Plaintiff (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

Korea Railroad Corporation (Law Firm Han-ro, Attorneys Lee Na-soo, Counsel for plaintiff-appellant)

June 18, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On March 13, 2008, the Defendant confirmed that the Defendant’s act of revoking new appointment against the Plaintiff is null and void. The Defendant pays to the Plaintiff the amount calculated by the ratio of KRW 4,353,752 per month from March 13, 2008 to the time the Plaintiff acquired the Plaintiff’s status as the Defendant’s employee.

1. Basic facts

A. On June 24, 1995, the Plaintiff was employed as a assistant seafarer in the Korea Railroad. The government abolished the Korea Railroad and established the Defendant Corporation, a public corporation, due to the structural reform under the Framework Act on Railroad Industry Development. Accordingly, the Plaintiff was appointed as a public official of Grade VIII belonging to the Korea Railroad as a public official of Grade VIII in accordance with relevant Acts and subordinate statutes, such as Article 25 of the Framework Act on Railroad Industry Development, Article 7 of the Addenda to the Korea Railroad Corporation, etc., and was promoted to Grade V civil engineering employees of the Defendant Corporation (hereinafter “instant appointment”), and the appointment of the Plaintiff to the Plaintiff was promoted to Grade IV civil engineering works on August 1, 2005.

B. On December 15, 200, the Plaintiff was indicted due to a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. (hereinafter “Aggravated Punishment, etc.”) while serving as a public official belonging to the Korea Railroad and was sentenced to imprisonment for 8 months and 2 years of suspended execution. The judgment (hereinafter “related criminal judgment”) was dismissed on August 10, 201 by the Plaintiff’s appeal (200No2921) and became final and conclusive on August 14, 2001 (On the other hand, the Daejeon District Court Decision 200Da3048 decided on August 20, 200 stated the Plaintiff’s occupation as a “student”).

C. The Plaintiff automatically lost his status as a public official on the ground that the relevant criminal judgment became final and conclusive, which constitutes a reason for ipso facto retirement under Article 69 and Article 33 subparag. 4 of the State Public Officials Act. However, the Korea Railroad did not take any measures against the Plaintiff on the ground that it was unaware of such circumstances. The Plaintiff continued to serve as a public official belonging to the Korea Railroad and continued to serve as an employee of the Defendant Corporation by the instant appointment.

D. On March 13, 2008, the Defendant Corporation confirmed that the above suspended sentence had become final and conclusive against the Plaintiff, and notified the Plaintiff of “ipso facto retirement under Articles 33 (Disqualifications) and 69 (Ipso Facto Retirement) of the State Public Officials Act” and “I would like to revoke new appointment of the Korea Railroad Corporation as the same person on January 1, 2005 due to the Plaintiff’s ipso facto retirement on August 14, 2001” (hereinafter “instant revocation of new appointment”).

E. The Plaintiff did not provide the Defendant Corporation with labor since March 13, 2008 according to the instant notification.

2. Relevant provisions;

Article 25 (Succession to Employment, etc. of Framework Act on Railroad Industry Development)

(1) The Korea National Railroad and the Korea High-Speed Rail Construction Authority shall comprehensively succeed to the employment of public officials of the Korea National Railroad and the Korea High-Speed Rail Construction Authority, except for those who continue to maintain their status

(2) The State shall take necessary measures to ensure that no disadvantage arises in working conditions and retirement benefits for those whose employment is succeeded to by the Korea Railroad and the Korea Railroad Facility Authority among the employees of the Korea Railroad under paragraph (1).

The Addenda to the Korea Railroad Corporation Act (amended by Act No. 7052 of Dec. 31, 2003)

Article 1 (Enforcement Date)

This Act shall enter into force on January 1, 2005: Provided, That the provisions of Articles 4, 5, 7 and 10 of the Addenda shall enter into force on the date of its promulgation, and the provisions of Article 8 of the Addenda shall enter into force on January 1, 2004.

