingly, the Plaintiffs’ above assertion is without merit.

(b) Actual benefits of a party suit;

(2) A party suit may be joined in a party suit, but a party suit may not be joined in a civil suit (Articles 10 and 44(2) of the Administrative Litigation Act). (4) Although an administrative agency may participate in a party suit, the principle of ex officio examination may be applied in a civil suit, while the principle of pleading may be applied in a civil suit (Articles 26 and 44(1)6 of the Administrative Litigation Act).

In addition, since March 1, 1998, the administrative litigation has also been tried in the third instance, and the disadvantage in the instance has been eliminated, the establishment of the district court and the administrative court that is the same as the case is required to take into account the specificity and specialty of the administrative case along with the establishment of the district court and the administrative court, and our society has developed and changed into a highly industrial society, expanding the administrative demand in quantity and quality, resulting in the expansion of its territory, the form of administrative action inevitably diversified and accordingly the litigation on legal relations in the public law has become unable to have expertise. Accordingly, this case is not only more beneficial benefit to be dealt with by the party litigation procedure in the administrative litigation procedure in the public law, but it does not cause any special disadvantage to the original and the defendant.Now, it is determined that the period for proper treatment has arrived by comparing the civil litigation and the party litigation.

C. Sub-decision

Therefore, the instant lawsuit is a party suit under public law and is subject to the exclusive jurisdiction of the administrative court. As such, the Seoul Administrative Court, which is the administrative court having jurisdiction over the Defendant’s general forum, is the Seoul Administrative Court. However, since the instant lawsuit is filed with the Seoul Central District Court without jurisdiction and is in violation of the exclusive jurisdiction, it shall be transferred to the Seoul Administrative Court, which is the competent court, pursuant to Article 7 of the Administrative Litigation Act and Article 34(1) of the Civil Procedure Act (see Supreme Court Decision 2008Da6328, Jul. 29, 2010

4. Conclusion

Therefore, the judgment of the first instance court is erroneous in violation of the exclusive jurisdiction, and it is revoked, and it is decided to transfer the case to the Seoul Administrative Court which is the competent court.

[Attachment]

Judges Yellow-Hahn (Presiding Judge) Kim Dong-dong