Main Issues
[1] Whether the previous labor 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), and whether the labor relationship of a person who actually worked in the above construction has been succeeded to even though he had lost his status as a public official (negative
[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 it is null and void to appoint a person who has been actually on duty while serving as a public official of the Korea Railroad Corporation and has been under a final and conclusive judgment of suspension of execution
Summary of Judgment
[1] In light of the fact that there is a change in the status of the human organization and there is a difference in the laws regulating it, the scope of the rights and obligations to be succeeded to the construction newly established by legislative policy judgment may be determined. However, Article 21(3) of the Framework Act on Railroad Industry Development provides that “The State shall establish the Korea Railroad Corporation (hereinafter “KR”) under special Acts by converting the relevant organizations of the Korea Railroad and the Korea High-Speed Railroad Corporation to efficiently operate the railroad operation-related business,” and Article 25(1) of the same Act provides that “the Korea Railroad Corporation and the Korea Railroad Facilities Corporation shall succeed to the employment of the employees of the Korea Railroad and the Korea High-Speed Railroad Corporation other than those who continue to maintain their status as public officials among the employees of the Korea Railroad Corporation and the Korea High-Speed Railroad Corporation” (Article 7(1), (2), and (4) of the Addenda of the Korea Railroad Corporation (amended by Presidential Decree No. 20035, Dec. 31, 2003). 202>
[2] Article 69 of the former State Public Officials Act (amended by Act No. 6788 of Dec. 18, 2002) provides that "a public official falls under any of the subparagraphs of Article 33, ipso facto retirement shall be made." 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 execution expires." The ipso facto retirement system provided for in Article 69 of the same Act provides that "a person who was subject to a suspended sentence of 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 execution expires." The ipso facto retirement system provided for in each subparagraph of Article 33 (1) of the same Act must naturally lose his status as a public official at the time of disqualification without the declaration of intention of the appointing authority. Since it cannot be automatically terminated after the date on which the ipso facto retirement becomes effective.
[3] The case holding that in case where Gap, while serving as a public official of the Korea Railroad Corporation while serving as a public official of the Korea Railroad Corporation on January 1, 2005 while serving as a public official of the Korea Railroad Corporation, retired from the status of public official of the Korea Railroad Corporation and actually served as a public official of the Korea Railroad Corporation, Gap is not allowed to change his status as a public official 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) since he 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, and therefore Gap's appointment as a public official of the Korea Railroad Corporation on January 1, 2005
[Reference Provisions]
[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
Reference Cases
[1] Supreme Court Decision 2003Da39644 Decided March 25, 2005 (Gong2005Sang, 647) / [2] Supreme Court Decision 2001Du205 Decided July 26, 2002 (Gong2002Ha, 2068)
Plaintiff-Appellant
Plaintiff
Defendant-Appellee
Korea Railroad Corporation (Law Firm Han-ro, Attorneys Lee Na-soo, Counsel for plaintiff-appellant)
Judgment of the lower court
Daejeon High Court Decision 2008Na7305 Decided November 14, 2008
Text
Of the main claims of the lower judgment, the part of the claim for nullification of the notification of revocation of new appointment of an employee is reversed, and the judgment of the first instance is revoked, and the lawsuit is dismissed. The remaining appeals are dismissed. The costs of appeal and the total costs of appeal are assessed against the Plaintiff.
Reasons
1. In a case where a specific project carried out by the State or a local government is transferred to a construction newly established under the Act, the scope of rights and obligations to be succeeded to the construction newly established 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 legislation regulating the physical organization (see Supreme Court Decision 2003Da39644, Mar. 25, 2005). However, Article 21(3) of the Framework Act on Railroad Industry Development provides that “The State shall establish the Korea Railroad Corporation (hereinafter referred to as “KR”) by converting the relevant organizations of the Korea Railroad and the Korea High-Speed Rail Construction Authority to efficiently manage the railroad operation-related projects, and Article 25(1) of the same Act provides that “The Korea Railroad Corporation and the Korea Railroad Facilities Corporation shall succeed to the employment of public officials, excluding those who continue to maintain their status as public officials among the employees of the Korea Railroad Corporation and the Korea Railroad Facilities Corporation’s employees, who shall be appointed by the Korea Railroad Corporation as public officials, and its employees shall be appointed as public officials.
