Whether a public official in contractual service employed by a local government and a public official in contractual service under an employment contract has an interest in filing a lawsuit to seek nullification of an indication of intention to terminate the employment contract where the contract term expires after having been disadvantaged before the contract term expires (negative)

Even if a public official in contractual service employed by a local government and a public official in contractual service under an employment contract are void when the contract term expires after being disadvantaged before the termination of the contract term, the declaration of intent to terminate the employment contract is void, since there is no ground provision that grants the duty to renew the contract term to the public official in contractual service upon the expiration of the contract term in the Local Public Officials Act or the Local Public Officials in contractual Service Regulations, etc., and thus it is naturally impossible to restore the status of the public official in contractual service and the public official in contractual service, the request for nullification of the declaration of intent to terminate the contract does not pass through the request for confirmation of legal relations in the past. On the other hand, even if the past legal relations affect the current rights or legal status and are recognized as an appropriate means to eliminate the risk or apprehension of the present rights or legal status, the legal relations confirmation lawsuit shall be deemed to have an immediate fixed interest. However, if the employment contract is terminated with respect to the public official in contractual service, the legal interest in the appointment of the person whose employment contract has been terminated before the expiration of the contract term does not affect the legal interest.

Articles 2(3)3 and 3 of the Local Public Officials Act, Article 35 of the Administrative Litigation Act

Supreme Court Decision 91Da1134 delivered on June 25, 1991 (Gong1991, 2003) Supreme Court Decision 93Da5093 delivered on April 23, 1993 (Gong1993Ha, 1538) Supreme Court Decision 92Da40587 delivered on July 27, 1993 (Gong1997Ha, 2132), Supreme Court Decision 94Da401 delivered on April 11, 1995 (Gong195Sang, 1826), Supreme Court Decision 95Nu12347 delivered on December 5, 1995 (Gong196Sang, 265), Supreme Court en banc Decision 90Da190501 delivered on February 27, 1996 (Gong19905Da190805 delivered on May 16, 1996).

[Judgment of the court below]

Gwangju Metropolitan City (Attorney Choi Ho-hoon, Counsel for the defendant-appellant)

Gwangju High Court Decision 2001Nu914 delivered on January 10, 2002

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The litigation costs are assessed against the plaintiff.

We examine the grounds of appeal ex officio prior to judgment.

Even if a local government and a public official in contractual service employed under an employment contract are subject to disadvantage such as termination of an employment contract before the expiration of the contract period and the declaration of intent to terminate the employment contract expires, if the contract period expires, such declaration of intent to terminate the employment contract is null and void, the public official in contractual service is naturally void due to the expiration of the contract period and the public official in contractual service cannot recover the status of the public official. Thus, even if the contract period expires, the claim to confirm the termination intention does not pass through the claim to confirm the legal relationship in the past. On the other hand, even if the past legal relationship affects the current rights or legal status, and it is deemed proper to obtain a judgment to confirm the legal relationship in order to eliminate risks or apprehensions over the current rights or legal status, the legal relationship confirmation lawsuit shall be deemed to have an immediate interest. However, if the employment contract is terminated with a public official, etc., it does not have any legal limitation in appointing the public official, and even if a person whose employment contract has been terminated before the contract period expires has no power to do so, it does not affect the legal interest.

According to the records, the plaintiff is a local public official in contractual service employed to the defendant for a fixed period from March 2, 200 to March 1, 2002, and the defendant seeks confirmation of invalidity of the indication of intent to terminate the employment contract with the plaintiff on the ground that he terminated the employment contract with the plaintiff on June 3, 2000 prior to the expiration of the employment period. However, the above employment period is obvious that it has already been in the final appeal of this case, and therefore, the plaintiff does not have any interest to seek confirmation of invalidity of the indication of intent to terminate the above employment contract.

Therefore, the judgment of the court below is reversed, and this case is sufficient to be tried by the court. As seen above, the judgment of the court of first instance is revoked and the lawsuit of this case is dismissed. The total costs of the lawsuit are assessed against the losing party and are so decided as per Disposition by the assent

Justices Park Jae- Jae (Presiding Justice)