In case where a disqualified person is appointed as a public official and actually works, whether he/she may claim retirement benefits, etc. under the Public Officials Pension Act (negative)

Retirement benefits, etc. under the Public Officials Pension Act are paid in cases where a person retires while acquiring the status as a legitimate public official and serving as a public official. If there exists any ground for disqualification for appointment as a public official at the time of appointment, such appointment shall be deemed null and void a year, even if it was not revealed that he/she was disqualified due to negligence of the State. Thus, even if a disqualified person was appointed as a public official and actually served as a public official, he/she cannot claim retirement benefits, etc. under the Public Officials Pension Act if he/she did not obtain his/her status as a legitimate public official, and even if he/she continued to serve after the ground for disqualification has ceased to exist, it cannot be deemed that the invalid appointment becomes null and void, thereby restoring the status

Article 46 of the Public Officials Pension Act, Articles 38 and 39 of the State Public Officials Act

Supreme Court Decision 86Nu459 Decided April 14, 1987 (Gong1987, 826), Supreme Court Decision 95Nu6496 Decided September 15, 1995 (Gong1995Ha, 3431), Supreme Court Decision 95Nu5905 Decided October 12, 1995 (Gong1995Ha, 3800), Supreme Court Decision 95Nu9617 Decided February 27, 1996 (Gong196Sang, 1141) (Gong196Ha, 2519)

Plaintiff (Attorney Jeong-ju et al., Counsel for the plaintiff-appellant)

Public Official Pension Corporation

Seoul High Court Decision 97Gu12091 delivered on September 2, 1997

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

We examine the grounds of appeal.

The retirement benefits, etc. under the Public Officials Pension Act are paid in cases where a person retires while acquiring a status as a legitimate public official and serving as a public official. If there is any ground for disqualification for appointment as a public official at the time of appointment, such appointment shall be deemed null and void, even if it was not revealed that he was disqualified due to the national negligence. Even if a disqualified person was appointed as a public official and actually served as a public official, he cannot claim retirement benefits, etc. under the Public Officials Pension Act, if he did not obtain his status as a legitimate public official, and even if he continued to serve as a public official after the ground for disqualification has ceased to exist, he cannot be deemed to be entitled to claim retirement benefits, etc. under the Public Officials Pension Act, since the invalid appointment becomes effective, and thus, it cannot be deemed to be a party member's case (see, e.g., Supreme Court Decisions 86Nu459, Apr. 14, 1987; 95Nu9717, Dec. 27, 1996; 2037Nu13637, etc.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit.

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 Lee Yong-hun (Presiding Justice)