Article 7 (Special Cases, etc. of Appointment of Employees)

(1) The Administrator of the Korean National Railroad shall determine persons who intend to continue to maintain their status as public officials among public officials under his/her control and persons to be converted into the status as employees of the Corporation and take measures to appoint employees.

(2) Employees of the Korea Rail Network Authority under the Korea Rail Network Authority Act (hereinafter referred to as the "Authority") except for public officials who continue to maintain their status at the time of the establishment of the Corporation, shall be appointed as employees of the Corporation.

(3) The Corporation shall appoint employees of the Corporation who have been engaged in vehicle operation affairs, such as vehicle inspections and driving, in connection with high-speed railroads at the time this Act enters into force if they desire to do so.

(4) When the Corporation is appointed as an employee under paragraph (2), it shall be deemed that a public official retires from his position.

(5) Omitted.

The State Public Officials Act (amended by Act No. 5681 of January 21, 1999)

Article 33 (Grounds for Disqualification)

No person who falls under any of the following subparagraphs shall be appointed as a public official:

4. A person who was sentenced to imprisonment without prison labor or a heavier punishment and for whom two years have not passed since the period of the suspension of execution expires.

Article 69 (Ipso Facto Retirement)

When a public official falls under any subparagraph of Article 33, he/she shall retire ex officio from office.

Regulations on the Personnel of the Korea Railroad Corporation (established by the Regulations on January 1, 2005)

Article 14 (Disqualifications for Employees)

No person falling under any of the following subparagraphs shall be employed as an employee:

4. A person who was sentenced to imprisonment without prison labor or a heavier punishment and for whom two years have not passed after the suspension of its execution was completed;

6. A person whose qualification is forfeited or suspended by a court ruling or by other Acts.

Article 46 (Ex Officio Dismissal)

(1) An employee shall be automatically dismissed if he falls under any of the following subparagraphs:

2. Where he falls under each subparagraph of Article 14;

(2) Notwithstanding the provisions of paragraph (1) 2, in cases falling under subparagraphs 4 and 5 of Article 14, where there is no difficulty in performing duties.

Addenda

The provisions of Article 1 (Enforcement Date) shall enter into force on January 1, 2005.

Article 2 (Transitional Measures) Any person who wishes to be employed as a public official from among public officials in general service, technical service, extraordinary service, and contractual service belonging to the Korea Railroad at the time this provision enters into force shall be appointed as a public official according to the following standards:

1. Class;

(a)for the officials of Grades II and III, a separate appointment procedure shall prevail;

(e) Grade VII and Grade VII public officials of Grade IV shall be employees of the Corporation;

3. The title of position (including the team leader and the station leader of the sixth calendar; hereinafter the same shall apply) assigned as prescribed by the personnel management regulations of the Korea National Railroad at the time of retirement of a public official of the Korea National Railroad shall be deemed to have been appointed respectively under the same position as prescribed by the detailed regulations of this Act, except in cases where it

The Addenda to the Regulations on Disciplinary Action against the Korea Railroad Corporation (established by the Regulation No. 20 of January 1, 2005)

The provisions of Article 1 (Enforcement Date) shall enter into force on January 1, 2005.

Article 2 (Transitional Measures) (3) Whether a person who was a public official belonging to the Korea Railroad is subject to disciplinary action and the criteria for determination of irregularities that occurred at the time of his/her appointment as a public official shall be governed by the

3. The parties' arguments and issues

A. The plaintiff's assertion

1) The instant appointment against the Plaintiff by Defendant Corporation constitutes a private employment contract, and Article 69 of the State Public Officials Act cannot be applied to the provision on the cancellation of the Civil Act. However, due to the gross negligence of Defendant Corporation, the instant appointment cannot be revoked on the ground of mistake against the Plaintiff. The instant revocation of appointment is a violation of the good faith principle in light of the balancing of profits, the purport of the personnel regulations on Defendant Corporation, the possibility of remedy under other Acts, and the change of the balancing of those violations of the Act on the Aggravated Punishment, etc. of Specific Crimes.