In light of the language and legislative intent of the above provisions, the previous labor relationship of a person who 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. In such cases, the labor relationship succeeded refers only to the labor relationship with a person who has a status as a public official of the Korea Railroad Corporation as of January 1, 2005, and at that time, does not succeed to the labor relationship of a person who has already lost the status as a public official of the Korea
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 falls under any of the subparagraphs of Article 33, he/she shall automatically retire." 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 execution expires." The ipso facto retirement system provided for in Article 69 of the former State Public Officials Act provides that "a person for whom two years have not passed from the date on which the period of suspension of execution was terminated." The disqualification system provided for in each subparagraph of Article 33 (1) of the former State Public Officials Act naturally loses his/her status as at the time of the disqualification without the person having appointment authority's expression of intention. Thus, if a State public official is subject to a suspended sentence of imprisonment without prison labor or more, it cannot be invalidated after his/her automatic retirement."
According to the reasoning of the judgment of the court below and the reasoning of the judgment of the court of first instance partially accepted by the court below, while serving as a public official of the Korea Railroad on June 24, 1995, the plaintiff was sentenced to two years of suspension of execution on December 15, 200 by imprisonment with prison labor for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes, etc., by the Daejeon District Court on August 14, 2001. The above judgment became final and conclusive on August 14, 2001. However, the Korea Railroad Corporation did not take any measures against the plaintiff because it did not know of such circumstances. The plaintiff was actually serving as a public official of the Korea Railroad Corporation on January 1, 2005, and was retired from office under Article 7 (4) of the Addenda of the former Korea Railroad Corporation Act, and was actually serving as the defendant's employee on March 13, 2008. The defendant can be cancelled to the plaintiff on March 13, 2008.
In light of the above facts in light of the legal principles as seen earlier, since the judgment of suspension of the above execution became final and conclusive on August 14, 2001, the plaintiff has already lost his status as a public official of the Korea Railroad Corporation at that time, the defendant's employee cannot be converted pursuant to Article 7 (1) and (2) of the Addenda to the former Korea Railroad Corporation, and therefore, the defendant's appointment on January 1, 2005 premised on the fact that the plaintiff has a status as a public official of the Korea Railroad
2. First, we examine ex officio the claim for nullification of the notification of this case.
As seen above, the Plaintiff asserted that the notice of this case issued to the Plaintiff on March 13, 2008 was invalid and sought confirmation of its invalidity.
However, the plaintiff is deemed to have lost his status as a public official of the Korea National Railroad at the time when the suspended sentence of August 14, 2001 became final and conclusive, and the defendant's appointment on January 1, 2005 is null and void. Therefore, the defendant's notification of this case is only to confirm and notify that the plaintiff already lost his status as a public official due to the final and conclusive judgment of the suspended execution, and that the appointment on January 1, 2005 is null and void, and it does not result in any legal relationship between the plaintiff and the defendant. Thus, the plaintiff has no interest in filing a lawsuit to seek nullification of the notification of this case.
Nevertheless, the lower court determined that the Plaintiff had an interest in seeking confirmation of invalidity of the notification of this case against the Defendant, which affected the conclusion of the judgment by misapprehending the legal principles as to the interest in confirmation.
3. Furthermore, in light of the foregoing legal principles and the facts acknowledged by the record, the lower court was justifiable to have rejected the instant claim to confirm the status of an employee and the claim to pay wages on the ground of appeal on the claim to verify the status of employee and the claim to pay wages, which is based on the premise that the Plaintiff has maintained the status as an employee of the Defendant.
The judgment of the court below is not erroneous in the misapprehension of legal principle as otherwise alleged in the ground of appeal.
4. Therefore, among the parts concerning the main claim of the judgment below, the part concerning the claim for nullification of the notice of revocation of new appointment of an employee is reversed, and this case is sufficient for the Supreme Court to directly render a judgment. Accordingly, this part of the lawsuit is inappropriate in accordance with Article 437 of the Civil Procedure Act. According to the above, this part of the judgment of the court below is reversed as there is no benefit of confirmation, and therefore, this part of the lawsuit is dismissed, and this part of the judgment of the court of first instance is dismissed, and the remaining appeal is dismissed, and the costs of the appeal and the total costs of the lawsuit are to be borne by the losing party. It
Justices Yang Chang-soo (Presiding Justice)