[1] Whether the previous employment relationship of a person who retired from the status of a public official of the Korea Railroad Corporation at the time of the establishment of the Korea Railroad Corporation is naturally succeeded to the Korea Railroad Corporation (affirmative)

[2] In a case where a state public official who received a suspended sentence of imprisonment without prison labor or heavier punishment and retired ipso facto from office loses its effect pursuant to Article 65 of the Criminal Act, whether the effect of the sentence already occurred shall be lost (negative)

[3] The case holding that in case where Gap had been employed as a public official of the Korea Railroad Corporation on January 1, 2005 while serving as a public official of the Korea Railroad Corporation while serving as a public official of the Korea Railroad Corporation, and was employed as a public official of the Korea Railroad Corporation on January 1, 2005, the case holding that since Gap had already lost his status as a public official of the Korea Railroad Corporation at the time when the above suspended sentence became final and conclusive, his status cannot be changed as an employee of the Korea Railroad Corporation under Article 7 (1) and (2) of the Addenda of the Korea Railroad Corporation Act (amended by December 31, 2003), and therefore Gap's appointment on the premise that he had status as a public official of the Korea Railroad Corporation shall be automatically null and void

[1] Articles 21(3) and 25(1) of the Framework Act on Railroad Industry Development; Articles 1, 7(1), (2), and (4) of the Addenda of the Korea Railroad Corporation Act (amended by Act No. 6788, Dec. 18, 2002) / [2] Articles 33(1)4 and 69 of the former State Public Officials Act (amended by Act No. 6788, Dec. 18, 2002); Article 65 of the Criminal Act / [3] Articles 21(3) and 25(1) of the Framework Act on Railroad Industry Development; Articles 1, 7(1), (2), and (4) of the Addenda of the Korea Railroad Corporation Act; Articles 33(1)4 and 69 of the State Public Officials Act

[1] Supreme Court Decision 2003Da39644 Decided March 25, 2005 (Gong2005Sang, 647) / [2] Supreme Court Decision 2001Du205 Decided July 26, 2002 (Gong2002Ha, 2068)

Plaintiff (Attorney Lee Young-chul, Counsel for the plaintiff-appellant)

Korea Railroad Corporation (Law Firm Han-ro, Attorneys Lee Na-soo, Counsel for plaintiff-appellant)

Daegu High Court Decision 2007Na7547 decided June 12, 2008

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

The grounds of appeal are examined.

In the case of transferring a specific project carried out by the State or a local government to a corporation newly established by a law, the scope of rights and obligations to be succeeded to a newly established corporation by a legislative policy decision may be determined in light of the fact that there is a change in the status of the human organization and there is a difference in the law regulating it (see Supreme Court Decision 2003Da39644, Mar. 25, 2005).

Meanwhile, Article 21(3) of the Framework Act on Railroad Industry Development provides that “The State shall establish the Korea Railroad Corporation (hereinafter “the Korea Railroad Corporation”) by Special Act by converting the relevant organization of the Korea National Railroad and the Korea High-Speed Rail Construction Authority to efficiently manage railroad operation-related projects.” Article 25(1) of the same Act provides that “The Korea National Railroad Corporation and the Korea High-Speed Construction Authority shall comprehensively succeed to the employment of employees of the Korea National Railroad and employees of the Korea High-Speed Construction Authority, excluding those who continue to maintain their status as public officials among the employees of the Korea National Railroad Corporation.” Accordingly, Article 7(1), (2) and (4) of the former Addenda of the Korea National Railroad Corporation (amended by Act No. 7052, Dec. 31, 2003; hereinafter the same shall apply) shall ensure that the head of the Korea National Railroad Corporation may appoint employees of the Korea National Railroad Corporation, other than those who maintain their status as public officials and those appointed as public officials at the time of the establishment of the Korea National Railroad Corporation.”

In light of the language and legislative intent of the above provisions, the previous labor relationship of a person retired from the status of a public official belonging to the Korea Railroad Corporation at the time of establishment of the Korea Railroad Corporation pursuant to Article 7 (1), (2) and (4) of the Addenda of the former Korea Railroad Corporation Act shall be deemed naturally succeeded to the Korea Railroad Corporation

Meanwhile, Article 69 of the former State Public Officials Act (amended by Act No. 6788, Dec. 18, 2002; hereinafter the same) provides that "a public official who falls under any of the subparagraphs of Article 33 shall retire ex officio," and Article 33 (1) 4 of the same Act provides that "a person who was sentenced to imprisonment without prison labor or heavier punishment and for whom two years have not passed from the date on which the period of suspension of the execution expires," among the grounds for disqualification, shall be one of the grounds for disqualification. The ipso facto retirement system provided for in Article 69 of the former State Public Officials Act, by itself, shall lose his status as a public official at the time of disqualification without the appointing authority's expression of intent, and shall not automatically lose his status as a public official at the time of disqualification without the appointing authority's expression of intent. Thus, where a state public official is subject to a suspended sentence of imprisonment without prison labor or more, even if the sentence becomes invalidated pursuant to Article 65 of the Criminal Act, it shall not affect ipso facto.

According to the reasoning of the judgment below, while the plaintiff was appointed as a public official of the Korea Railroad on February 5, 1991 and was working on January 1, 2005, the Daegu District Court sentenced 10 months of imprisonment and 2 years of suspension of execution to the Act on the Aggravated Punishment, etc. of Specific Crimes on August 5, 1997. The above judgment became final and conclusive on December 8, 1998. However, the Korea Railroad Corporation did not know such circumstances and did not take any measures against the plaintiff, and the plaintiff actually continued to work as a public official of the Korea Railroad. After which the Korea Railroad was abolished through the structural reform under the Framework Act on Railroad Industry, and the defendant was established as a public corporation. The plaintiff retired from the status of the public official of the Korea Railroad, and the defendant was appointed as the defendant's employee on January 1, 2005 under Article 7 of the Addenda to the Korea Railroad Corporation Act, and the defendant becomes aware of the fact that the above grounds occurred automatically, and the defendant constitutes "the person subject to disqualification under Article 201 (3.)" of the judgment.

Examining the above facts in light of the legal principles as seen earlier, the Plaintiff already lost his status as a public official of the Korea Railroad Corporation at the time when the judgment of the suspension of the above execution became final and conclusive on December 8, 1998, and thus, the Defendant’s employee cannot be converted pursuant to Article 7(1) and (2) of the Addenda to the former Korea Railroad Corporation. Therefore, the Defendant’s appointment on January 1, 2005 against the Plaintiff, which was based on the premise that the Plaintiff had a status as a public official of the Korea Railroad Corporation, is an inevitable

In addition, the notification of this case is merely to confirm and inform that the plaintiff already lost his status as a public official due to the final and conclusive judgment of suspended execution, and that the act of appointment as of January 1, 2005 was null and void as a matter of course, and it does not cause any legal relationship between the plaintiff and the defendant. Thus, the plaintiff has no interest in legal action seeking confirmation of invalidity of the notification of this case (see Supreme Court Decision 93Da61789 delivered on July 29, 1994, etc.).

The reasoning of the court below is different, but it is just to dismiss the claim seeking nullification of the notification of this case, and to reject the claim seeking confirmation of the status of workers and payment of wages on the premise that the plaintiff has maintained his status as an employee of the defendant. Therefore, there is no error of law affecting the judgment

Therefore, the appeal is dismissed, and the 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 Shin Young-chul (Presiding Justice)