[1] The meaning of “discrimination against male and female” under Article 11(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act and Article 6 of the Labor Standards Act, and the validity of the provision which provides that an employer or employer shall unfairly discriminate against female workers on the grounds of gender without reasonable grounds (negative)

[2] Whether Article 11(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act and Article 6 of the Labor Standards Act, which provide for gender equality in the employment relationship between a State agency and a public official, apply to the employment relationship (affirmative in principle)

[3] Method of determining whether setting the retirement age in the field where female workers account for all or a majority of the total number of female workers lower than that in other fields constitutes unreasonable discrimination against female workers

[4] Whether a “administrative rule” which provides for detailed procedures for handling affairs or standards for statutory interpretation and application to a subordinate administrative agency or a subordinate administrative agency has the effect of externally binding the citizens or the court (negative in principle), and in the case of an administrative rule concerning matters at the discretion of an administrative agency, whether the court ought to respect it (affirmative in principle)

[1] The term “discrimination against male and female” under Article 11(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act (hereinafter “Equal Employment Opportunity Act”) and Article 6 of the Labor Standards Act refers to the act of unfairly discriminating against male and female on the ground that they are male and female without reasonable grounds. The provision that an employer or employer provides that workers shall be unfairly discriminated against on the grounds of gender without reasonable grounds shall be deemed as being in violation of Article 11(1) of the Equal Employment Opportunity Act, which is a mandatory provision, and Article 6 of the Labor Standards Act, regardless of the form of the provision, and thus,

[2] Considering that a part of the State, a state agency, or a state organization has the responsibility and duty to protect and realize the fundamental rights of the people as a criminal of fundamental rights, and that a public official is an employee under the Labor Standards Act that provides labor for the purpose of wage, barring special provisions in the relevant laws regarding public officials, Article 11(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act that provide gender equality in the employment relationship and Article 6 of the Labor Standards Act also apply to the public service relationship between a state agency and

[3] Whether setting the retirement age of female workers at lower level than that of other fields constitutes unreasonable discrimination against female workers ought to be determined by comprehensively taking account of various circumstances, such as the content of work in the pertinent field, the ability to prepare for them, working hours, whether special service regulations are required in the pertinent field, and the supply and demand situation, in mind of the constitutional value of “Prohibition of Unfair Discrimination against Women’s Labor” as stipulated in Article 11(1) of the Constitution, other than the principle of equality as stipulated in Article 32(4) of the Constitution.

[4] The “administrative rules” which a superior administrative agency establishes detailed procedures for handling affairs or standards for the interpretation and application of statutes to public officials under its jurisdiction or subordinate administrative agencies are effective only within the administrative organization, unless otherwise specifically delegated by superior statutes, and have no external binding effect on citizens or courts. However, in cases where administrative rules relate to matters falling under the discretion of the administrative agency that prescribed the administrative rules, it is desirable for the court to respect them unless there are special circumstances such as lack of objective rationality.

However, if the contents of administrative rules are contrary to superior laws and regulations, they are null and void in accordance with the unity of legal order and the principle of prohibition of inconsistency derived from the principle of a constitutional state, and they cannot be recognized as administrative internal effects. In such a case, the court shall treat the pertinent administrative rules as nonexistent in the legal order and determine the legitimacy of the measures taken by the administrative agency in accordance with superior laws and legislative purposes.

[1] Article 11(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act, Article 6 of the Labor Standards Act / [2] Article 11(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act, Article 6 of the Labor Standards Act / [3] Articles 11(1) and 32(4) of the Constitution / [4] Article 95 of the Constitution of the Republic of Korea

[1] Supreme Court Decision 92Nu15765 Decided April 9, 1993 (Gong1993Sang, 1406), Supreme Court Decision 2006Du3476 Decided July 28, 2006 / [2] Supreme Court en banc Decision 93Hun-Ma120 Decided November 8, 2002 (Hun-Ba8, 670) Decided December 29, 1994 / [3] Supreme Court Decision 85Hun-Ba657 Decided December 27, 198 (Gong1989, 217) / [4] Supreme Court Decision 2017Du4319 (Gong2019; Constitutional Court Decision 2019Du48179 Decided January 10, 2019; Constitutional Court Decision 2007Hun-Ba819 Decided July 19, 2017

Plaintiff 1 and one other (Attorney Yoon Young-young et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Lee Jae-type et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu34206 decided August 23, 2013

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

The grounds of appeal are examined.