2) Therefore, the Plaintiff seeks confirmation of invalidity of the revocation of new appointment against the Defendant Corporation, and sought an amount equivalent to the Plaintiff’s average wage from March 13, 2008 to the time when he obtained the status as an employee of the Defendant Corporation as an employee of the said Corporation, as well as the said claim.

B. Defendant’s assertion

1) The instant appointment takes effect, not by means of new employment prescribed by the personnel regulations of Defendant Corporation, but by relevant laws and regulations. Thus, Defendant Corporation does not appoint the Plaintiff as an employee of Defendant Corporation through the instant appointment, but merely succeeds to the employment of public officials belonging to the Korea Railroad, excluding those who continue to maintain their status among public officials belonging to the Korea Railroad, by comprehensively transferring the employment of public officials belonging to the Korea Railroad pursuant to relevant laws and regulations, thereby succeeding the Plaintiff

However, while the Plaintiff was employed as a public official of the Korea National Railroad, the relevant criminal judgment became final and conclusive on August 14, 2001, and the cause for ipso facto retirement under Article 69 of the State Public Officials Act occurred, and lost the status of a public official belonging to the Korea National Railroad on that day. At the time of the appointment of this case, the Plaintiff did not have the status of a public official belonging to the Korea National Railroad, and even according to the personnel management regulations of the Defendant Construction Corporation, the Plaintiff’s appointment notification

2) Even if the instant appointment against the Plaintiff was newly employed, the instant appointment was made by deceiving the Defendant Corporation on the ground that the instant appointment against the Plaintiff was made by mistake on the Plaintiff’s status, which is an important part of the appointment, or that the Plaintiff did not notify the Plaintiff of the fact that the appointment was subject to duty of disclosure under the good faith principle. As such, the Defendant Corporation revoked the instant appointment on the ground that the instant appointment against the Plaintiff was made by mistake or fraud.

C. Issues

Therefore, the key issue of the instant case is first, whether the instant appointment against the Plaintiff of Defendant Corporation on January 1, 2005 is a general successor of employment or a new employment based on a private employment contract, second, whether the cancellation of Defendant Corporation is legitimate if the instant appointment is newly employment.

4. Judgment on the plaintiff's claim

A. Legal nature of the appointment of this case

1) The instant appointment against the Plaintiff of the Defendant Corporation is not made according to the ordinary methods and procedures prescribed by the personnel management regulations of the Defendant Corporation, but rather made pursuant to the provisions of Article 25(1) of the Framework Act on Railroad Industry Development, Article 7(2) of the Addenda of the Korea Railroad Corporation Act, etc. When the government abolished the Korea Railroad Corporation and established the Defendant Construction, the Defendant Corporation shall comprehensively take over the organization and duties of the Korea Railroad Corporation, and continuously carries out railroad operations. A public official belonging to the Korea Railroad Corporation changes the status of the employee of the Defendant Corporation to the employee of the Defendant Corporation, under Article 25(2) of the Framework Act on Railroad Industry Development, Article 7(4) and (5) and Article 8 of the Addenda of the Korea Railroad Corporation Act.

2) However, (1) The Administrator of the Korea National Railroad established a person who intends to maintain the status of a public official among the public officials belonging to the Korea National Railroad and a person who will change the status of a public official belonging to the Korea National Railroad, and only the person who wishes to employ a public official as a public official belonging to the Korea National Railroad among the public officials whose status is to change is to be employed as an employee of the Korea National Railroad, taking into account the position at the time of the public official belonging to the Korea National Railroad, and (2) Article 7(2) of the Addenda of the Korea National Railroad Corporation stipulates that even if the public official belonging to the Korea National Railroad succeeds to the employment of the public official belonging to the Korea National Railroad, taking into account the position at the time of the public official belonging to the Korea National Railroad, it is planned that the public official belonging to the Korea National Railroad is an individual appointment of the public official belonging to the Korea National Railroad Corporation. (3) Since the public official belonging to the Korea National Railroad is against the status guaranteed by the Constitution and the statutes, the change of the status of the public official belonging to the Korea National Railroad is separate.

