[1] Legal status of conditional public officials under the former State Public Officials Act and whether Article 33 of the former State Public Officials Act, which provides for the grounds for disqualification for appointment of public officials, applies to conditional appointment (affirmative)

[2] The validity of the act of appointing a disqualified person as a public official (negative) and whether the defect is cured if the appointment authority knew of the grounds for disqualification at the time of conditional appointment or is appointed as a regular public official after the extinction of the grounds for disqualification (negative)

[3] The legal nature of revocation of appointment of a disqualified person as a public official, and whether the principle of trust in the revocation thereof or the principle of legal interest bridge is applied (negative)

[4] Where a person who is appointed as a conditional public official is appointed as a regular public official after the expiration of the conditional term of appointment, the standard time to determine the validity of the appointment of a regular public official (if an appointment

[5] Where a person who was disqualified for appointment as a public official at the time of appointment as a conditional public official was appointed as a regular public official after the expiration of the conditional term of appointment, but there is no ground for disqualification at the time of appointment as a regular public official, whether the regular public official

[1] According to the provisions of Articles 28(1) and 29(1) and (4) of the former State Public Officials Act (amended by Act No. 2460 of Feb. 5, 1973), Article 23(1) and (2) of the former Decree on the Appointment of Public Officials (amended by Presidential Decree No. 6258 of Jun. 28, 1972), and Article 64 of the Court Officials Rules (amended by Supreme Court Rules No. 253 of May 1, 1965) of the former State Public Officials Act, if there is a person who is judged to have failed to meet the eligibility of a public official through an open competitive examination or special employment examination, taking into account the fact that it is difficult to fully demonstrate the duty of a public official to perform the duty of a public official, the exclusion is easily made to accomplish the principle of sexualism, and a person employed under such conditional appointment is naturally subject to the above provision of the former State Public Officials Act, with the exception of the remaining duties of a public official during the term of appointment.

[2] The grounds for disqualification for appointment as a public official prescribed in the State Public Officials Act are absolute passive requirements to be appointed as a public official, and if there were grounds for disqualification at the time of conditional appointment, the appointment act is null and void as a matter of course. Therefore, the defects in the qualifications for appointment as a public official are not of such nature that the appointment authority was aware of the existence of the grounds for disqualification for appointment as a public official at the time of conditional appointment, or actually worked as a public official after the appointment authority became aware of

[3] The appointment authority did not know that a person who is disqualified for appointment as a public official was disqualified and then found that there was a ground for disqualification after being appointed as a conditional public official, and the revocation of a conditional appointment is merely an act of notifying and confirming that the conditional appointment was void from the beginning to the beginning. Therefore, when cancelling a conditional appointment in the sense of confirming that such conditional appointment is invalid, the principle of trust or the principle of legal benefits and aids applied to cancellation of a beneficial administrative act cannot be applied.

[4] Article 29 (3) of the former State Public Officials Act (amended by Act No. 2460 of Feb. 5, 1973) provides that "a person whose appointment period expires shall be deemed to have been appointed as a regular public official on the day on which the former term of appointment expires." However, Article 29 (3) of the former State Public Officials Act provides that "if a person is newly employed as a public official, he/she shall be appointed on a conditional basis for six months, and if his/her service performance is good during that period, he/she shall be appointed as a regular public official." In addition, the appointment of a conditional public official clearly separates the appointment and appointment of a regular public official from the regular public official, and the appointment authority acquires the right to be appointed as a regular public official immediately after the expiration of the conditional appointment period, and the appointment authority bears the legal duty to appoint a regular public official in response thereto. In light of the fact that Article 29 (3) of the same Act provides that if a person among the conditional employment period fails to meet the qualifications of a regular public official, the appointment period can be determined as a regular public official.

[5] Where a person who was disqualified for appointment as a public official at the time of conditional appointment has expired, but there is no ground for disqualification at the time of appointment as a regular public official, the ground for disqualification may affect the validity of appointment as a regular public official in that it does not constitute a public official’s work experience due to lawful conditional appointment, even if he/she worked as a public official during the conditional appointment period. However, the defect of such appointment is ultimately a defect of appointment as a conditional public official under the law, which is merely a defect of appointment as a new regular public official without undergoing the conditional appointment period, and it is not a reason for disqualification, regardless of the fact that it is a defect of appointment as a new regular public official without undergoing the conditional appointment period.

