[1] In a case where the head of a local government transfers public officials under his/her jurisdiction according to personnel exchange under Article 30-2 (2) of the Local Public Officials Act, whether the consent of the principal is necessary (affirmative)

[2] The case holding that an order issued by the head of the Gu to transfer public officials under his/her jurisdiction to another Gu with different appointing authority without his/her own consent is an unlawful disposition

[1] The head of a local government’s transfer of a public official under his/her control according to personnel exchange under Article 30-2(2) of the Local Public Officials Act is necessarily premised on the consent of the pertinent public official in light of the fact that the person with the appointment authority is moving to a local government with the different appointment authority, and therefore, it should be interpreted that Article 27-5(1) of the Decree on the Appointment of Local Public Officials

[2] The case holding that an order issued by the head of the Gu to transfer public officials under his/her jurisdiction to another Gu with different appointing authority without his/her own consent is an unlawful disposition

[1] Article 30-2 (2) of the Local Public Officials Act, Article 27-5 (1) of the Decree on the Appointment of Local Public Officials / [2] Article 30-2 (2) of the Local Public Officials Act

[1] Supreme Court Decision 99Du1823 delivered on December 11, 2001 (Gong2002Sang, 292)

Plaintiff (Attorney Lee Lee-soo, Counsel for plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Attorney Go Young-deok, Counsel for defendant-appellant)

Seoul High Court Decision 2007Nu22452 decided March 25, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

Article 30-2 (2) of the Local Public Officials Act provides that "When the Mayor/Do Governor deems it necessary to exchange personnel among local governments within his/her jurisdiction, he/she may prepare a personnel exchange plan in accordance with the personnel exchange standards set by the personnel exchange council established in the City/Do concerned and recommend the head of the local government within his/her jurisdiction to exchange personnel. In such cases, the head of the local government concerned shall comply with it unless there is any justifiable reason." Thus, the transfer of public officials under his/her jurisdiction by the head of the local government according to the personnel exchange under the above provision is necessarily premised on the consent of the public official concerned in light of the fact that the public official is moved to the local government with different appointing authorities (see Supreme Court Decisions 9Du1823, Dec. 11, 2001; 98Hun-Ba101, 99Hun-Ba8, Nov. 28, 2002). Therefore, the provision of Article 27-5 (1) of the Decree on the Appointment of Local Public Officials under the above provision shall not be interpreted.

According to the facts established by the court below, as part of personnel exchange under the above provision, the defendant issued an order of transfer of this case to Guro-gu, which orders the plaintiff, who is a public official belonging to the court below, to transfer to another person with the appointment authority without the consent of the plaintiff, and if there are such circumstances, the order of transfer of this case shall be revoked as an illegal disposition without the consent

The court below, based on its stated reasoning, determined that the transfer order of this case without the Plaintiff’s consent was lawful on the premise that the personnel exchange under the above provision is unnecessary for the pertinent public official’s consent. The court below erred by misapprehending the legal principles as to whether the consent of the pertinent public official is necessary or not in the personnel exchange under Article 30-2 of the Local Public Officials Act, which affected the judgment.

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)