[1] In a case where a disqualified person is appointed as a public official and actually works for him/her, whether a claim for retirement benefits under the Public Officials Pension Act or the Guarantee of Workers' Retirement Benefits Act may be made (negative), and whether such a legal principle applies equally to cases where the act of appointment was revoked due to a defect in appointment, and thus retroactively

[2] Whether the State or a local government is obliged to return unjust enrichment with respect to the de facto work from the appointment of a public official whose appointment is void or cancelled to the retirement (affirmative), and in this case, the amount of profit of the State or a local government and the loss suffered by a disqualified public official, etc. / Whether the amount of unjust enrichment to be returned by the State or a local government exceeds the amount equivalent to retirement benefits under the Public Officials Pension Act, which is the amount of profit of the State or a local government (affirmative)

[1] The retirement benefits under the Public Officials Pension Act or the Guarantee of Workers' Retirement Benefits Act are paid when a person retires while acquiring the status as a lawful public official or performing duties after establishing a labor relationship. If there were grounds for disqualification for appointment as a public official at the time of appointment, the act of appointment shall be deemed null and void per annum even though it was not revealed that the person was disqualified for appointment due to negligence by the State, and the act of appointment shall not be deemed null and void per annum, and even if it was impossible to obtain the status as a public official or establish a labor relationship. Therefore, even if a disqualified person was appointed as a public official and actually serves as a public official, a person who did not obtain a legitimate status as a public official may not claim retirement benefits under the Public Officials Pension Act or the Guarantee of Workers' Retirement Benefits Act. Furthermore, this legal principle applies likewise to cases where not only

[2] The actual work (hereinafter “instant work”) from the appointment to the retirement of a public official (hereinafter “ disqualified public official, etc.”) whose appointment is void or cancelled automatically (hereinafter “qualified public official, etc.”) is provided without any legal cause. The State and local governments received the instant work and received benefits, while disqualified public officials, etc. suffered damages to provide the instant work. Thus, within the scope of damages, the State and local governments have the duty to return the said benefits as unjust enrichment under Article 741 of the Civil Act.

In other words, the State or local governments obtain profits from the exemption of retirement benefits under the Public Officials Pension Act in addition to the monthly salary paid each month in relation to the provision of the instant work by disqualified public officials, etc. to whom the Public Officials Pension Act could have been applied. Of retirement benefits, the amount of contributions voluntarily accumulated by disqualified public officials, etc. from among retirement benefits constitutes the amount of the instant work during the term of appointment, and the amount equivalent to the amount of pure labor out of the remainder other than contributions (the purport of excluding the portion of public officials’ contribution compensation and social security level) is the amount paid as compensation for the instant work according to retirement

Meanwhile, in light of the fact that the retirement allowance system under Article 8 of the Guarantee of Workers' Retirement Benefits Act is the lowest standard for working conditions of retired workers, and has the nature of later-paid wages, which are essentially the remuneration for the provision of labor, the amount that can be evaluated as the remuneration for the instant work, which can be paid upon retirement, can be deemed as the amount equivalent to the retirement allowance under the Guarantee of Workers' Retirement Benefits Act, and therefore, disqualified public officials, etc., who are not eligible for appointment, may be deemed to

In addition, as seen earlier, unjust enrichment is liable to return within the smaller extent of the amount of damages and the amount of profit. As such, where the sum of damages incurred by disqualified public officials, etc. during the employment period, namely, the amount related to contributions under the Public Officials Pension Act corresponding to the amount of damages paid as compensation for the instant work, and the amount equivalent to retirement allowances under the Public Officials Pension Act corresponding to the amount of damages paid as compensation for the instant work exceeds the amount equivalent to the amount of retirement benefits under the Public Officials Pension Act, the amount of unjust enrichment to be returned by the State or a local

[1] Article 46 of the Public Officials Pension Act, Articles 33 and 69 of the State Public Officials Act / [2] Article 741 of the Civil Act, Article 46 of the Public Officials Pension Act, Articles 33 and 69 of the State Public Officials Act, Article 34 of the Labor Standards Act, Article 8(1) of the Guarantee of Workers' Retirement Benefits Act

[1] Supreme Court Decision 86Nu459 delivered on April 14, 1987 (Gong1987, 826) Supreme Court Decision 2001Da61012 Delivered on May 16, 2003 (Gong2003Sang, 1314) / [2] Supreme Court Decision 2004Da10350 Delivered on July 22, 2004 (Gong2007Sang, 614)

Plaintiff

Korea

Gwangju District Court Decision 2011Na17478 Decided May 9, 2012

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. A. The retirement benefits under the Public Officials Pension Act or the Act on the Guarantee of Workers' Retirement Benefits are paid when a person retires after acquiring his/her status as a lawful public official or establishing a labor employment relationship. If there were grounds for disqualification for appointment as a public official at the time of appointment, such appointment shall be deemed null and void as a matter of course, even though it was not revealed that he/she was disqualified due to the negligence of the State, and neither obtain his/her status as a public official nor establish a labor employment relationship. Therefore, even if a disqualified person was appointed as a public official and actually serves as a public official, he/she may not claim retirement benefits under the Public Officials Pension Act or the Act on the Guarantee of Workers' Retirement Benefits (see, e.g., Supreme Court Decisions 86Nu459, Apr. 14, 1987; 2001Da61012, May 16, 2003). Furthermore, this legal principle applies likewise to cases where not only the act of invalidation due to disqualification but also the act of cancellation of appointment as a defect.

