Plaintiff 1 and one other (Attorney Lee Im-soo, Counsel for the plaintiff-appellant)

The Head of Seoul Regional Employment and Labor Agency

November 22, 2019

Seoul Administrative Court Decision 2018Guhap89190 decided July 11, 2019

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance is revoked. The defendant's rejection disposition against the plaintiffs on July 6, 2018 shall be revoked.

1. Quotation of the first instance judgment

The reasoning for the judgment of this court concerning this case is as follows, except for the following parts and the part which the plaintiff saw or additionally claims in the trial, and therefore, it is consistent with the reasoning of the judgment of the court of first instance. Thus, this court cites it in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (other contents asserted in the trial of the court of first instance are not significantly different from those asserted in the court of first instance, and even if all of the evidence presented in the court of first instance and the trial are examined, the fact-finding and judgment of the court of first instance

[Supplementary Use]

○○ The 14th page 2 of the first instance judgment “by January 28, 2018” is regarded as “by January 22, 2018.”

○ 3 pages of the judgment of the first instance court, the phrase “Evidence A 1, 2, and 1 through 6” of 4 parallels from the following 3 pages of the judgment of the first instance shall be read as “Evidence A 1, 2, and Evidence A 1 through 6.”

○○ 6th of the first instance judgment, the evidence No. 8 of the 17th of the 17th of the 17th of the 17th of the 17th of the 1

【Supplementary Decision】

A. The plaintiff's assertion

① The provision of this case is a provision for recognizing non-regular work experience, and it is not a provision for excluding the career experience of part-time counselors. ② The non-existence of part-time counselors on the part of part-time work is an excessive discriminatory act in comparison with a normal counselor corresponding to the same class system. ③ The non-recognition of part-time counselors’ work experience constitutes an excessive discriminatory act even in comparison with a part-time public official performing the same work hour. ④ Even if the recommendation is made upon the decision of the National Human Rights Commission pursuant to the recommendation of the National Human Rights Commission, it is evident discrimination that the non-recognition of work experience as part-time counselors’ work experience is not recognized as work experience. ⑤ In light of the fact that the part-time counselor’s work experience is not recognized as a similar work experience to define salary classes, the non-time counselor’s work experience itself is likely to disappear with the part-time counselor’s work experience itself during the part-time work period, and thus, the Plaintiffs’ work experience should be included in the calculation of work experience per five hours in the weekly work period of this case.

B. Determination

In light of the following circumstances that can be seen by comprehensively considering the purport of the entire arguments as seen earlier, the Plaintiffs’ assertion that the Plaintiffs’ work experience in the instant case, who worked as a part-time counselor, ought to be reflected in defining the beginning salary class of the Plaintiffs, is without merit, while maintaining a labor relationship with the employer on a regular basis.

In other words, the career recognition system was introduced in order to attract talented human resources with expertise as public officials and to rationalize the treatment of public officials with different career experience at the same time. In particular, recognition of career experience in private enterprises is intended to attract talented human resources with expertise, technology, and experience in order to enhance the international competitiveness of public service and promote the specialization of administration. In order to actively attract excellent human resources in a specific field, it is deemed that the scope is extended to require identity only in the field of work from a private enterprise to a general private enterprise, and from a private enterprise to a specific qualification and work field (see, e.g., Constitutional Court en banc Order 2006HunMa192, Dec. 26, 2008; Constitutional Court en banc Decision 201Hun-Ma437, Nov. 28, 2013). However, the provision that recognizes career experience in public officials is granted to those with previous career experience, and thus, it is necessary to interpret the provision of this case to the legislative purport of the Constitutional Court en banc Decision 2018Hun-Ga131, etc.

② Article 4-4(1) of the former Public Officials Remuneration Regulations (amended by Presidential Decree No. 23497, Jan. 6, 2012) provides that “The career of private job counselors under Article 4-4(1) of the Employment Security Act shall be changed to 80 percent of that of “the career of private job counselors”, but attached Table 16 subparag. 2-7 of the Public Officials Remuneration Regulations (amended by Presidential Decree No. 23497, Jan. 6, 2012) provides that “the career of private job counselors who work full-time under Article 4-4(1) of the Employment Security Act shall be changed to 10 percent of that of private work experience in the same field and 80 percent of that of non-identical work experience in the same field.” However, the said Public Officials Remuneration Regulations (amended by Presidential Decree No. 23497, Jan. 6, 2012) shall clearly state the criteria for recognition of non-regular work experience in the same field and recognize the discrimination of non-permanent work experience from 20.”

③ 한편, ㉠ 통상상담원과 단시간상담원이 근로시간 외에 직급이나 직무 면에서 차이가 없는 점, ㉡ 시간선택제공무원이 공무원보수규정 제8조 별표 15, 별표 16 제1의 가항에 따라 초임 호봉 획정 시 경력을 인정받는 점, ㉢ 이에 국가인권위원회 차별시정위원회가 ‘공무원 경력이 아닌 유사경력 인정과 관련하여 임용 전 기관에서 통상의 상근 근로자와 동일·유사한 근로형태를 가졌음에도 경력의 가치를 개별적으로 검토하지 않고 근무형태라는 형식적 요소만을 보고 통상 근로자의 근무시간으로 근무하지 않았다는 이유로 비상근으로 보아 유사경력으로 인정하지 않는 것은 합리적 이유 없는 평등권 침해의 차별행위라고 판단된다.’라는 이유로 ‘유사경력을 평가할 때 통상적인 근무시간보다 짧게 근무하는 다양한 근무형태를 반영하여 “상근”의 의미를 규정할 것’을 권고한 점, ㉣ 소청심사위원회도 원고들의 소청심사 사건에서 ‘향후 상근 개념에 대한 확대 해석, 시간 단위 경력 인정 및 비상근 경력에 대한 인정 가능 여부 검토 등 현행 공무원보수규정의 경력 인정 제도에 대해 전반적인 개선 검토도 필요할 것으로 사료된다.’는 의견을 첨부한 점이 인정되기는 한다.

However, it cannot be deemed that discrimination based on career experience does not constitute a case requiring equality in the Constitution. As seen earlier, in defining the salary grade of a public official, the former provision that recognizes the career of the public official is providing a kind of benefit to the person with the career in question, and thus constitutes a law of mutually advantageous nature. Therefore, the legislators have the authority to make a legislation that determines the appropriateness of the former, taking into account the legislative purpose, beneficiary status, national budget or ability to compensate, etc. Therefore, it cannot be concluded that discrimination is unreasonable even if limited financial resources recognize the career of the career of the public official or similar career of the public official more broadly (see, e.g., Constitutional Court en banc Decision 201Hun-Ma437, Nov. 28, 2013; Constitutional Court Decision 201Hun-Ma437, Nov. 28, 2013).

④ Also, in interpreting the meaning of the instant provision, it is not necessary to expand the interpretation by taking into account the purpose of introducing the part-time job counselor system (such as leading the creation of part-time jobs in the public sector and providing high-quality part-time jobs to career-interrupted women who have a burden on childbirth and childcare).

2. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is just, the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Han Chang-hun (Presiding Judge)