[1] The validity of an appointment act for a disqualified person, and where a disqualified person is appointed as a public official and actually works for him/her, whether the appointed person may request retirement benefits under the Public Officials Pension Act or retirement allowances under the Labor Standards Act or request the State to pay remuneration (negative)

[2] In a case where there are grounds for invalidation of the appointment of a public official who has served as a public official, whether a relationship of unjust enrichment exists between a disqualified person for appointment and a country with authority for appointment with respect to the work provided after the invalidation of the appointment (affirmative), and the method of calculating the unjust enrichment

[1] The grounds for disqualification for appointment of public educational officials under the Public Educational Officials Act are absolute passive requirements to be appointed as public educational officials, and the relationship of public officials is established at the time of appointment by the State. Thus, whether the grounds for disqualification for appointment of public officials exist shall be determined based on the law enforced at the time of appointment, and if there were grounds for disqualification for appointment of public officials at the time of appointment, the act of appointment shall be deemed null and void a year, even though it was not revealed by the State's negligence, and as such, the act of appointment cannot be deemed null and void a year. As such, even if a disqualified person is appointed as a public official, he/she cannot claim retirement benefits under the Public Educational Officials Pension Act or retirement allowances under the Labor Standards Act, and even if he/she actually worked as a disqualified person, he/she cannot claim monthly remuneration to the State on the premise of the existence of the above relationship.

[2] In a case where there is a reason for invalidation of the appointment of public officials who have been employed as public officials, even though disqualified persons and countries do not legally form the status of public officials or labor relations, in fact, if disqualified persons have continuously provided their labor in compliance with the State's command and order for the purpose of earning wages, the disqualified persons provided their labor to the State without any legal basis, thereby causing damages equivalent to the monetary value of their labor provided to the State, thereby obtaining labor from disqualified persons without any legal basis. Thus, the legal relationship between disqualified persons and the State formed legal relations dealt with by the legal principles of unjust enrichment for the preservation of damages caused by such invalidation of appointment and return of profits. In this case, the monetary value of the total labor paid by the State by unjust enrichment from disqualified persons shall be the sum of the monthly salary paid by the disqualified persons each month and the amount equivalent to the wages paid when a person who has no reason for disqualification retires for the same period.

[1] Articles 30 and 49(1) (see current Article 46), Article 28(1) (see current Article 34(1)) of the former Public Officials Pension Act (Amended by Act No. 3221, Dec. 28, 197); Article 28(1) (see current Article 34(1)) of the former Labor Standards Act (Amended by Act No. 5309, Mar. 13, 197); Article 16 subparag. 4 of the former Public Educational Officials Act (Amended by Act No. 305, Dec. 31, 197); Article 741 of the Civil Act; Article 28(1) (see current Article 34(1)) of the former Labor Standards Act (Amended by Act No. 5309, Mar. 13, 197); Article 35 subparag. 46 of the former Public Educational Officials Act (Amended by Act No. 3051, Dec. 31, 197)

[1] Supreme Court Decision 95Nu5905 delivered on October 12, 1995 (Gong1995Ha, 3800), Supreme Court Decision 95Nu9617 delivered on February 27, 1996 (Gong1996Sang, 1141), Supreme Court Decision 96Nu33 delivered on July 12, 1996 (Gong1996Ha, 2519), Supreme Court Decision 97Nu16985 delivered on January 23, 1998 (Gong198Sang, 623)

Plaintiff (Law Firm Law, Attorneys Kim Dong-dong et al., Counsel for plaintiff-appellant)

Korea

Seoul District Court Decision 98Gahap21729 delivered on June 11, 1998

1. The judgment of the court below, including the claim to be reduced in the trial, shall be modified as follows:

A. The plaintiff's main claim of this case reduced in the trial is dismissed.

B. Based on the preliminary claim that has been reduced at the trial, the defendant shall pay to the plaintiff the amount of 73,371,918 won and the amount of 5% per annum from April 1, 1996 to February 9, 1999, and 25% per annum from the next day to the date of full payment.

2. The total cost of the lawsuit is divided into two parts through the first and second trials, and one of which is the plaintiff, and the other one is the defendant's burden.