[1] Articles 28(1) and 29(1) and (4) of the former State Public Officials Act (amended by Act No. 2460 of Feb. 5, 1973), Article 23(1) and (2) of the former Decree on the Appointment of Public Officials (amended by Presidential Decree No. 6258 of Jun. 28, 1972), Article 64 of the Court Rules (amended by Supreme Court Rules No. 253 of May 1, 1965) / [2] Article 33(1)4 of the former State Public Officials Act (amended by Act No. 2460 of Feb. 5, 1973), Article 19 of the Administrative Litigation Act / [3] Article 33(1)4 of the former State Public Officials Act (amended by Act No. 2460 of Feb. 5, 1973); Article 33(1)4 of the former State Public Officials Act (amended by Act No. 975 of Feb. 19, 2097)

[1] Supreme Court Decision 98Nu4758 delivered on September 25, 1990 (Gong1990, 2174); Supreme Court Decision 90Nu9391 delivered on November 8, 1991 (Gong1992, 124) / [3] Supreme Court Decision 86Nu459 delivered on April 14, 198 (Gong1987, 826) / [5] Supreme Court Decision 98Du12932 delivered on October 23, 1998 (Gong198Ha, 2790)

Plaintiff (Attorney Nowon-won et al., Counsel for plaintiff-appellee)

The Minister of Court Administration

1. The Defendant’s correction, cancellation, or additional disposition on April 29, 198 against the Plaintiff, of each salary grade stated in the details of the correction of the salary grade, shall be revoked in its entirety.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit are divided into two parts, one of which shall be borne by the defendant, and the other by the plaintiff.

The Seoul High Court Order No. 1 and the defendant's decision as to April 29, 1998 was revoked the revocation of the conditional vehicle driving appointment disposition against the plaintiff as of September 7, 1971 as of September 23, 197.

1. Details of the disposition;

The following facts are acknowledged in light of the whole purport of the pleadings in the statement Nos. 1 through 4, 7, 8, 6-1 through 3, and 1, and No. 6-1.

A. On September 7, 1971, the Plaintiff was appointed under the conditional appointment of the number of vehicles as public officials in technical service belonging to the above court as Seoul High Court No. 23 on September 7, 1971, and six months passed since the conditional appointment period for the above court personnel class No. 5 on March 8, 1972, and thereafter, the Plaintiff was appointed as a regular public official of class 10 on February 27, 1993 as the above court personnel class No. 36 on February 27, 1993, and was appointed as a public official in special service belonging to the Supreme Court as the Supreme Court No. 36 on March 1, 193, the Plaintiff retired from the Seoul District Court as of March 1.

B. At the time of appointment as a public official in extraordinary civil service, the Plaintiff continued to raise the court period after adding up the period of service after the above conditional appointment in accordance with the Public Officials Remuneration Regulations and continued to raise the salary class 7th grade, and as a result, the Plaintiff was given the same salary class as the “previous salary class” column among the details of the correction of the attached salary class. On February 24, 1998, the Defendant was notified by the Ministry of Government Administration and Home Affairs of the person suspected of being disqualified for appointment as a public official on February 26, 1970 and discovered the fact that the Plaintiff was sentenced to one year of the suspension of the execution of six months of imprisonment without prison labor for occupational injury and death on March 6 of the same year.

C. Accordingly, on April 29, 198, the defendant issued a corrective disposition to correct, add, or revoke the salary class of the existing special service official granted by the plaintiff by excluding the above service period, such as the statement in the column of "after correction of salary class", on the ground that the calculation of salary class after being appointed as a public official in extraordinary service was added to the service period of a public official in technical service due to the act of conditional appointment, and thus, it is erroneous for the defendant to exclude the above service period as stated in the column of "after correction of salary class" from the above service period.

2. Whether the disposition is lawful;

A. Part on revocation of conditional appointment

(1) The plaintiff's assertion

(1) The plaintiff's act of appointing authority at the time when the Seoul High Court knew that the plaintiff's ground for disqualification ceases to exist on March 6, 1972, and decided that the plaintiff's act of appointing a public official should be considered as a public official, and it is not possible to appoint the public official as a public official because it was sentenced one year to a suspended sentence of six months on March 6, 1970. However, the Seoul High Court, which was the appointing authority at that time, knew that the plaintiff's ground for disqualification ceases to exist as of March 6, 1972, and decided that the plaintiff should work as a regular public official, and the plaintiff should work first on the condition that the plaintiff should be appointed as a regular public official for the convenience of the procedure, and the plaintiff should be considered as a conditional driver appointment under private law instead of a public official. Thus, it is not possible that the State Public Officials Act on the appointment of a public official is applied to the above conditional appointment as a public official, and it is unlawful for the defendant's act of cancelling the appointment of the plaintiff.

