[1] In the interpretation of Article 7 of the Addenda of the Korea Railroad Corporation Act (amended by December 31, 2003), whether it is possible for the Administrator of the Korea Railroad Corporation to lose his status as a public official by being appointed as a public official against the will of a person who wishes to remain a public official (negative)

[2] In a case where there are various opinions on the interpretation of Acts and subordinate statutes, and where the relevant public official performs his duties according to one of those opinions with careful and reasonable grounds, whether the pertinent public official's negligence can be recognized (negative)

[3] The case reversing the judgment of the court below that recognized State liability on the ground that there was an intentional or negligent act in interpreting Article 7 of the Addenda of the Korea Railroad Corporation Act, even though there is room to interpret Article 7 of the Addenda of the Korea Railroad Corporation Act ( December 31, 2003) as favorable to Gap, in case where the Administrator of the Korea Railroad Agency notified Gap that he would be appointed as a staff member of the Korea Railroad Corporation against the intention of Gap who wishes to remain a public official, and he would be retired ipso facto from his position

[1] Articles 21(3) and 25(1) of the Framework Act on Railroad Industry Development; Article 7(1), (2), and (4) of the Addenda of the Korea Railroad Corporation Act / [2] Article 2(1) of the State Compensation Act / [3] Article 2(1) of the State Compensation Act; Articles 21(3), and 25(1) of the Framework Act on Railroad Industry Development; Article 7(1), (2), and (4) of the Addenda of the Korea Railroad Corporation Act ( December 31, 2003)

[1] Constitutional Court en banc Order 2005Hun-Ma350 decided July 26, 2007 (Hun-Ma130, 877) / [2] Supreme Court Decision 95Da32747 decided Oct. 13, 1995 (Gong1995Ha, 375) Supreme Court Decision 2002Da31018 decided Jun. 11, 2004 (Gong2004Ha, 1145)

Plaintiff 1 and two others

Korea

Seoul High Court Decision 2009Na106647 decided September 10, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In principle, the Framework Act on Railroad Industry Development, enacted by Act No. 6955 on July 29, 2003, divided the railroad industry into “railroad facility sector” and “railroad operation sector” into the State. However, for the construction and management of railroad facilities, the Korea Rail Network Authority shall be established pursuant to the Special Act by combining the relevant organizations of the previous Korea Railroad and the Korea High-Speed Rail Construction Authority, and railroad operations shall be conducted by persons other than the State in accordance with market economy principles. In order to efficiently operate railroad operation-related business, the Korea Railroad Authority Act was established on the same day, and the Korea Rail Network Authority Act was established on December 31, 2003 (hereinafter “Act”). Meanwhile, Article 7 of the Addenda of the Act provides that public officials of the Korea Railroad Corporation (hereinafter “the Act”) shall be deemed public officials of the Ministry of Railroad and the Korea Rail Construction Authority shall be appointed as employees of the Korea Railroad Corporation (excluding those of the Korea Railroad Corporation) and employees of the Korea Railroad Corporation (hereinafter “Korea Railroad Corporation”) to be appointed as employees of the Korea Railroad Corporation.

The gist of this part of the Defendant’s ground of appeal is that Article 7 of the Addenda to the Act does not classify “a person who intends to continue to maintain the status of a public official” as “a person who continues to maintain the status of a public official” under paragraph (1) of the same Article, but does not specify “a person who continues to maintain the status of a public official” under paragraph (2) of the same Article, so that

① However, Article 7(1) of the Addenda to the Act provides that the Administrator of the Korea National Railroad shall classify “a person who intends to maintain his/her status as a public official” and “a person who will change his/her status as an employee of the Korea National Railroad Corporation,” and only the latter is appointed as an employee of the Korea National Railroad Corporation. This means that a person who wishes to remain as a public official may withdraw his/her remaining opinion before the establishment of the Korea Railroad Corporation ( January 1, 2005) and there is an opposing opinion, and Article 7(2) of the Addenda to the Act provides that “a person who continues to maintain his/her status as a public official at the time of construction of the Korea Railroad Corporation” unlike Article 7(1) of the Act provides that “a person who wishes to be appointed as a public official by the Korea National Railroad Corporation shall not be deemed to have been appointed as a public official under the jurisdiction of the Korea National Railroad Corporation unless he/she wishes to maintain his/her remaining status as a public official by the Korea National Railroad Corporation.”

