In case where a retired public official applies for adding up the previous service period as he is reappointed, whether the active service period already included in the previous service period may be separately removed and applied for adding without limitation on the period of application (negative)

Since the period of active duty service under the Military Service Act is naturally included in the period of service regardless of the application for inclusion of the pertinent public official under Article 23(1) and (3) of the Public Officials Pension Act, in cases where the period of service in active duty service is included in the period of service in the previous lawful period of service of the public official, even if the period of service in active duty service is later included in the previous period of service of the public official, an application for adding the period of service to the total period of service before the previous period of service including the period of service in the previous period of service shall be made within the statutory period prescribed by Article 24(1) of the same Act or Article 5 of the Addenda of the same Act,

Articles 23 and 24(1) of the Public Officials Pension Act, Article 5 of the Addenda ( December 29, 1995) of the Public Officials Pension Act, Article 2 subparag. 2, Article 4(2), and Article 7(1) of the Act on Special Cases concerning the Payment of Compensation, etc. for Disqualified Public Officials, Etc. for Retirement

[Plaintiff-Appellant] Plaintiff 1 and 15 others (Law Firm Gyeong, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant)

Plaintiff

Public Official Pension Corporation

Seoul High Court Decision 2001Nu122 delivered on August 22, 2001

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the first ground for appeal

A. The court below acknowledged the following facts based on the evidence adopted.

On January 1, 1978, the plaintiff was employed as a miscellaneous employee at the National Armed Forces Examination Production Agency (the name was changed to a "National Defense Information Agency", a again a "National Defense Information Agency") under the Ministry of National Defense on August 1, 1980, and was employed as a miscellaneous employee on August 1, 1980. On February 28, 1983, the judgment was finalized on March 8, 1983 by the Suwon District Court, which was sentenced to a suspended sentence of imprisonment with prison labor for 10 months due to the false entry of the original of a notarial deed.

The plaintiff is retired ipso facto according to the final and conclusive judgment of criminal case. However, since the plaintiff is appointed as a professional public official on July 1, 1988 (the name was changed to a "public official in contractual service according to the revision of the State Public Officials Act"), the term of the contract has been renewed whenever the term of the contract expires, and it has continued to serve as a professional public official or a public official in contractual service.

On November 30, 1999, the Director of the National Defense Relations Management Office notified the Plaintiff that the contract of employment for the period from March 8, 1983 to June 30, 198, in accordance with Article 2 subparagraph 2 and Article 4 (2) of the Act on Special Cases concerning the Payment, etc. of Compensation for Retirement of Public Officials Disqualified for Appointment (amended by Act No. 6008 of Aug. 31, 1999, enforced on December 1, 1999, hereinafter referred to as the "Special Act") shall be revoked, on the grounds that a criminal judgment, which became final and conclusive as the reason for the Plaintiff’s ipso facto retirement, was revoked.

The plaintiff was paid retirement benefits of which the period of prescription under Article 5 of the Act on Special Cases Concerning the Service Period of 7 years and 10 months, which included five years and 3 months from January 1, 1978 to March 7, 1983 (hereinafter referred to as "first period") from November 16, 1965 to June 1, 1968 (hereinafter referred to as "second period"), and retirement compensation under Article 4 of the Act on Special Cases Concerning the Service Period of 7 years and 10 months, which included the second period of private service (hereinafter referred to as "second period"), from March 8, 1983 to June 30, 198.

After that, on March 14, 200, the Plaintiff applied for a return of the retirement allowance amount corresponding to the period of seven years and ten months including the total period of Nos. 1 and 2 to the Defendant, and the Defendant applied for a return of the retirement allowance amount corresponding to the period of seven years and ten months. However, on March 24, 200, the Plaintiff did not file an application for the aggregation of the period of service within two years from July 1, 1988, which is a public official reappointed pursuant to Article 5 of the Addenda of the same Act, on the ground that the Plaintiff did not file an application for aggregation of the period of service until December 31, 1997, as a public official who is in office at the time of enforcement of this Act pursuant to Article 5 of the Addenda of the same Act.

B. The lower court determined on the basis of its findings as follows.

In addition to the notification of the cancellation of the employment contract to the plaintiff on November 30, 199, the head of the National Armed Forces Public Relations Management Office had notified the plaintiff of the cancellation of the employment contract, there is no evidence to recognize that the plaintiff was reappointed retroactively as of July 1, 198 or that the special employment was made under Article 7 (1) of the Act on Special Cases Concerning the Appointment of Public Officials. As long as the plaintiff is a professional public official whose contract term was fixed and who was appointed as a professional public official on July 1, 1988 after the cancellation of the grounds for disqualification for appointment of public officials in accordance with the final and conclusive judgment, and has been continuously employed as a professional public official on July 1, 198, 198, the head of the National Defense Public Relations Management Office notified the plaintiff of the cancellation of the employment contract with regard to the period in which the plaintiff actually worked as a public official on November 30, 1999, it cannot

Therefore, the plaintiff, as a retired public official eligible to file an application for adding up the tenure of office under Article 23(2) of the Public Officials Pension Act, should have filed an application for adding up the tenure of office within two years from the date of appointment under Article 24(1) of the same Act, or from January 1, 1996 to December 31, 197 as stipulated under Article 5 of the Addenda of the same Act, regardless of when the notification of cancellation of the employment contract was made, and thereafter, the plaintiff filed an application for adding up the tenure of office on March 14, 200. Thus, the plaintiff's application for adding up the tenure of office was filed with the aim of applying for the extension of the tenure of office, and cannot be accepted, and the disposition of this case to the same purport is legitimate.

C. In light of the records and relevant statutes, the fact-finding and judgment of the court below are justified, and there is no error of law such as misconception of facts against the rules of evidence or misunderstanding of legal principles on Article 7 of the Act on Special Cases concerning the Settlement of Facts

The grounds of appeal pointing out this issue are rejected.

2. On the second ground for appeal

The period of active duty service under the Military Service Act is naturally included in the period of service regardless of the application for inclusion of the pertinent public official under Article 23(1) and (3) of the Public Officials Pension Act (see Supreme Court Decision 86Nu142, Jul. 22, 1986, etc.). In cases where the period of active duty service is included in the previous period of service of the public official, it is necessary to apply for adding the period of service to the previous period of service, including the period of active duty service, within the statutory period stipulated in Article 24(1) of the same Act or Article 5 of the Addenda of the same Act, even if he is reappointed as a public official after the appointment, it is not necessary to include only the period of active duty service, as a matter of course, in the previous period of service, or to separate it from

The court below held that the plaintiff is not entitled to file an application for adding up the period of private service by removing only the period of service after the expiration of the period of service as long as the plaintiff had already been included in the period of two years prior to the first period of service, which is a legitimate period of service, as prescribed by Article 5 of the Act on Special Cases concerning the Settlement of Employment, and received an application for adding up the period of the first and second period of service within the period of service as prescribed by Article 24(1) of the Public Officials Pension Act or Article 5 of the Addenda of the same Act. The judgment of the court below is correct in accordance with the legal principles mentioned above and there is no error of law as to Article 7

The grounds of appeal pointing out this issue are rejected.

3. 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 Yoon Jae-sik (Presiding Justice)