(2) Determination:

(2) According to Article 28(1) and (4) of the Act, which is applicable to the appointment of the Plaintiff at the time of conditional appointment, and Article 23(1) and (2) of the former Decree on the Appointment of Public Officials (amended by Presidential Decree No. 6258, Jun. 28, 197) and Article 64 of the Rules on the Appointment of Court Officials (amended by Presidential Decree No. 253, May 1, 1965), the appointment of public officials shall be based on an open competitive examination and special employment examination, and if a public official of Grade 3 or lower is newly appointed, the provision on the status guarantee shall not apply to the public officials during the period of conditional appointment, but to the effect that the above conditional appointment is not applicable to the above conditional appointment. This provision on the appointment of public officials, excluding the above conditional appointment of public officials, is not applicable to the appointment of 9 years after the date of conditional appointment, and the appointment authority shall not apply to the remaining appointment of public officials whose work performance is not easily determined by the court.

B. The part on the corrective disposition of salary class

(1) The parties' assertion

Next, the plaintiff was cured of the defects of the above conditional appointment, and the defendant's revocation of the above conditional appointment violates the principle of trust or the principle of legal interest and interest, and thus the defendant's revocation of conditional appointment itself is illegal, and thus, the defendant's correction of salary class of the plaintiff is illegal. ② Even if the above conditional appointment cancellation disposition is legitimate and correct, the cancellation of appointment should be limited to the appointment of conditional public officials. The plaintiff's cancellation of appointment should be limited to the appointment of conditional public officials, and there was no defect in the appointment because it had already ceased at the time of the appointment of the new regular public official as of March 8, 1972 at the time of the appointment of the new regular public official as of March 8, 1972. Thus, the period of employment after the appointment of the regular public official should be added to the determination of the plaintiff's salary class. However, the defendant's correction of salary class of the plaintiff's whole period of service on the premise that it is unlawful.

The defendant asserts that the appointment of a public official employed by conditional appointment is a regular public official as a matter of course without a separate personnel order at the expiration of the conditional employment period, and the appointment of a regular public official as a regular public official is merely a mere act to confirm that the plaintiff acquired the status of a public official whose status was fully guaranteed by the restriction on status guarantee imposed during the conditional employment period because the plaintiff was disqualified at the time of conditional appointment, and as long as the appointment of a conditional public official is void as the act of appointment of the conditional public official is invalid as a matter of course, the career of the public official from that time to the time of his/her retirement is all extinguished, and therefore, the disposition to correct the issuance of a salary order to correct it is legitimate.

(2) Determination:

First of all, since the defendant's conditional cancellation disposition is justified, the plaintiff's assertion based on the premise that the above disposition is unlawful is not acceptable. Next, it is argued that at least the part of public official's career after being appointed as a regular public official should be included in the calculation of the plaintiff's salary

Article 29(3) of the Act provides that "a person whose conditional appointment period has expired shall be deemed to have been appointed as a regular public official on the date of the expiration thereof." However, Article 29(3) of the Act provides that "if a public official is newly appointed, he/she shall be appointed for a six-month period, and if his/her service performance is well available during that period, he/she shall be appointed as a regular public official." Thus, the appointment of conditional public officials and regular public officials shall be clearly distinguished, unless there are special circumstances, and as seen above, a person employed by conditional appointment shall acquire the right to be appointed as a regular public official immediately after the termination of the conditional appointment period and immediately after the termination of the conditional appointment period, and the appointing authority shall merely assume the legal duty to be appointed as a regular public official in response thereto, and if it is deemed that a public official during the conditional appointment period fails to be qualified as a public official, the appointing authority shall not be deemed to have obtained the status of the regular public official at the time of appointment as a regular public official.

On March 8, 1972, which the plaintiff was appointed as a regular public official of Grade 10 in technical service, after one year from the expiration of the plaintiff's probation period, the records of the plaintiff's imprisonment without prison labor or heavier punishment cannot be deemed to constitute grounds for disqualification as prescribed by Article 33 (1) 4 of the Act in relation to the above regular public official appointment division. However, in relation to the conditional appointment division prior to the regular public official appointment division, even if the plaintiff worked as a public official during the conditional employment period after the conditional appointment because it constitutes grounds for disqualification, it can affect the validity of the appointment as a regular public official in that it does not constitute a public official's career by a lawful conditional public official appointment. However, the defect of such appointment is ultimately a defect of appointment as a new regular public official without undergoing the conditional appointment period, and it is merely a defect of appointment as a new public official without undergoing the conditional appointment period, and it cannot be viewed that the plaintiff's term of office is illegal after the regular public official appointment period is not valid until the regular public official appointment period (see Supreme Court Decision 2009Du3198,2, 19,2, etc.

3. Conclusion

If so, among the plaintiff's claims in this case, the part seeking the correction, cancellation, or cancellation of the defendant's order of salary grade for the above reasons for recognition is justified, and the remaining claims are dismissed as it is without merit, and it is so decided as per Disposition (attached Form omitted).

Judge Kim Jong-il (Presiding Judge) Ad hoc