2. Regarding ground of appeal No. 2

A. In general, if a public official takes a wrong administrative disposition due to a lack of knowledge or necessary knowledge of the relevant laws and regulations, he/she shall not be deemed to be a public official, not a legal expert. However, if the interpretation of the Acts and subordinate statutes itself is not clear, and the interpretation of the Acts and subordinate statutes in question can be seen as not being negligent. If there is no doubt due to a lack of significance, such as precedents, theories, precedents, etc., the interpretation of the Acts and subordinate statutes itself does not coincide with the position of the Supreme Court after the relevant public official found reasonable grounds for his/her careful caution and subsequently, he/she reached a wrong interpretation. As a result, even if the processing results in illegal and unfair execution of the Acts and subordinate statutes, it is difficult to expect that the average public official in good faith will be in dealing with such processing methods, and therefore, it cannot be acknowledged as negligence of a public official under the State Compensation Act (see Supreme Court Decisions 95Da3747, Oct. 13, 195; 2012Da36814, Feb. 14, 20198).

B. According to the reasoning of the judgment below, although the Administrator of the Korean National Railroad does not have the authority to retire or appoint the deceased as staff of the Korean National Railroad against the will of the applicants for remaining public officials under Article 7 of the Addenda of the Act, it is unlawful for the Administrator of the Korean National Railroad to clarify that he would appoint the deceased as staff of the Korean National Railroad against the will of the deceased, and furthermore, in light of the circumstances as stated in its reasoning, the court below determined that

C. However, the lower court’s determination is difficult to accept in light of the aforementioned legal principles and the following circumstances.

First, even under Article 7 of the Addenda to the Act, there is no provision that a person who intends to continue to maintain his/her status as a public official according to his/her will or that the Administrator of the Korean National Railroad shall not appoint him/her as an employee of the Korean National Railroad. Moreover, Article 7(2) of the Addenda to the Act provides that a person who intends to continue to maintain his/her status as a public official shall be appointed as an employee of the Korean National Railroad except for a person who intends to maintain his/her status as a public official, unlike Article 7(1) provides that a person who intends to continue to maintain his/her status as a public official shall be appointed as an employee of the Korean National Railroad, and there is room to interpret that a person who intends to continue to maintain his/her status as a public

In addition, in the case of constitutional complaint filed by the deceased, etc. with respect to Article 7 (4) of the Addenda of the Act, the Minister of Construction and Transportation has presented a written opinion stating that "The purpose of Article 7 of the Addenda of the Act is to allocate appropriate human resources in consideration of the actual conditions of human resources supply and demand, such as the situation of railroad construction, and to respect the individual will of the public officials of the Korea National Railroad. Therefore, in extenuating circumstances, if a person who wishes to remain a public official is not classified as "a person who continues to maintain his/her status as a public official" under Article 7 (2) of the Addenda of the Act, he/she may be converted to a railroad employee and deemed a public official's retirement from his/her status pursuant to Article 7 (4) of the Addenda of the Act (Evidence 6). In light of the above opinion (Evidence 5) in the case of a petition filed by the deceased, etc., the Civil Service Commission dismissed the petition on the premise of the same opinion. Furthermore, it is more clear that the interpretation of Article 7 of the Addenda of the Civil Service Act is difficult to interpret.

In addition, the reason why the Administrator of the Korean National Railroad is to appoint the deceased, etc. as a staff member of the Korean National Railroad regardless of the deceased's remaining will, and as a result, it is clear that the deceased, etc. will become a member of the Korean National Railroad due to the abolition of the organization of the Korean National Railroad even if he/she continues to maintain his/her status as a public official according to the deceased's will. In such a case, there is a high possibility of ex officio dismissal pursuant to Article 70 (1) 3 of the State Public Officials Act. Therefore, it is difficult for the Administrator of the Korean National Railroad to criticize the deceased, etc. of the interpretation and application of Article 7 of the Addenda of the Korean National Railroad Act,

D. Nevertheless, the court below judged otherwise that there was an intentional or negligent interpretation of Article 7 of the Addenda of the Act by the Administrator of the Korean Railroad. Thus, the court below erred by misapprehending the legal principles on official negligence of public officials in the state liability for damages, which affected the conclusion of the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)