1. Case summary and key issue

A. According to the reasoning of the lower judgment, the following facts are revealed.

1) On August 21, 1986, Plaintiff 1, Plaintiff 2, and Plaintiff 2, September 22, 1986, to the National Intelligence Service as a state public official of Grade 10 in technical skills and performed the duties of “administrative assistance occupational group” and “personnel work class” in charge of editing publications.

2) Since then, the “computer-type job series” was newly established in the administrative assistance occupational group, and the Plaintiffs were in charge of editing publications under the control of the computerized-type job series from December 31, 1993.

3) On March 31, 199, the Enforcement Decree of the National Intelligence Service Employee Act [Attachment 2] was amended, and six series of work categories were abolished in the functional categories (hereinafter “displacement of the instant series of work”). Accordingly, the Plaintiffs were dismissed on April 30, 199, and were re-appointed as contractual workers (pre-contract workers) and performed the same duties in the field of computerized recognition in the field of support for information affairs.

4) While the Plaintiffs were mainly and continuously serving on a one-year basis, they reached the age of 43, which is the upper age limit for computerized typesetting duties stipulated in the National Intelligence Service Contract Employee Regulations, on December 10, 2008, and March 29, 2008. However, in accordance with Article 2 of the Addenda (v. 1, 1999) of the above provision, the Plaintiffs were discharged from office on December 31, 2010 and June 30, 2010, respectively.

5) At the time of retirement, the Plaintiffs belonged to public officials in contractual service (the contractual employees under Article 2-3 of the Enforcement Decree of the National Intelligence Service Employee Act) from among public officials in contractual service.

B. Of the issues of the instant case, the issue is whether the National Intelligence Service’s internal regulations, which served as the basis for the measures that allowed the Plaintiffs to work and retired from the office by the age of 45 in the field of computer type work, violated Article 11(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act (hereinafter “Equal Employment Opportunity Act”) and thus invalid.

2. Relevant statutes and legal principles

A. Legal principles as to the Equal Employment Opportunity Act

1) Article 11(1) of the Constitution provides, “All citizens shall be equal in front of the law, and no person shall be discriminated against in any political, economic, social, or cultural life on account of gender, religion, or social status.” The principle of equality is the highest principle of the Constitution concerning the guarantee of fundamental rights of citizens, and at the same time, the State is required to enact, interpret, and enforce the law, and at the same time, the State is not given equal treatment without reasonable grounds, and is a citizen’s right to demand equal treatment (see, e.g., Constitutional Court en banc Decision 2004Hun-Ba53, Sept. 29, 2005). Furthermore, Article 32(4) of the Constitution provides, “The work of women shall be subject to special protection, and shall not be discriminated against in terms of employment, wages, and working conditions.”

The Equal Employment Opportunity Act was enacted on December 4, 1987 by Act No. 3989 on April 1, 1988 in order to realize the equal employment between men and women, according to the spirit of the Constitution that the employment relationship should promote substantial gender equality.

2) Article 2 subparag. 1 of the Equal Employment Opportunity Act defines “discrimination” to mean that an employer discriminates against an employee in employment or working conditions, or takes any other unfavorable measures without any justifiable reason, for reasons such as gender, marriage, status within family, pregnancy or childbirth (including where, even if the employer equally applies employment or working conditions, the number of men or women capable of satisfying such conditions is remarkably fewer in comparison with the other gender, and thus resulting in disadvantageous consequences to a specific gender, and the said conditions cannot be attested to be justifiable) (main sentence of Article 2 subparag. 1), and provides that “the employer shall not discriminate on grounds of gender in retirement age, retirement, and dismissal of the employee” (Article 11(1)), and the burden of proof in dispute resolution related to this Act is borne by the employer (Article 30).

In addition, the Labor Standards Act provides that "an employer shall not discriminate against workers on the grounds of gender (sex) and shall not discriminate against workers on the grounds of nationality, religion, or social status." (Article 6).

