The case affirming an application for provisional disposition on the ground that it is difficult to readily conclude that there is an inevitable circumstance to exclude them from the duty of parking and stopping on the ground that, in case where a local government is recognized only as a public official appointed by a police officer or a Mayor, etc., and where Gap et al. issued a transfer order to assign public service workers such as Gap et al. who have been in charge of the duty of regulating parking and stopping for several years to a department not related to the duty of regulating parking and stopping, and Gap et al. filed an application for provisional disposition seeking the suspension of the validity of the above order, the case affirming the application for provisional disposition on the ground that Gap et al. has no right to directly order parking or vehicle moving, and it is anticipated that economic and living disadvantages will not be much if Gap et al. continue to work following

In the interpretation of Article 35 (1) of the Road Traffic Act and Article 12 (1) of the Enforcement Decree of the same Act, local governments have the authority to regulate parking and stopping only to police officers and public officials appointed by the mayor, etc., and issue a transfer order to assign public service workers such as Gap, etc. who have been in charge of regulating parking and stopping for several years to a department which is entirely unrelated to the duty of regulating parking and stopping, and Gap, etc. has applied for provisional disposition seeking the suspension of validity

In light of the language and text of Article 35 of the Road Traffic Act, only those public officials appointed by police officers or the head of a Si, etc. have the authority to order the change of parking method or the movement of vehicles; however, even if the driver or the manager of a vehicle violating the parking method does not order the change of parking method or the movement of vehicles, it can obtain a considerable portion of the effect of regulating parking by imposing a penalty or a fine for negligence, and the Road Traffic Act does not limit those who are authorized to detect the vehicle violating the parking regulations and report it to the Do Governor, the case holding that it is difficult to conclude that a public official or a police officer may take measures by requesting the driver, etc. of the vehicle violating the parking regulations to change the parking method or to order the movement of vehicles, and that it is difficult to directly order the driver, etc. of the vehicle violating the parking system to change the parking method or order the movement of vehicles by indirectly compelling the change of parking method or the movement of the vehicle.

Articles 35(1), 160, 161, and 163 of the Road Traffic Act; Article 12(1) of the Enforcement Decree of the Road Traffic Act

Creditor 1 and 13 others (Attorney Lee Jae-chul, Counsel for the plaintiff-appellant)

Jeju Special Self-Governing Province (Attorney Go Young-young, Counsel for defendant-appellant)

1. The debtor's order of transfer to the obligees on February 12, 2018 shall be suspended until the judgment on the merits becomes final and conclusive, respectively.

2. The costs of lawsuit shall be borne by each person;

The same shall apply to the order.

1. Basic facts

The following facts may be recognized by the records of this case, or may be obvious to this Court:

A. The obligees have entered into an employment contract with the debtor for a fixed period of time and were employed as a simple labor source. Since then, since the obligor was converted to a non-regular worker (public worker) in accordance with the guidelines for conversion of indefinite contracts for non-regular workers prepared on July 13, 2007, the obligees have continuously been in charge of the crackdown on parking and stopping since they continued to be in charge of the crackdown between March 2, 2003 and January 9, 2009 (However, as the department in charge of the crackdown on parking and stopping has changed to the Jeju-si transportation administration through the Jeju-si Transportation Safety Team, its department has changed to the Jeju-si transportation administration).

B. On January 9, 2009, the debtor, including creditors 1, creditors 5, creditors 9, creditors 11, creditors 14, etc., ordered transfer of indefinite contract workers to the City (creditor 1), environmental management division (creditor 5, obligee 11), parking management division (creditor 9), and creditors (creditor 14), and employees, including the above creditors, filed a request for remedy with the Labor Relations Commission. The Jeju Regional Labor Relations Commission dismissed all of the request for remedy of the above workers on March 20, 209, but the National Labor Relations Commission accepted the request on May 25, 2009, and accepted the request on January 9, 2009 that "the transfer of workers to the above workers was unfair, and the debtor's request on January 19, 2009 was rejected within 10 days from the date on which the debtor's request for remedy was made to the Seoul High Court's original decision to the effect that "the debtor was dismissed within 104 days from the date on which it was served with the debtor."

C. On February 12, 2018, the debtor issued a transfer order to change the obligees’ department and the assigned department (hereinafter “instant transfer order”) and the obligees filed an application for provisional disposition in this case by disputing its validity.

D. The date of conclusion of the obligees' specific employment contract, the beginning date of parking regulation business, and the present department assigned as the instant transfer order are as follows:

. On March 3, 2003, a creditor 1, 200-1, 200-1, 200-1, 3. 4. 4. 4. 4. 1. 4. 2. The environmental guidance of the creditor, 3. 4. 4. 4. 1. 2, 2001, 4. 4. 4. 4. 4. 1. 2, 2006 and the environmental management of the creditor, 5. 5. 1, 2005, 5. 4. 4. 4. 4. 1, 200, 1. 4. 4. 4. 6. 1, 2005 and 1. 8. 1, 2008. 1, 2005; and 1. 3. 4. 5. 5. 1, 2005

2. The parties' assertion

A. Summary of obligees' claims

The transfer order of this case is made without reasonable necessity, and it is null and void as it imposes significant disadvantage on the applicants in the course of their duties and life. The obligees have the right to seek suspension of its effect, and in light of all the circumstances, there is a need to urgently suspend the effect of the transfer order of this case.

