2012Guhap16824 Verification of the Status of Public Officials

1. A;

2. B

[Judgment of the court below]

Korea

Attorney Lee Jae-in, Counsel for the defendant-appellant

August 23, 2012:

October 11, 2012

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The plaintiffs and the defendant confirm that they are the state public officials belonging to each National Intelligence Service.

1. Details of the instant case

A. On August 21, 1986, Plaintiff A and Plaintiff B performed the National Intelligence Service’s work at the National Intelligence Service on September 22, 1986, as a state public official of Grade 10 in each function, and as a state public official of Grade 10 in each function, and were in charge of editing publications). After all, the Plaintiffs raised the level of skills on June 1, 1989 and on June 1, 199, respectively, to Grade 9 in the function of Grade 9 and Grade 8 in the work group of administrative assistance. Since the establishment of the work category of computerized type (electronic type) in the work group of administrative assistance, the Plaintiffs were affiliated with the work of editing publications, etc.

B. On March 31, 1999, attached Table 2 of the Enforcement Decree of the National Intelligence Service Employee Act was amended, and the National Intelligence Service abolished six of the six categories of computerized typesetting, entry, telephone exchange, guidance, field line, and honor (hereinafter “the abolition of the instant series of class”).

C. As the job series to which the Plaintiffs belong, the Plaintiffs were dismissed from office on April 30, 199. On May 1, 1999, the Plaintiffs were re-appointed as a contracting officer (exclusive contractual officer) and continued to work for the National Intelligence Service on December 31, 2010, and Plaintiff A retired from office on June 30, 2010.

D. On September 13, 2010, the Plaintiffs filed a lawsuit against the Defendant seeking unpaid wages from July 2007 to March 201, 201 (Seoul Central District Court Decision 2010Da372729) and the Defendant’s entire failure decision was rendered to the effect that the abolition of the instant series of class cannot be deemed null and void on June 23, 201, while the appeal was dismissed on November 10, 201, and the said judgment became final and conclusive on December 3, 2011.

[Ground of recognition] Facts without dispute, Gap evidence 1 (including each number where there are several numbers), Gap evidence 2, Eul evidence 5 through Eul evidence 9, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) Summary of the plaintiffs' assertion

(A) According to the National Intelligence Service Contract Employee Regulations, the upper age limit for computerized typesetting, entry work, telephone exchange, and guidance work that only women are employed shall be set at 43 years of age, and the upper age limit for women only are set at 57 years of age, and the upper age limit for women only are set at 57 years of age, thereby violating gender equality. The determination of the upper age limit for computer typesetting work for the plaintiffs as 43 years of age is illegal, because it is a discrimination based on gender without reasonable grounds.

B) According to Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”), even if the Plaintiffs were to retire due to the expiration of the upper age limit for duties, rather than the expiration of the contract period, they shall be regarded as an employee with no fixed period of time in the case of a fixed-term worker who continues to work for more than two years with an employer. In the case of the Plaintiffs, in excess of two years, the Plaintiffs continued to serve as a state public official in the NIS, and thus, they

(2) Summary of the defendant's assertion

The plaintiffs are public officials in contractual service who retire due to the expiration of the contract term, not the upper age limit or retirement age, and they are subject to the exception provisions that do not fall under those workers who do not have the fixed time limit under the Fixed-Term Workers Act, and therefore they cannot be deemed to

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the first argument of the plaintiffs

(가) 우선, 국가정보원장이 제정한 위 계약직 직원규정의 효력에 대하여 살펴본다. ① 국가정보원직원법 제3조에서는 국가정보원직원의 직무의 내용과 특수성을 고려하여 필요한 경우에는 계약직직원을 둘 수 있으며(제1항), 계약직 직원은 국가공무원법에 따른 계약직공무원으로 보되, 채용조건, 절차, 그 밖의 필요한 사항은 대통령령으로 정한다(제2항)고 규정하고 있고, 국가정보원직원법 시행령에서는 계약직 직원은 국가정보원장이 채용하되, 그 채용방법 및 채용자격기준은 국가정보원장이 정한다고 규정(제 2조의3 제2항)을 두고 있다. 이에 따라 국가정보원장은 계약직 직원규정을 마련하여 시행하고 있는데, 위 규정 제3조에서는 계약직 직원을 복무형태에 따라 전임계약직 직원과 비전임계약직 직원으로 구분하면서 전임계약직 직원은 상근하면서 직무를 수행하는 직원이라 규정하고 있고, 제15조에서는 계약직 직원의 채용기간을 3년의 범위 안에서 계약사업에 필요한 기간으로 정하도록 하고 있으며(제1항), 정원 인가시 사업기간이 별도 명시된 경우에는 해당기간이, 명시되지 않은 경우에는 2년의 기간이 약정된 것으로 간주하고 있다(제2항), 또한, 전임계약직 직원의 근무상한연령과 관련하여 '안전: 만 30세, 상담, 전산사식, 입력작업, 안내: 만 43세, 의료기사, 간호사, 영양사, 영선, 원예: 만57세, 의사: 만 65세, 기타 분야: 만 60세'로 규정하고 있다(제20조). ② 한편, 국가공무원법 제2조 제4항에서는 '별정직공무원과 계약직 공무원의 채용조 건·임용절차 근무상한연령, 그 밖에 필요한 사항은 국회규칙, 대법원규칙, 헌법재판소규칙, 중앙선거관리위원회규칙 또는 대통령령으로 정한다'고 규정하고 있는데, 이에 따라