3) The term “discrimination” in this context refers to the act of unfairly discriminating against a female on the ground that the female is a male or female without a reasonable ground (see Supreme Court Decision 2006Du3476, Jul. 28, 2006, etc.). The provision that an employer or an employer provides that an employee shall unfairly discriminate against a female on the ground of gender without a reasonable ground is in violation of Article 11(1) of the Equal Employment Opportunity Act, which is a mandatory provision regardless of the form of the provision, and Article 6 of the Labor Standards Act, which shall be deemed null and void (see Supreme Court Decision 92Nu15765, Apr. 9, 193, etc.).

4) In light of the fact that a part of the State, a State agency, or a State organization, as a criminal of fundamental rights, has the responsibility and duty to protect and realize the fundamental rights of the people (see, e.g., Constitutional Court en banc Order 93Hun-Ma120, Dec. 29, 1994); and that a public official is an employee under the Labor Standards Act that provides labor for the purpose of wage (see, e.g., Supreme Court Decision 2001Du3051, Nov. 8, 2002), barring any special provision in a public official-related law, Article 11(1) of the Equal Employment Opportunity Act and Article 6 of the Labor Standards Act that provide gender equality in an employment relationship between a State agency and a public official should also

5) In addition, whether setting the retirement age in the field of female workers’ whole or majority at lower age than that in other fields constitutes unreasonable discrimination against female workers ought to be determined by comprehensively taking account of various circumstances, such as the content of work, the ability of workers in the relevant field, working hours, whether special service regulations are required in the relevant field, and the supply and demand of human resources, in mind of the constitutional value of “Prohibition of Unfair Discrimination against Women’s Labor” as provided by Article 11(1) of the Constitution, other than the principle of equality as provided by Article 11(1) of the Constitution (see Supreme Court Decision 85Meu657, Dec. 27, 198).

B. Provisions pertaining to the National Intelligence Service Contract Staff

1) The former State Public Officials Act (amended by Act No. 10699, May 23, 201) defines public officials in contractual service among public officials in non-career service as “public officials engaged in the affairs that require expertise and technology or require flexibility, etc. in appointment under a employment contract with the State” (Article 2(3)3), and stipulates that the employment conditions, appointment procedures, and working age of public officials in contractual service, etc., and other necessary matters shall be prescribed by the National Assembly Regulations, Supreme Court Regulations, Constitutional Court Regulations, Constitutional Court Regulations, National Election Commission Regulations, or Presidential Decree (Article 2(4)).

According to delegation, the former Regulations on Contract Public Officials (amended by Presidential Decree No. 22930, May 23, 201) provides that the employment period of contract public officials shall be the period necessary for the performance of the relevant project within the extent of five years (Article 6(1)); the head of each agency shall extend the employment period without taking a public announcement procedure within the extent of not exceeding five years, where the relevant project is continued or the project is not terminated due to unavoidable reasons; where there are special reasons for the performance of public officials in contractual service to be excellent or continuous in the employment period; however, Article 6(2) and (3) provides that the employment period may be extended without taking a public announcement procedure within the scope of not exceeding five years (Article 6(1)); however, there is no provision on the upper limit

2) The former National Intelligence Service Employee Act (amended by Act No. 11103, Nov. 22, 2011) (amended by Act No. 11103, Nov. 22, 201) may employ contractual workers, if necessary, taking into account the content, special nature, etc. of the duties of the National Intelligence Service (Article 3(1)), and contractual workers shall be deemed public officials in contractual service among public officials in non-career service under the State Public Officials Act, and the employment conditions, procedure, and other necessary matters shall be

According to delegation, the former Enforcement Decree of the National Intelligence Service Employee Act (amended by Presidential Decree No. 23885, Jun. 27, 2012) provides for the field of information service support, such as visa and information input, as one of the fields of service that can be employed as contract-based employees (Article 2-3(1)2); contract-based employees shall be employed by the head of the NIS; the method of employment and the standard of qualification for employment shall be determined by the head of the NIS (Article 2-3(2)); except as otherwise expressly provided for in this Decree, contract-based public officials regulations (excluding Articles 3, 5, the proviso to Article 6(2) and Article 9(2)); and State public officials service regulations (Article 2-3(4)); and detailed matters necessary for the enforcement of this Decree shall be determined by the head of the NIS (Article 45).