In the first place, the defendant shall pay to the plaintiff the amount of 162,59,587 won and the amount of 5% per annum from April 1, 1996 to the delivery date of the copy of the complaint of this case, and the amount of 73,371,918 won and the amount of 73,371,918 won per annum from the next day to the date of the full payment. In the second place, the defendant shall pay to the plaintiff the amount of 5% per annum from April 1, 1996 to the delivery date of the copy of the complaint of this case, and the amount of 25% per annum from the next day to the date of full payment (the plaintiff shall be deemed to have reduced both the plaintiff's primary and conjunctive claims, and the purport of appeal shall be deemed to have been reduced accordingly).

1. Presumption

A. The following facts can be acknowledged by the parties or by taking account of the whole purport of the pleadings as stated in Gap evidence Nos. 1 through 7, and there is no counter-proof.

(1) On March 1956, the Plaintiff was appointed as an elementary school teacher who is a public educational official and was on duty and retired from office around April 1969. On December 15, 1969, the Seoul District Criminal Court sentenced 10 months of imprisonment with prison labor and 2 years of suspended execution. The above sentence was finalized after the lapse of the appeal period on the 23th of the same month.

(2) As of September 16, 1971, the Plaintiff was again appointed as an elementary school teacher belonging to the Office of Education in Gwangjin-gu, Seoul as of September 16, 1971, and was in office as a teacher at Gwangju White School, etc., and voluntarily retired as prescribed by the Public Educational Officials Act, which was in force as of February 29, 1996

(3) On February 16, 1996, the plaintiff filed a claim for the payment of retirement benefits including retirement allowances under the Public Officials Pension Act. On March 12, 1996, the above Corporation confirmed that the plaintiff was sentenced to punishment as stated in the above paragraph (1) while reviewing the plaintiff's claim for the payment of retirement benefits, and notified that the plaintiff's appointment to the plaintiff pursuant to subparagraph 4 of Article 16 of the former Public Officials Pension Act (amended by Act No. 305 of Dec. 31, 1977), which is the basis of appointment at the time of appointment of the plaintiff, is null and void as a public official subject to the Public Officials Pension Act. Furthermore, the above Corporation rejected the plaintiff's claim for the payment of the above retirement benefits, and the contribution paid by the plaintiff during the service period under the Public Officials Pension Act and the amount of the plaintiff's retirement benefits paid to the plaintiff as a teacher before the above appointment, which was returned to the defendant after the settlement of the loan and the amount repaid by the defendant under the Public Officials Pension Act.

(4) Although the Plaintiff filed an administrative lawsuit with Seoul High Court seeking revocation of the above retirement benefit rejection disposition against the Plaintiff, the above appointment act against the Plaintiff was null and void as a matter of course, and as long as the employment relationship cannot be established due to the appointment of disqualified public officials as a matter of course, the Plaintiff’s dismissal decision was sentenced on April 2, 1997 on the ground that the Plaintiff did not have legal protection even if he did not have any trust due to the above appointment, and the Plaintiff appealed to the Supreme Court Decision 97Nu6438 Decided July 28, 1997 on the ground that the Plaintiff’s appeal was made against it, but the dismissal decision became final and conclusive on the ground that it constitutes a ground that the above appointment act constitutes a ground for refusal of trial under Article 4 of the Act on Special Cases Concerning the Final Appeal Procedure on July 28, 1997.

B. Statutes relevant to the instant case

Article 16 of the former Public Officials Pension Act provides that "a person who falls under any of the following subparagraphs shall not be appointed as a public educational official" when the plaintiff is "a person who is sentenced to imprisonment without prison labor or heavier punishment and for whom one year has not passed after the expiration of the period of suspension of the execution thereof". Article 3 (1) 1 of the Public Officials Pension Act provides that "a public official" in the above Act means a public official under the State Public Officials Act and the Local Public Officials Act, and the State or local governments prescribed by the Presidential Decree or other employees. Article 2 (1) of the State Public Officials Act designates a public official as one of public officials in special service among public officials in special service, and Article 61-2, 65, 67, and 69 of the Public Officials Pension Act provides that a public official shall pay the amount of monthly remuneration to the Public Officials Pension Corporation within the scope of 75/1,000 of his/her monthly remuneration charges and the State shall pay the amount of monthly remuneration to the State or local governments within the scope of 10/70 years of his/her monthly remuneration charges.