B. The legality of revocation against the plaintiff of defendant Corporation

1) The legality of revocation by mistake

In light of the facts that the plaintiff had the status as a public official belonging to the Korea Railroad Corporation, the Administrator of the Korea National Railroad confirmed the plaintiff as a person to be converted to the status of the employee of the Korea National Railroad Corporation, and the appointment of the defendant Corporation was based on this case. In addition, the personnel management regulations of the defendant Corporation stipulate the grounds for disqualification and ex officio dismissal identical with those of the State Public Officials Act, and under Article 14 of the personnel management regulations of the defendant Corporation, "in the case of the plaintiff, the plaintiff constitutes "the person who was sentenced to imprisonment without prison labor or heavier punishment and for whom two years have not passed after the expiration of the grace period for the enforcement thereof," and the disciplinary regulations of the defendant Corporation stipulate that the defendant Corporation may be punished by applying the relevant regulations of the state public officials, and immediately notify the plaintiff of this case in light of the fact that the defendant Corporation received the notification as a public official at the time of his employment, if he knew that the plaintiff was disqualified from the status of the plaintiff due to the confirmation of the relevant criminal judgment, it is sufficiently confirmed that the plaintiff was not appointed as an employee of the general defendant Corporation.

Therefore, the appointment of this case is deemed to have been erroneous in its important part, and the defendant corporation legally cancelled the appointment of this case on this ground.

2) However, the Plaintiff asserts that even if there is an error in the important part of the contents of the legal act in the appointment of Defendant Corporation in this case, the Defendant Corporation did not make any investigation or decision as to the Plaintiff’s disqualification, thereby making the instant appointment difficult to revoke the appointment of this case on the ground that there is gross negligence due to gross negligence as it significantly lacks the attention normally required in performing an important legal act

The term "serious negligence" of a person who is unable to be cancelled by an expression of intent due to mistake means a lack of attention normally required in light of his occupation, kind of act, purpose, etc. (Supreme Court Decision 2000Da12259 Decided May 12, 200). As seen above, in the relevant criminal judgment against the plaintiff, the plaintiff's occupation as a defendant is indicated as "student" and it is confirmed that the plaintiff stated that he was a public official in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes as a public official at the time of investigation or trial as a result of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and accordingly, the plaintiff continues to serve as a public official of the Korea Railroad because the declaration of the relevant criminal judgment and the final decision are not notified, and that the new employee of the Korea Railroad is newly appointed by the appointment of the defendant Corporation, except for the person who maintains his status as a public official pursuant to Article 25 (1) of the Framework Act on Railroad Industry, and the employee of the Korea Railroad that actually maintains maintains his status as a public official.

Therefore, the plaintiff's assertion that the error in the appointment of the plaintiff in this case against the plaintiff cannot be revoked due to the gross negligence of the defendant corporation is without merit.

C. Whether the revocation of new appointment by Defendant Corporation in this case is invalid against the principle of good faith and the principle of invalidation

1) The Plaintiff asserts that the cancellation of new appointment by Defendant Corporation is null and void against the principle of good faith, while the Plaintiff has almost no benefit derived from Defendant Corporation due to the cancellation of new appointment by Defendant Corporation, and the Plaintiff has suffered a loss by losing his livelihood. However, the Plaintiff’s continued to work as an employee of Defendant Corporation on August 14, 2001 on the ground that the Plaintiff was newly appointed under a private employment contract due to the amendment of the relevant criminal law and regulations, which was based on the amendment of the relevant criminal judgment, continued to serve as an employee of Defendant Corporation on the ground that the Plaintiff was newly appointed on August 14, 200 by the amendment of the relevant law and regulations, is recognized as having the right to acquire the Plaintiff’s mistake at the time of investigation and trial, and as such, it is unreasonable in light of the equity between the Plaintiff and the person who was found to have a reason for ipso facto retirement as of January 1, 205. Therefore, it cannot be deemed that the revocation