C. Legal principles related to the effects of administrative rules

1) “Administrative rules” which provide for detailed procedures for handling affairs or standards for interpretation and application of Acts and subordinate statutes to public officials under its jurisdiction or subordinate administrative agencies are effective only within an administrative organization unless specific delegation of superior Acts and subordinate statutes is made (see, e.g., Supreme Court Decision 2017Du38874, Jul. 11, 2019; Constitutional Court en banc Decision 99Hun-Ba91, Oct. 28, 2004). However, in cases where administrative rules relate to matters falling under the discretion of an administrative agency under its jurisdiction, it is desirable to respect the court, barring special circumstances, such as the lack of objective rationality (see Supreme Court Decision 2017Du4319, Jan. 10, 2019).

2) However, if the contents of administrative rules are contrary to superior laws and subordinate statutes, they are null and void in accordance with the unity of and anti-discrimination in the legal order derived from the principle of a constitutional state, and they cannot be recognized as administrative internal effects. In such a case, the court shall treat the pertinent administrative rules as nonexistent in the legal order and determine the legitimacy of the measures taken by the administrative agency in accordance with superior laws and legislative purposes.

3. Determination as to the instant case

A. Review of the reasoning of the lower judgment and the evidence and records duly admitted by the lower court reveals the following circumstances.

1) The abolition of the instant series of class was performed at the time of economic crisis in which the International Monetary Fund (IMF) must obtain relief and financing from the International Monetary Fund. In the case of the National Intelligence Service, some of the series of class of class of class of class of class of class of class of class of class of class of class of class of class of class of class of class of class of class was determined to reduce the prescribed number, consolidate some series of class of class of class, and abolish six series of class of class (computer type of computer type, entry work

2) 이 사건 직렬 폐지 이후 1999. 5. 1.부터 원고들은 전임계약직 직원으로 다시 채용되어, 같은 날부터 개정·시행된 ‘국가정보원 계약직직원규정’의 적용을 받았다. 위 규정 제3조는 계약직직원을 복무형태에 따라 전임계약직 직원과 비전임계약직 직원으로 구분하면서, 전임계약직 직원은 상근하면서 직무를 수행하는 직원이라고 정의하고, 제20조는 전임계약직 직원의 근무상한연령을 “1. 안전: 만 30세, 2. 상담, 전산사식, 입력작업, 안내: 만 43세, 3. 의료기사, 간호사, 영양사, 영선, 원예: 만 57세, 4. 의사: 만 65세, 5. 기타 분야: 만 60세”로 정하며, 그 부칙(1999. 5. 1.) 제2조는 1999. 5. 1.부로 기능직에서 계약직으로 신분이 변경되는 직원 등의 근무상한연령 등에 관한 사항은 국가정보원장이 정하는 별도의 지침에 따른다고 정하였다. 이에 따라 국가정보원장이 1999. 4. 23. 제정한 ‘국가정보원직원법 시행령 등 개정 관련 후속처리지침’은 계약직으로 신규채용된 직원 중 전산사식, 입력작업, 전화교환, 안내 분야의 근무자는 위 규정 제20조 제2호의 규정에도 불구하고 만 45세까지 계약기간을 연장할 수 있다고 정하였다(이하 위 규정 및 후속처리지침에서 전산사식 분야의 근무상한연령을 만 43세로 정하거나 또는 만 45세로 연장할 수 있도록 정한 부분을 통틀어 ‘이 사건 연령 규정’이라고 한다).

3) Regarding the fact-finding in the Seoul Central District Court 2010Kadan372729 case against the Defendant for which the Plaintiffs claimed payment of unpaid wages as an employee of the NIS, the Director of the NIS respondeded that the employees of the four series of work, such as computer type, input work, telephone exchange, guidance, etc., were all women, and all employees of the two series of work, such as field ships and honor, were men.

4) On April 28, 1999, the National Intelligence Service, while publicly announcing the employment of computerized data processing workers (which seems to be the field of computer type work and input work), granted eligibility only to the "highly female". On October 200, National Intelligence Service granted qualification only to the "a woman with a high or higher academic background" when publicly announcing the employment of computer type employees. From 1986 to 2010, the Plaintiffs stated that they were all women.

