[1] Where a local public official is deemed to be acquitted pursuant to Article 60 of the Criminal Act after receiving a suspended sentence of punishment, whether the effect of his/her ipso facto retirement already occurred shall be affected (negative)

[2] Whether the actual period of service after retirement is added to the period of service under the Public Officials Pension Act (negative)

[3] Where the determination of a salary grade of a newly appointed public official was conducted after the occurrence of a reason for his/her / her ipso facto retirement during the previous public official’s work experience including the period of actual service as a public official, whether the person holding the current salary grade enforcement authority may exclude it and correct it retroactively based on the date of issuance

[1] Article 61 of the former Local Public Officials Act (amended by Act No. 1794 of Apr. 30, 1966) provides that "a public official falls under any of the subparagraphs of Article 31, ipso facto retire." Article 31 subparagraph 5 of the same Act provides that "a person who is under the period of suspension of sentence where he/she is subject to a suspended sentence as one of the grounds for disqualification". Article 61 of the same Act provides that the ipso facto retirement system under Article 61 of the same Act naturally loses his/her status as a public official at the time of the occurrence of the grounds for disqualification under any of the subparagraphs of Article 31 of the same Act by itself without the appointing authority's expression of intention, and the ipso facto retirement system naturally loses its status as a public official at the time of the occurrence of the grounds for disqualification without the appointing authority's expression of intention. Therefore, if a local public official is subject to the suspended sentence, it shall be deemed that

[2] The retirement allowance under the Public Officials Pension Act is paid in cases where a person who lost his status as a public official retires while acquiring his status as a legitimate public official, so even if a person who lost his status as a public official actually continues to serve as a public official after his/her retirement, the actual service period after his/her retirement shall not be added to the service period under

[3] According to Article 17(1) and (2) of the Local Public Officials Remuneration Regulations, when the determination of the salary grade of a local public official is erroneous, the current person holding the authority to implement the determination of the salary grade shall correct the salary grade retroactively to the date of the issuance of the erroneous salary grade. Thus, in defining the salary grade of a new public official, even though the period of actual service as a public official after the occurrence of the reason for his/her retirement was included in the previous public official's work experience, the entire period of his/her service as a public official after the occurrence of the reason for his/her retirement can not be recognized as a legitimate public official, and if such fact is found later, the person holding the authority to implement the determination of the salary grade may exclude this part and correct the salary grade retroactively as of the date of the issuance.

[1] Article 31 subparag. 5 and Article 61 of the former Local Public Officials Act (amended by Act No. 1794 of Apr. 30, 196), Article 60 of the Criminal Act / [2] Article 61 of the former Local Public Officials Act (amended by Act No. 1794 of Apr. 30, 196), Articles 23 and 46 of the former Public Officials Pension Act (amended by Act No. 4334 of Jan. 14, 1991) / [3] Article 61 of the former Local Public Officials Act (amended by Act No. 1794 of Apr. 30, 196), Articles 23, 24 of the former Public Officials Pension Act (amended by Act No. 434 of Jan. 14, 191), Article 17 of the former Public Officials Remuneration Regulations (amended by Presidential Decree No. 1794 of Dec. 17, 198)

[1] Supreme Court Decision 95Nu5905 delivered on October 12, 1995 (Gong1995Ha, 3800), Supreme Court Decision 96Nu4275 delivered on July 8, 1997 (Gong1997Ha, 238) / [2] Supreme Court Decision 86Nu459 delivered on April 14, 1987 (Gong1987, 826), Supreme Court Decision 95Nu6496 delivered on September 15, 1995 (Gong1995Ha, 3431), Supreme Court Decision 95Nu5905 delivered on October 12, 195 (Gong195Ha, 380), Supreme Court Decision 9Nu3979 delivered on September 16, 1996 (Gong19639 decided Feb. 27, 1996)

Plaintiff

Public Official Pension Corporation

Seoul High Court Decision 2000Nu8730 delivered on December 1, 2000

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

1. Article 61 of the former Local Public Officials Act (amended by Act No. 1794, Apr. 30, 196; hereinafter referred to as the "Act") provides that "a public official shall retire ex officio if he falls under any of the subparagraphs of Article 31." Article 31 subparagraph 5 of the Act provides that "a person who is under the period of suspension of sentence where he is subject to one of the grounds for disqualification". Article 61 of the Act provides that "a person who is under the period of suspension of sentence shall be subject to the period of suspension of sentence." Article 61 of the Act provides that "I shall automatically lose his status as a public official at the time of the occurrence of the grounds for disqualification under the subparagraphs of Article 31 of the Act without the appointing authority's expression of intention." Since a local public official who is subject to the suspension of sentence after his ipso facto retirement does not automatically lose his status as a public official, even if he is deemed to be dismissed under Article 60 of the Criminal Act (see Supreme Court Decision 90Nu595, etc.).

In calculating the plaintiff's retirement benefits, the court below's decision that the defendant's sentence of suspended sentence becomes final and conclusive during the plaintiff's previous service period, and the service period from July 14, 1980 to that of July 14, 1980, which was lawful, is excluded from total service period for the reason that the plaintiff cannot be deemed to have held a legitimate status as a public official. It is just in accordance with such legal principles and there

2. According to Article 17(1) and (2) of the Local Public Officials Remuneration Regulations, when the determination of the salary grade of a local public official is erroneous, the current person holding the authority to implement the determination of the salary grade shall correct the salary grade retroactively to the date of the issuance of the erroneous salary grade. As such, in defining the salary grade of a new public official, even though the former public official’s work experience, which was the basis of the determination includes the period of actual service as a public official after the occurrence of the reason for his/her retirement, the entire period of his/her work as a public official, but if such fact was found later, the period of actual service as a public official after the occurrence of the reason for ipso facto retirement cannot be recognized as a legitimate public official, and thus, the person holding the authority to implement the determination of the salary grade may exclude

The court below's decision that the disposition of this case that the defendant calculated and paid the plaintiff's retirement benefits based on the monthly remuneration for the correction of the plaintiff's salary class as a result of the correction of the plaintiff's salary by excluding the actual period of service after the plaintiff's reason for ipso facto retirement from the public official's work experience during the plaintiff's previous period of service in Busan Metropolitan City's judgment is just and there is no violation of law such as incomplete deliberation

3. 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 Son Ji-yol (Presiding Justice)