Article 6(1) of the current Regulations on the Personnel Management of Public Officials in Special Services, who are Presidential Decree, sets the age limit of 60 generally, but the Enforcement Decree of the National Intelligence Service Act or the Regulations on Public Officials in contractual Service only provides for the employment period, and do not separately provide for the provisions on the upper age limit for public officials. In the case of public officials in contractual service, the reason why the provisions on the upper age limit for public officials are not provided for separately by Presidential Decree, is that in order to promote flexibility in the operation of the public officials in contractual service system that allows them to engage in duties that require flexibility, etc. in accordance with a employment contract

This is because it is not necessary to set the upper age limit, such as the upper age limit for public officials in extraordinary civil service separately designated by the laws and regulations, and rather, it is reasonable to have the head of each agency make flexible decisions with regard to the employment and work period of public officials in contractual service in consideration of the work of each agency and the status of human resources management. Therefore, the provision of contractual workers in contractual service, which set the upper age limit for public officials in contractual service of the National Intelligence Service, does not deviate from the purport or scope of delegation of superior Acts and subordinate statutes, such as the National Intelligence Service Employees Act and the

(B) Examining the following facts: (a) whether the upper age limit for female employees was set as 43 years of age or not; (b) comprehensively considering the following circumstances, it cannot be deemed that the said provision violates the provisions on contractual employees, such as Article 6 of the Labor Standards Act, Article 17(1) of the Framework Act on Women’s Development, and Article 11(1) of the Act on Assistance to Gender Equality and Family Balance Assistance. In other words, the abolition of the instant provision was carried out upon the government’s restructuring under the circumstances of the so-called IMF financial crisis; (c) the NIS’s regulations on the reduction of the number of working age for female employees by 43 years of age or by reflecting the results of its self-examination of the above 3th working age limit for female employees; and (d) the current provision on the reduction of the number of working age for female employees by 3 years of age or by taking into account the characteristics of the aforementioned regulations on the fixed number of working group, and thus, the current provision on the reduction of working age for female employees by 9 years of employment.

(C) Furthermore, in addition to the statement of evidence Nos. 3, 3, 6, 7, 8, and 9, the head of the NIS provides guidelines to extend the contract period by 45 years of age notwithstanding the upper limit of the working age under the above contract-based employees regulations after the amendment of the Enforcement Decree of the National Intelligence Service Employee Act on March 31, 1999 (the above guidelines include the contents related to ex officio dismissal, honor, early retirement, etc., which requires necessary measures for human resources management, in addition to the matters related to contract public officials) and ② Accordingly, the Plaintiffs (the mother was born in 1965 and reached 43 years of age in 208). The final contract period after the expiration of 43 years of age, which is the maximum working age stipulated in the contract-based employees regulations, may be recognized as having expired (the plaintiff 200, Feb. 31, 2010).

Even if examining these circumstances, the Director of the National Intelligence Service, rather than forcing female workers to perform the discriminatory upper age limit for job placement under the contract employee regulations, led the Plaintiffs to be employed in a contracting position by inevitably restructuring, etc. in light of the need for restructuring the National Intelligence Service organization and human resources operation at the time of 1999, and then the employment relationship is terminated due to the expiration of the final contract period.

(D) Ultimately, the Plaintiffs’ assertion to the effect that the retirement of the Plaintiffs constitutes a discrimination based on gender, and thus, is unlawful, based on the upper age limit for duties invalid.

(2) As to the second argument by the plaintiffs

(A) First, we examine whether the Plaintiffs constitute a contract public official for life.

