(영문) 서울행정법원 2011.9.8. 선고 2011구합20895 판결

1. On May 23, 201, the Defendant’s revocation of the ex officio insured status of each employment insurance against Plaintiff (Appointed) and Appointed B shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On April 1, 2007, the Plaintiff (Appointed Party; hereinafter referred to as the “Plaintiff”) entered into an employment contract with the Seoul Special Metropolitan City and a local contracting officer and renewed the employment contract each year on August 1, 2009. On March 1, 2011, the new contract period was extended from the same date to February 29, 2012, with an average of 20 hours per week working hours as a public official (hereinafter referred to as “instant employment contract”). The Plaintiff (hereinafter referred to as the “Plaintiff”) entered into an employment contract with the Road Traffic Headquarters C of Seoul Special Metropolitan City as a part-time public official (e) in the part-time local contracting officer (e) at the Road Traffic Headquarters C of Seoul Special Metropolitan City (hereinafter referred to as the “Plaintiff, etc.”).

B. On March 21, 201, the Seoul Special Metropolitan City Mayor filed an application with the Defendant for purchase of employment insurance by the Plaintiff, etc. (hereinafter “instant application for purchase”), and around that time, the Plaintiff, etc. acquired the insured status. However, on May 23, 201 of the same year, the Defendant revoked the insured status of the Plaintiff, etc. ex officio on the ground that, in the case of a public official in contractual service, within three months from the date of appointment pursuant to Article 3-2(2) of the Enforcement Decree of the Employment Insurance Act, the Plaintiff, etc. should file an application for purchase of employment insurance within three months from the date of initial appointment (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-3, Gap evidence 4-1 and 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Where a public official in contractual service enters into an employment contract again after the expiration of the existing contract term, his status as a public official under the existing contract becomes extinct upon the expiration of the contract term and acquires his status as a public official in accordance with the newly concluded employment contract. Therefore, even if the plaintiff et al. entered into an employment contract on April 1, 2007 and August 1, 2009, if the plaintiff et al. entered into the first employment contract after the expiration of the contract term, it constitutes "the date of appointment as provided in Article 3-2 (2) of the Enforcement Decree of the Employment Insurance Act after the expiration of the new contract term," and as long as the application for the insurance of this case was filed within three months thereafter, the plaintiff et al. lawfully acquired the employment insurance. Therefore, the defendant's disposition of this case

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) The Employment Insurance Act, which aims to prevent unemployment, promote employment, develop and improve the vocational ability of workers through the enforcement of employment insurance, strengthen the State’s vocational guidance and job placement services, and promote the livelihood stability and job-seeking activities of workers by providing unemployment benefits when they are unemployed, provides that public officials excluded from the application of the State Public Officials Act and the Local Public Officials Act pursuant to Article 10 subparag. 3, as amended by Act No. 8959, Mar. 21, 2008; provided, however, that public officials in extraordinary civil service and contractual service may subscribe to employment insurance at their own will, as prescribed by Presidential Decree. As such, Article 3-2(1) and (2) of the Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree”) amended by Presidential Decree No. 21015, Sept. 18, 2008;

(hereinafter referred to as "public official subject to subscription") is appointed, the head of the administrative agency to which the public official subject to subscription belongs (hereinafter referred to as "affiliated agency") shall, without delay, confirm his/her intention pursuant to the proviso of Article 10 subparagraph 3 of the Employment Insurance Act, and shall apply to the public official subject to subscription to employment insurance with the head of the employment security office having jurisdiction over the location of the affiliated agency within three months from the date of appointment of the public official subject to subscription, but if the public official so wishes, he/she may directly apply for subscription for the same period. In addition, according to Articles 1 and 5 of the Addenda of the Enforcement Decree, the amended provisions of Article 3-2 of the Enforcement Decree shall enter into force from September 22, 2008, and for those who are in extraordinary civil service or contractual service at the time of the enforcement of the Enforcement Decree, the enforcement date of Article 3-2

Meanwhile, Article 2(3)3 of the Local Public Officials Act provides that public officials engaged in duties that require expertise and skills or that require flexibility, etc. in appointment in accordance with their employment contracts with local governments shall be classified as public officials in contractual service by stipulating that public officials engaged in duties that require flexibility, etc. in appointment shall be classified as public officials in special career service. According to Articles 5(1), 6(1), and 7 of the Regulations on Public Officials in Local Contract Service, the head of a local government may appoint public officials in local contract based on their employment contracts within the scope of their quota and budget (Provided, That part-time public officials in contractual service shall be within the scope of budget) within the scope of their budget, but the period of appointment of public officials in local contract service shall be the period necessary for performing the relevant duties within the scope of their year, when the need to maintain contract projects or contract positions ceases to exist, or when public officials

According to the contents and forms of the above provisions of the Local Public Officials Act and the Local Contract Public Officials, a public official in a local contract who is employed under an employment contract with a certain period of time, unlike a public official who takes office or acquires the status of a public official by being elected.

As such, when the period of employment prescribed in the employment contract expires, a local contract officer shall lose his/her status, and in such cases, whether to renew his/her employment contract or extend the period of employment shall be deemed to be entrusted to the discretion of the head of the local government.

Therefore, with respect to a person who is in office as a public official subject to employment insurance at the time of September 22, 2008, which was the enforcement date of Article 3-2 of the Enforcement Decree of the amended Act as of September 18, 2008, as of September 22, 2008, as of September 22, 2008, the appointment period stipulated in the employment contract without the application for subscription of the head of the affiliated agency or the public official subject to employment insurance in the local contract, is terminated within three months thereafter, that person shall lose his status as a public official in the local contract. Therefore, if a new employment contract was concluded at the discretion of the head of the local government thereafter, the date on which the new employment contract was concluded shall be deemed to be the date on which the public official is appointed to the public official subject to employment

(2) In light of the above legal principles, even though the plaintiff et al. entered into an employment contract with the Seoul Special Metropolitan City and a local contract official on April 1, 2007 and August 1, 2009 respectively, since the employment period stipulated in the employment contract has expired and again entered into the instant employment contract after losing the status of a local contract official, the contract date falls under the "date of appointment for a public official eligible for joining" as stipulated in Article 3-2 (2) of the Enforcement Decree, and the application for joining the instant case on March 21, 201, which is within three months thereafter, constitutes the "date of appointment for a public official eligible for joining" as stipulated in Article 3-2 (2) of the Enforcement Decree, and it is reasonable to view that the application for joining the instant case on April 21, 200

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.