B. However, the actual work (hereinafter “instant work”) from the appointment to the retirement of a public official (hereinafter “disqualified public official, etc.”) whose appointment act is void or cancelled automatically is offered from the appointment to the retirement of the public official (hereinafter “disqualified public official, etc.”) is offered without any legal cause. The State and local governments obtained benefits from the instant work, while disqualified public officials, etc. receive damages from the instant work. Thus, the State and local governments are obliged to return the said benefits to the unjust enrichment under Article 741 of the Civil Act within the scope of such damages (see Supreme Court Decision 2004Da10350, Jul. 22, 2004).

In other words, the State or local governments gain profits from the exemption of retirement benefits under the Public Officials Pension Act in addition to the monthly salary paid each month in relation to the provision of the instant work by disqualified public officials, etc. to whom the Public Officials Pension Act could have been applied. Of the retirement benefits, the amount of contributions voluntarily accumulated by disqualified public officials, etc. during the period of employment constitutes the amount of the instant work during the period of employment, and the amount equivalent to the portion paid for pure labor (excluding the portion of public officials’ contribution compensation and the amount paid at the level of social security) out of the remainder other than contributions can be deemed as the amount paid as compensation

Meanwhile, in light of the fact that the retirement allowance system under Article 8 of the Guarantee of Workers' Retirement Benefits Act is the lowest standard for working conditions of retired workers and has the nature of post-paid wages, which are essentially remuneration for the provision of labor (see, e.g., Supreme Court Decision 2004Da8333, Mar. 30, 2007). The amount that can be assessed as remuneration for the instant labor, which can be paid upon retirement, can be at least deemed as the amount equivalent to the retirement allowance under the Guarantee of Workers' Retirement Benefits Act. Thus, disqualified public officials, etc. who are eligible for appointment, may cause considerable damages by providing the instant labor (see Supreme Court Decision 2004Da10350, Jul. 22, 2004).

In addition, as seen earlier, unjust enrichment is liable to return within the smaller extent of the amount of damages and the amount of profit. As such, where the sum of damages incurred by disqualified public officials, etc. during the employment period, namely, the amount related to contributions under the Public Officials Pension Act corresponding to the amount of damages paid as compensation for the instant work, and the amount equivalent to retirement allowances under the Public Officials Pension Act corresponding to the amount of damages paid as compensation for the instant work exceeds the amount equivalent to the amount of retirement benefits under the Public Officials Pension Act, the amount of unjust enrichment to be returned by the State or a local

2. The reasoning of the lower judgment reveals the following facts.

A. On October 10, 1991, the Plaintiff was newly appointed as a technician for technical assistant of the ○○ Regional Veterans Administration. On December 21, 2007, the ○○ Regional Veterans Administration’s self-inspection conducted on December 21, 2007, confirmed that the Plaintiff’s qualification certificate submitted at the time of the above new appointment was forged, the head of ○○ Regional Veterans Administration retroactively revoked the appointment for the Plaintiff on January 11, 2008 on the ground that the Plaintiff was disqualified for special employment requirements.

B. Around the above time, the Plaintiff claimed retirement benefits under the Public Officials Pension Act to the Public Officials Pension Corporation, but the said Corporation rejected the payment on the grounds that the Plaintiff is disqualified for special employment, and on the other hand, returned only the contributions paid by the Plaintiff during the working period and the total amount of interest accrued thereon.

C. If the Plaintiff was duly appointed without any grounds for disqualification for special employment and retired normally on January 11, 2008, retirement benefits under the Public Officials Pension Act to be paid to the Plaintiff are KRW 63,616,800.

D. Meanwhile, the amount equivalent to retirement allowances calculated in accordance with the Guarantee of Workers' Retirement Benefits Act for the period of the Plaintiff’s employment is KRW 48,548,178.

3. As to such factual relations, the lower court determined to the following purport on the grounds stated in its reasoning.

A. Although the Plaintiff cannot claim retirement benefits under the Public Officials Pension Act because the status relationship between the Defendant and the public official was not formed lawfully, the Defendant is obligated to return the amount equivalent to the monetary value of the labor provided by the Plaintiff as unjust enrichment.

B. The monetary value of labor provided by the Plaintiff includes the portion paid as compensation for labor among retirement benefits under the Public Officials Pension Act. At least the amount equivalent to retirement benefits under the Guarantee of Workers' Retirement Benefits Act should be paid as compensation for labor provided by the Plaintiff.

C. Meanwhile, in a case where the Plaintiff did not have any grounds for disqualification for special employment, KRW 29,167,229 already returned as contributions, etc. under the Public Officials Pension Act would be KRW 34,449,571 if the Plaintiff deducteds KRW 63,616,80, which was paid as retirement benefits under the Public Officials Pension Act. If the Plaintiff paid an additional amount of KRW 48,548,178, which was calculated in accordance with the Guarantee of Workers' Retirement Benefits Act, the amount of retirement benefits under the Public Officials Pension Act exceeds the amount of retirement benefits under the aforesaid Public Officials Pension Act. Accordingly, the

4. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination can be deemed as based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding retirement allowance system under the Labor Standards Act and the Guarantee of Workers’ Retirement Benefits Act, and the scope of unjust enrichment to be returned to disqualified public officials, etc.

The Supreme Court precedents cited in the grounds of appeal are different from the instant case, and thus, are inappropriate to be invoked in the instant case.

5. 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 Kim So-young (Presiding Justice)