2) According to Article 46(2) of the Personnel Regulations of Defendant Corporation, the Plaintiff provided an exception to dismissal under Article 14 subparag. 4 (the same shall not apply to a person in whose case two years have not passed since his imprisonment without prison labor or heavier punishment was completely executed). On the other hand, if the same cause occurs before new appointment of this case, new appointment is revoked, while the same cause does not interfere with the performance of his duties, and if there is no problem in the performance of his duties, the conclusion that the period of criminal punishment is the date of occurrence of criminal punishment varies depending on the incidental result. Accordingly, the revocation of new appointment of this case is dismissed in light of the purport of the above provision, and thus, is null

However, at the time of new appointment, the defendant cannot be deemed to have been appointed on the basis of whether he did not interfere with his duties even with the plaintiff's grounds for disqualification. Thus, it cannot be simply compared with the exception provisions concerning the above dismissal, and even if the disadvantage varies depending on the period of criminal punishment, it is a result accompanied by the inevitability of amendment of laws and regulations, and it cannot be deemed that the revocation of new appointment in this case was contrary to the good faith principle

3) The Plaintiff enacted the Act on Special Cases concerning the Payment of Retirement Compensation, etc. to disqualified public officials, etc. on August 31, 1999, and provided special employment to disqualified public officials, etc. like the Plaintiff, and thus, the Plaintiff would have received relief if the Plaintiff applied for special employment. Therefore, the revocation of new appointment in this case is alleged to be a violation of the good faith principle. However, the aforementioned Special Act does not apply to the Plaintiff, which caused the cause of ipso facto retirement due to the final and conclusive judgment of the relevant criminal case on August 14, 2001,

4) The Plaintiff asserted that the revocation of new appointment was a violation of the principle of good faith, on the grounds that, in the case of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the punishment was excessively high, and that the fine was additionally imposed on March 25, 2002, and that if the amended Act was applied as well as the content of the crime committed at the time was minor and thus, there was a high possibility that the Plaintiff would be sentenced to a fine. However, such reason alone does not constitute a violation of the same principle.

5) In addition, the Plaintiff asserts that the Defendant’s new appointment cancellation of the instant case on the ground of the criminal facts in the past eight years since he newly appointed the Plaintiff, who believed that he would not exercise his right to revoke appointment, even though he had the opportunity to exercise his right to revoke appointment by discovering the grounds for disqualification through personnel investigation, etc., was invalid in violation of the so-called principle of invalidation, one of the good faith.

However, as seen earlier, it was difficult to expect that most of the employees of the Korea Railroad, except those who want to maintain their status as public officials, would be practically disqualified under the personnel regulations of the Korea Railroad, and it is difficult to expect that the Defendant would be disqualified under the personnel regulations of the Korea Railroad. Moreover, since the Defendant revoked the appointment of this case after becoming aware of the grounds for disqualification, it cannot be deemed that the Defendant was able to exercise its rights for a long period. The Plaintiff’s assertion

D. Determination as to claim for payment equivalent to the Plaintiff’s ordinary wage

As seen above, the Plaintiff retroactively lost his status as an employee of Defendant Corporation on January 1, 2005 by the revocation of new appointment of Defendant Corporation. Thus, the Plaintiff’s claim for the payment equivalent to the Plaintiff’s ordinary wage, premised on the Plaintiff’s valid status as an employee of Defendant Corporation by the instant appointment, is without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Tae-tae (Presiding Judge) (Presiding Judge)