2. Return of unjust enrichment:

A. I think, the reason for disqualification for appointment of public educational officials provided for in the Public Educational Officials Act is an absolute passive requirement for appointment as public educational officials, and the relationship of public officials is established at the time of appointment by the State. Thus, whether a reason for disqualification for appointment as public officials exists shall be determined based on the law enforced at the time of appointment. If there was a reason for disqualification for appointment as public officials at the time of appointment, even though it was not clear that the State was disqualified for appointment due to negligence, the act of appointment shall be deemed null and void a year, and as such, even if it is not possible for the person subject to appointment to obtain the status of public officials or to have labor employment relations with him/her, even if he/she actually worked as a public official, such person cannot claim retirement benefits under the Public Educational Officials Pension Act or retirement allowances under the Labor Standards Act (see, e.g., Supreme Court Decision 95Nu5905, Oct. 12, 195).

B. However, even though disqualified persons and countries do not legally form the status of public officials or employment relations, inasmuch as those disqualified persons have actually provided labor to the State without any legal basis, the disqualified persons shall provide labor to the State without any legal basis and thereby, thereby causing damage in the amount equivalent to the monetary value of labor provided to them, and the State shall receive labor from disqualified persons without any legal basis and gain profits equivalent to that amount. Therefore, it can be deemed that the legal relationship between disqualified persons and the State formed the legal relationship to be dealt with by the legal principles of unjust enrichment for the purpose of preserving damages caused by such invalidation of appointment and return of profits.

C. Accordingly, in accordance with the above facts, there was a reason for disqualification at the time of appointment as a public educational official, and as a result, it can be known that the appointment of the plaintiff as a public educational official was null and void as a result, and there was no status relationship or employment relationship between the defendant and the defendant. Thus, the plaintiff suffered damages equivalent to the monetary value of his labor by providing his labor to the defendant without any legal cause during that period, thereby resulting in the defendant's gain of the same amount of profit, and thus, the defendant is obligated to return the amount equivalent to the monetary value of the total labor provided by the plaintiff as unjust enrichment.

3. Financial evaluation of unjust enrichment obtained by the defendant;

A. In light of the legal relationship to be dealt with by the legal doctrine as seen above, if the defendant establishes the amount of unjust enrichment to be returned to the plaintiff within the scope of monetary value of the total labor provided by the plaintiff during that period, the issue is whether the amount equivalent to the monetary value of the total labor provided by the plaintiff should be assessed first. Thus, it is reasonable to view that the monetary value of the total labor provided by the plaintiff is identical to that of the plaintiff and the amount of the total labor provided by the defendant for the same period after being duly appointed by the defendant.

B. However, Article 28 of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997) which was enforced at the time of the plaintiff's retirement provides a retirement allowance system under which the plaintiff may pay retirement allowances at the time of his retirement. Article 20 of the same Act provides that labor contract which stipulates working conditions that do not meet the standard prescribed under the Labor Standards Act shall be null and void only that part shall be based on the standard prescribed under the Labor Standards Act. In interpreting the nature of such retirement allowance, the monthly salary paid during the period of service shall not be paid in full as the value of the labor provided, but shall be paid only in part as the amount equivalent to the value of the actual labor, and it shall be deemed that the additional wage was paid at the time of his retirement because the accumulation of such unpaid wage was financed, and even if it is not possible for the defendant to apply the Labor Standards Act to the plaintiff as the total amount of retirement allowance paid for the same purpose as that of the plaintiff's retirement allowance or the amount of wage paid to the plaintiff after his retirement.

4. Scope of unjust enrichment to be returned by the Defendant

A. Judgment as to the plaintiff's primary claim

(1) As the cause of the instant claim, the Plaintiff asserts that, as a part of the Plaintiff’s pecuniary value of the total amount of monthly wage for the Plaintiff’s total labor, the amount of money for the Plaintiff’s total labor that has already been paid for the same period as that of the Plaintiff under the Public Officials Pension Act, is the same as the retirement allowance, including the retirement allowance that the Plaintiff would have been paid, and that the amount of money for the Plaintiff’s total labor that has not yet been paid is the same as that of the retirement allowance that the Plaintiff would have been paid. Of the amount equivalent to the said retirement benefit, the Plaintiff already received a refund of the contribution that the Plaintiff paid pursuant to Article 66 of the Public Officials Pension Act in order to form the said retirement benefit, and accordingly, sought a return of the amount equivalent to the remaining retirement benefit. The Plaintiff’s primary claim is premised on the premise that all of the remainder of the retirement