B. Summary of the debtor's assertion

Article 35(1) of the Road Traffic Act and Article 12(1) of the Enforcement Decree of the same Act recognize that the right to regulate parking and stopping exercised by the creditors is limited to police officers and public officials appointed by the mayor, etc., and the creditors, who are public officials, cannot be granted such right. Thus, excluding the creditors in the duty of regulating parking and stopping is an inevitable measure to ensure the legality of such duty, and there is a need for business operations, and also the creditors’ basic benefits are not changed before and after the instant transfer order, but there are differences in the special duty allowances and overtime allowances paid by the creditors, and it is difficult to view that there is any disadvantage in their lives. Accordingly, since the instant transfer order is legitimate, the creditors’ application for suspension of its validity is without merit.

3. Determination

In determining whether a transfer disposition against a worker is valid within the scope of a legitimate personnel right, a comprehensive consideration should be given to the necessity of the relevant transfer disposition and the disadvantages of the worker’s living based on such transfer, and whether the transfer disposition was followed by the procedure required by the good faith principle in the course of performing the transfer disposition, such as consultation with the labor union to which the worker belongs (where there is no labor union

In full view of the facts acknowledged above and the following circumstances recognized by the records of this case, the transfer order of this case seems to have room for dispute about its validity, and in such a situation, if the creditors continue to work in accordance with the transfer order of this case, it is likely that the economic and living disadvantage of the creditors might be accumulated, resulting in irreparable damage.

(1) Article 35 of the Road Traffic Act provides, “When a parked vehicle in violation of Article 32, 33, or 34 of the same Act causes, or is likely to cause, danger to traffic, a person who falls under any of the following subparagraphs (a public official appointed by a police officer or the Mayor, etc. as prescribed by Presidential Decree) may order the driver of the vehicle or the person in charge of management to change the method of parking or to move from the place.” In light of the language and text, only a public official appointed by a police officer or the Mayor, etc. may be ordered to change the method of parking or to move the vehicle.”

However, even if the driver or the manager of a vehicle violating the parking and stopping method does not order the change of parking method or the movement of the vehicle, it seems that the effect of regulating the parking and stopping can be gained in a considerable part even if the penalty or the fine for negligence is imposed, and in fact, a considerable number of the regulations on the parking and stopping are imposed by means of penalty or the fine for negligence on the driver or the manager of the vehicle. In addition, the Road Traffic Act does not limit the person who is authorized to detect the vehicle violating the parking and to report it to the Do governor, the creditor who is a public official employee to detect the vehicle violating the parking and report it to the Do governor, etc.

Moreover, in the event that there is an urgent need to order the driver, etc. of a vehicle violating parking and stopping regulations to change parking methods or to move the vehicle, it is difficult to conclude that there is an inevitable reason to exclude the public official from the duty of regulating parking and stopping on the ground that there is no authority to directly order the driver, etc. to change parking methods or to indirectly compel the driver, etc. to move the vehicle by notifying the driver, etc. of the fact that the penalty or the administrative fine may be imposed on the ground of the violation of parking and stopping regulations.

In addition, creditors are less than 8 years, and more than 15 years, who have been in charge of the crackdown on parking and stopping. The transfer order of this case places creditors who have been engaged only in the crackdown on parking and stopping for the whole or most part of the service period as a department which is entirely irrelevant to the crackdown on parking and stopping, so it is doubtful about its rationality.

(2) According to the statement of No. 8-1 to 14 of the lawsuit, it is proved that the monthly salary of the remaining creditors except creditors 14 has decreased by approximately KRW 100,000 before and after the instant transfer order, and approximately KRW 600,000,000, many of the creditors have decreased. The instant transfer order appears to have a considerable economic disadvantage for creditors upon the instant transfer order. Furthermore, it is expected that the creditors who have been exclusively in charge of the parking and stopping duty for a period of 8 to 15 years have been transferred to the departments that have no relevant department.

(3) Although the debtor argues that he/she conducted several meetings with creditors and applied for a department wishing to transfer, it seems that he/she received a department wishing from creditors on the premise that the transfer order would take place, and considering the fact that the debtor's grievance settlement consultation with creditors was conducted on February 13, 2018, after the transfer order of this case, it is questionable about the effectiveness of the consultation procedure.

4. Conclusion

If so, the obligees' motion is clearly explained about the right to preserve and the necessity of preservation, so it shall be accepted and decided as per the disposition.

Judges Jin Chang-gu (Presiding Judge)