[1] In a case where the period of suspended sentence has expired when a police officer who retired ipso facto after being suspended from his/her position due to the suspension of qualification or heavier punishment during the suspension of qualification or heavier punishment was reinstated, whether the status of police officer is recovered

[2] Whether Article 7 (2) 5 and Article 21 of the Police Officers Act are unconstitutional (negative)

[1] If a police officer falls under disqualifications for appointment as provided by Article 7 (2) 5 of the Police Officers Act by being sentenced to the suspension of qualification or a heavier punishment during his/her service, the police officer shall automatically lose his/her status as a police officer on the date when the judgment of the suspension of appointment becomes final and conclusive without waiting a separate act (the act of losing his/her status as a public official) by the appointing authority (the act of losing his/her status) under Article 21 of the same Act, and even after the expiration of the period of the suspension of sentence (2 years) later, he/she shall not automatically lose his/her status as a police officer. On the other hand, the removal from his/her position does not lose his/her status as a police officer upon the occurrence of a cause as provided by each subparagraph of Article 73-2 (1) of the State Public Officials Act, such as a criminal prosecution, and the removal from his/her position is a disposition not assigning his/her position again to a public official who is removed from his/her position when the cause for dismissal ceases.

[2] Article 3(1) and Article 69 of the State Public Officials Act and Articles 7(2) and 21 of the Police Officers Act provide that those who are disqualified after being appointed as State public officials (including police officials) shall not be appointed to the State public officials (including State public officials). If such persons are allowed to retire ipso facto, the purpose of Article 3(1) and 33(2) of the State Public Officials Act is to secure the public trust in public service by removing those who are disqualified from the performance of public service, and thus, the State public officials are liable to the public as servants of the whole (Article 7(1) of the State Public Officials Act). Since the provision of Article 1 of the State Public Officials Act and Article 7(2) and Article 21 of the Act provides that the State Public Officials shall not be appointed to the State public officials (Article 63 of the State Public Officials Act) and that the provision of suspension of qualifications and other reasons for disqualifications of qualifications of police officials shall be more than those of the State Public Officials Act, and thus, it is reasonable to extend the provision of suspended sentence or more than those of this Act.

[1] Articles 7(2)5 and 21 of the Police Officials Act, Article 73-2 of the State Public Officials Act / [2] Articles 33(1) and 69 of the State Public Officials Act, Articles 7(2)5 and 21 of the Police Officials Act, Articles 7(2), 10, 11(1), 12(1), 25, and 27(1) of the Constitution

[1] Supreme Court Decision 86Nu459 delivered on April 14, 1987 (Gong1987, 826), Supreme Court Decision 91Nu2687 delivered on January 21, 1992 (Gong1992, 925) Supreme Court Decision 95Nu5905 delivered on October 12, 1995 (Gong1995Ha, 3800 delivered on November 21, 1995), Supreme Court Decision 95Nu914 delivered on December 27, 1996 (Gong196Sang, 1141)

Plaintiff (Attorney Choi Jin-soo et al., Counsel for plaintiff-appellant)

Korea

Seoul High Court Decision 95Gu26164 delivered on January 30, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

If a police officer falls under disqualifications for appointment as provided in Article 7 (2) 5 of the Police Officers Act by being sentenced to the suspension of qualification or a heavier punishment during his/her term of office, a disposition not to assign a position to the pertinent public official is taken again under the provisions of Article 73-2 (2) 2 of the State Public Officials Act on the day when the judgment of the suspension of appointment becomes final and conclusive without waiting a separate act (the act of losing the status of a public official) by the person having authority for appointment. Even if the period of suspension of sentence (2 years) has expired later, the validity of the suspension of sentence already occurred is not terminated, and the status of a police officer is not restored (see Supreme Court Decision 95Nu5905 delivered on October 12, 195). Meanwhile, the disposition of removal from office is taken when there is a cause as provided in each subparagraph of Article 73-2 (1) of the State Public Officials Act, such as a criminal case, and the disposition of reinstatement is taken again by a public official who is dismissed from his/her position.

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff, a police officer, was released from his position on November 25, 1987 when he was detained for the acceptance of bribe on November 16, 1987, and applied for reinstatement on April 6, 198 after he received a final judgment of suspension of qualification for one year on March 24, 1988. The court below determined that the plaintiff was reinstated on the 12th of the same month without knowing that the criminal judgment attached to the application for reinstatement was modified by a judgment of suspension of qualification for a fine of KRW 300,000, and that the plaintiff was subject to a suspended suspension of qualification for the plaintiff on April 17, 1995, and that the plaintiff was automatically subject to a suspended sentence of suspension of qualification for the plaintiff on November 25, 1987, and that there was no reason for alteration of the judgment of suspension of qualification for the plaintiff, or that there was no error in the misapprehension of legal principles as seen above, or that the plaintiff had already been reinstated for a police officer during seven years after his retirement.

In addition, Articles 33(1) and 69 of the State Public Officials Act and Articles 7(2) and 21 of the Police Officials Act provide that a person who is disqualified after being appointed as a State public official (including police officials) shall not be appointed as such (including State public officials) and that a person would be retired ipso facto, with the aim of ensuring the public trust in public service by excluding such a person from the performance of public service, as well as in the State’s public service. Since Article 33(1) and 69 of the State Public Officials Act and Article 7(2) and Article 21 of the Act provide that the State Public Officials shall not be appointed as State Public Officials, and that if such person is disqualified after being appointed as State Public Officials (including police officials), the State Public Officials shall be held liable for the suspension of qualifications for the whole public service (Article 63(1) of the State Public Officials Act) and the provisions of Article 7(2) of the State Public Officials Act that stipulate that the suspension of qualifications and qualifications of public officials shall be excluded from the suspension of qualifications for more than those of qualifications and those of sentence.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)