(2) Therefore, the retirement benefits system including the retirement benefits system under the Public Officials Pension Act is much more favorable to public officials than the retirement benefits under the provisions of the Labor Standards Act. On the other hand, the Labor Standards Act does not impose any employee’s burden on the formation of retirement benefits, and in any case it cannot impose any restrictions or differential systems on retirement benefits. Unlike the above, the Public Officials Pension Act provides that public officials themselves shall also pay contributions equivalent to a certain amount of monthly retirement benefits in order to raise the cost of retirement benefits, and that where public officials are removed or punished for a certain reason, the retirement benefits system including the retirement benefits under the Public Officials Pension Act provides that the retirement benefits system including the retirement benefits system under the Public Officials Pension Act shall be limited to the determination of retirement benefits and the collection of contributions shall be decided upon the request of the Public Officials Pension Benefit Examination Committee for the examination of the rights and duties related to the retirement benefits under the Public Officials Pension Act, and the part of the retirement benefits system under the Public Officials Pension Act, including the retirement benefits system under the above Public Officials Pension Act, which has the nature of the retirement benefits system under the Public Officials Pension Act, which is different from its legal nature.

B. Judgment on the plaintiff's conjunctive claim

(1) As the conjunctive cause of the instant claim, the Plaintiff asserts that the amount of monetary value for the total labor provided by the Plaintiff, which the Plaintiff had not yet been returned, is at least the same amount as the retirement allowance that the person, who has worked for the same position as the Plaintiff and is retired from the same amount, is the same as the amount of the retirement allowance that the Plaintiff would have received under the Labor Standards Act, and sought a refund of the said amount

(2) As seen earlier, the retirement allowance provision under the Labor Standards Act provides for the minimum amount of the retirement allowance to be paid as the subsequent wages. Thus, the defendant is exempted from the application of the Public Officials Pension Act, and the defendant shall pay the minimum amount of the retirement allowance under the Labor Standards Act to the defendant as the worker under the status of the worker under the Labor Standards Act, and even if there are no special provisions on this, he shall not refuse the payment of the retirement allowance under the Labor Standards Act. Thus, even if there are no grounds under the law on payment of the retirement allowance under the Labor Standards Act from the defendant's budget, he shall not refuse the payment of the retirement allowance under the Labor Standards Act. Thus, the defendant who is liable to return the plaintiff's unjust enrichment in relation to the financial value of the total labor provided by the plaintiff to the plaintiff, is liable to pay the amount of the retirement allowance under the Labor Standards Act for the period of the plaintiff's service as the return of unjust enrichment corresponding to the total amount of the retirement allowance under the Labor Standards Act, but the contribution already received by the plaintiff does not fall under the subsequent unpaid wages.

(3) Therefore, Article 28(1) of the former Labor Standards Act provides that the amount equivalent to the retirement allowances that the Defendant is liable to return shall be 0.5 days + 20 days’ average wages for 30 or more x 197 days’ average wages for 30 or 97 months’ average wages” x 19.3 months’ average wages shall be calculated. In full view of the statements in subparagraph 13 and arguments, the Defendant shall pay 40%’s salary as the end of each year, 200%’s salary as the full-time allowance, 90% for 96 months’ average wages for 90,000 won and 94%’s average wages for 96 months’ average wages for 95,000 won and 90%’s average wages for 96 months’ average wages for 94 months’ average wages for 96 months’ average wages.

5. Conclusion

Therefore, as the return of unjust enrichment, the defendant is within the scope of the amount equivalent to the retirement allowance under the provisions of the Labor Standards Act calculated on the basis of the monthly remuneration that the plaintiff received from the plaintiff, and as the date of the imposition of this case from April 1, 1996, which was 73,371,918 won, and after the date of the above retirement, until February 9, 1999, it would be reasonable for the defendant to dispute as to the existence and scope of the payment obligation. The defendant is obligated to pay damages for delay at each rate of 5% per annum as stipulated in the Civil Act and 25% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the main claim of this case reduced at the plaintiff's trial is dismissed and it is reasonable to accept the main claim of this case which was reduced at the trial, and the judgment of the court below is unfair in conclusion, and it is so decided as per Disposition by the assent of the court below.

Judges Doh-type (Presiding Judge)