B. We examine these circumstances in light of the relevant statutes and legal principles as seen earlier.

1) The former State Public Officials Act, the former National Intelligence Service Employee Act, or its subordinate statutes at the time when the Plaintiffs were in office and retired, did not have any provision to restrict the upper age limit for contract public officials by field or to allow the head of the NIS to restrict them. Article 45 of the former Enforcement Decree of the National Intelligence Service Employee Act providing that “The head of the NIS shall determine detailed matters necessary for the implementation of this Decree” does not specifically delegate the authority of the head of the NIS to establish external binding norms concerning the upper age limit for each field of contract public officials. Accordingly, the instant age provision is determined by the head of the NIS without specific delegation of superior statutes, and thus

2) On March 31, 199, at the time of the abolishment of the instant work series, the computerized-type job series, which the Plaintiffs belonged to, was practically a female-only job series, and the Young- Line and the honorable job series were practically a male-only job series. Article 20 of the National Intelligence Service Contract Employee Regulations amended and implemented after the abolishment of the instant work series, set the upper age limit for the computerized-type job series at 14 years compared to the upper age limit for the field of service and art, and the head of the NIS set the lower age limit for the field of computerized type work at 12 years or lower even considering the follow-up guidelines of the head of the

3) Pursuant to Article 30 of the Equal Employment Opportunity that provides for the burden of proof by an employer, the head of the NIS bears the burden of proving whether there are reasonable grounds for determining the upper age limit for computer typesetting in the field of computerized typesetting, which is practically operated as a job exclusively for women, lower than the upper age limit for other fields, which have actually been operated as a job exclusively for men, and if not, the instant age provision, which is a mandatory provision, is in violation of Article 11(1) of the Equal Employment Opportunity Act and Article 6 of the Labor Standards Act

4) The former Enforcement Decree of the National Security Planning and Staff Act [Attachment 2] of the former Enforcement Decree prior to the abolishment of the instant work series by the amendment of Presidential Decree No. 16211, Mar. 31, 1999 provided that the retirement age for the job series, such as computerized typesetting, input work, and guidance, is 43 years of age. However, if the enactment of the former Enforcement Decree does not prove any reasonable ground to set the retirement age lower as such by discriminatings against the computerized typesetting job series, the retirement age for the computerized typesetting job series in the former Enforcement Decree shall be deemed null and void in violation of the superior law. The history that there was the same provision that discriminates against the computerized typesetting in the former Enforcement Decree, and there is no sufficient ground that the instant age provision applied to the Plaintiffs does not constitute unfair discrimination against women without reasonable grounds.

5) After the abolition of the instant job series, National Intelligence Service appears to have granted eligibility for application to a person who has obtained a relevant certificate while publishing the recruitment of contractual staff in the field of the field of the field of the field of the field of the field of the field of the field of the field of the military service. However, according to the “the fixed number management scheme for contractual staff” drafted after the abolition of the instant job series, the head of the NIS classified the fields of computer typesetting, entry work, telephone exchange, guidance, field of the field of the class of the military service, and the field of the class of the class of the military service as a contractual position in the field of the simple technical field of the field of the field of the field of the field of the class of the military service. Therefore, whether a person has a qualification in the field

C. Therefore, the lower court should have deliberated and determined specifically whether there exist reasonable grounds for setting the upper age limit for computer typesetting in the field of work exclusively for women, which was actually operated by women, lower than the upper age limit for other fields of work exclusively for men. Nevertheless, the lower court determined that the head of the NIS’s retirement measures was lawful, on the premise that the instant age provision may determine whether the instant age provision was in violation of Article 11(1) of the Equal Employment Opportunity Act, without entirely examining and determining whether it violates Article 11(1) of the Equal Employment Opportunity Act, and on the premise that the instant age provision may be determined at the time of re-contract or after the expiration of the contract period, on the grounds that the head of the NIS’s retirement measures were lawful.

The judgment below erred by misapprehending the legal principles on the validity of administrative rules in violation of superior statutes and the Equal Employment Opportunity Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Conclusion

Therefore, without further proceeding to decide on 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.

Justices Noh Jeong-hee (Presiding Justice)