(1) Article 4 of the Fixed-term Workers Act provides that an employer may employ a fixed-term worker within a period not exceeding two years (the main sentence of paragraph (1)), and that if a fixed-term worker is employed for more than two years, the fixed-term worker shall be regarded as an employee who has entered into an employment contract without a fixed period of time (hereinafter referred to as "non-fixed-term worker"): Provided, That the proviso to Article 4 (1) of the Fixed-term Workers Act provides for the exception (which shall not be regarded as an inorganic worker even if the period exceeds two years) for which a fixed-term worker may be employed for more than two years under subparagraphs 1 through 6, and Article 3 (3) 1 of the Enforcement Decree of the Fixed-term Workers Act provides that "other cases prescribed by the Presidential Decree where a reasonable ground prescribed by the Presidential Decree exists, such as cases prescribed by the Presidential Decree, which correspond to Article 4 (1) 6 of the Act and Article 4 (1) 4 of the Enforcement Decree of the Fixed-term Workers Act, the term Workers Act provides that "other cases prescribed by Presidential Decree No. 3 (1)" can be interpreted as a fixed-term worker.

(2) On the other hand, Article 6 of the Regulations on Contract-Related Officials applied mutatis mutandis under Article 2-3(4) of the Enforcement Decree of the National Intelligence Service Employee Act provides that the period of employment of contract-related public officials (excluding temporary contract-related public officials) shall be the period necessary for performing the relevant project within the scope of five years (paragraph (1)). The head of each agency may conclude a labor contract by setting a separate period, such as providing that the total period of employment of contract-related public officials may be extended by up to five years (paragraphs (2) and (3). As seen earlier, the head of the National Intelligence Service, according to delegation by Article 2-3(2) of the Enforcement Decree of the National Intelligence Service Employee Act

③ In other words, the above National Intelligence Service Employee Act, Enforcement Decree of the Act on the Management of Employees of National Intelligence Service and the Regulations on Contract Employees, which stipulate exceptions in cases of deeming a contract worker as a contract worker under the Fixed-Term Act, and Article 4(1)6 of the Fixed-term Employment Act and Article 3(3)1 of the Enforcement Decree of the Fixed-Term Employment Act, are applicable to cases where the term of employment of fixed-term workers is determined differently from Article 4(1) of the Act, or where it is allowed to enter into an employment contract by fixing a separate period of time. Meanwhile, since the term of the contract of the public official of the National Intelligence Service is in accordance with the relevant Acts and subordinate statutes, the term of the contract of the public official of the contract of the National Intelligence Service is formally established, so it cannot be deemed that the plaintiffs are in the position of a contract worker even if the contract worker has been concluded again after the lapse of 5 years of the total employment period and 10 years of the extended employment period. However, it seems that there is no ground to convert the status of the full-time public official.

④ Furthermore, even if the plaintiffs can be regarded as a contracting officer for life, the remaining working conditions except for the working period are in accordance with the existing working conditions. As such, the plaintiffs, who are not regular workers, are subject to the provisions on contractual employees in addition to the contract period, and as long as the upper age limit of duties and the guidelines for the director of the NIS whose extension was extended cannot be deemed null and void under the provisions on contractual employees, it is difficult to view that the plaintiffs retired from office in excess of the upper age limit of duties in accordance with the regulations on contractual employees, thereby lacking legitimacy.

(B) Next, we examine the rationality of the defendant's refusal to renew the contract.

The plaintiffs have been employed as a public official in contractual service upon repeated renewal of their employment contracts for more than 11 years. In full view of the various circumstances surrounding employment relations, such as the motive and background of the contract being concluded, the criteria and procedures for renewal of the contract, the actual condition thereof, and the details of the duties performed by the plaintiffs, etc., there is room to regard the plaintiffs as obtaining the legitimate expectation right for renewal of the employment contract as the formation of trust relationship that the renewal of the contract is renewed even if the contract term expires even if the contract term expires, and thus, it is necessary to consider the defendant's refusal of renewal and the reasonable measure to retire the plaintiffs (i.e., the criteria for determining the renewal of the contract for the public official in contractual service, what is the defendant's operation, whether the plaintiffs' work performance is unnecessary, whether the plaintiffs' previous work experience is not required, and whether the plaintiffs' previous work characteristics are constantly demanded. However, even if the right to expect renewal is acknowledged, it is difficult to view the plaintiffs' right to refuse renewal of the contract as a public official under the age of the defendant's employees.

(C) Ultimately, neither the mother nor the plaintiffs' above assertion is justified.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges of the presiding judge;

Judges Cho Byung-gu

Judges Regularly

A person shall be appointed.

A person shall be appointed.