[1] The meaning of "public official on duty" under Article 3 (9) of the former Act on Special Support for Persons, etc. of Distinguished Service to the State

[2] Whether Article 2 (1) 1 of the former Public Officials Pension Act and Article 2 (5) of the Addenda of the same Act (amended by December 28, 1979) of the same Act provide for the grounds for deeming the miscellaneous staff as a state public official or local public official (negative)

[1] In light of the legal principles that the Act applies only to the facts that occurred thereafter from the time when the Act becomes effective, and the former Act on the Special Support of Persons of Distinguished Service to the State, the former Act on the Honorable Treatment of Persons of Distinguished Service to the State, the Act on the Honorable Treatment of Persons of Distinguished Service to the State, the purpose of the Act on the Honorable Treatment of Persons of Distinguished Service to the State, and the definition provisions and the transitional provisions of the former Act on the Special Support of Persons of Distinguished Service to the State, etc., a public official on official on official duty

[2] 구 국가유공자등특별원호법시행령(1976. 1. 10. 대통령령 제7948호로 개정되기 전의 것) 제2조 제1항 제6호는 공상공무원에 대하여 '공무원연금법의 적용을 받는 국가공무원 및 지방공무원으로서 공무수행중 군사원호보상법 제5조 제2항의 규정에 의한 1급 내지 3급에 해당하는 상이를 입은 자'라고 규정하고 있고, 1979. 12. 28. 법률 제3221호로 개정되어 1980. 1. 1.부터 시행된 구 공무원연금법 제2조 제1항 제1호는 "공무원이라 함은 상시 공무에 종사하는 다음 각 목의 자를 말한다. (가) 국가공무원법 및 지방공무원법에 의한 별정직과 일반공무원. 다만, 군인과 선거에 의하여 취임하는 공무원은 제외한다. (나) 국가공무원법 및 지방공무원법에 의한 잡급직원과 전문직원. (다) 대통령령으로 정하는 임시직원."이라고 규정하여, 공무원연금법의 적용대상자를 국가공무원법 및 지방공무원법에 의한 국가공무원 또는 지방공무원이 아닌 소정의 잡급직원·전문직원과 임시직원에까지 확장하였으나, 공무원연금법의 규정형식에 비추어 보더라도 위 규정만으로 위와 같은 잡급직원이 국가공무원 또는 지방공무원인 지위를 취득하게 되는 것은 아니라고 할 것이며, 위 공무원연금법 부칙 제5항의 규정은 1980. 7. 1. 현재 재직하고 있는 잡급직원으로서 재직기간의 통산을 신청하고 소정의 소급기여금을 따로 납부하는 때에는 공무원연금법상의 급여계산에 있어서 그 기간을 재직기간에 통산한다는 규정에 불과할 뿐이므로, 잡급직원을 지방공무원이라고 볼 근거가 되지 아니한다.

[1] Article 2(1)7 of the former Act on the Special Support of Persons, etc. of Distinguished Services to the State (amended by Act No. 3224 of Dec. 28, 1979) and Article 3(9) of the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State (see current Article 4(1)12 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State), Article 4 subparag. 12 of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State (amended by Act No. 4072 of Dec. 31, 1988), Article 4 of the Addenda (see current Article 4(1)12 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State), Article 2(1)7 of the former Act on the Special Support of Persons, etc. of Distinguished Services to the State (amended by Act No. 3224 of Dec. 28, 1979)

Plaintiff

The head of Gwangju Regional Veterans Administration

Gwangju High Court Decision 97Gu1418 delivered on August 29, 1997

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

The Act on the Special Support for Persons of Distinguished Service to the State and the Act on the Special Support for Persons of Distinguished Service to the State on December 24, 1974 (hereinafter referred to as the "Act on the Special Support for Persons of Distinguished Service to the State") was amended by changing their names into the Act on the Special Support for Persons of Distinguished Service to the State (hereinafter referred to as the "Act on the Special Support for Persons of Distinguished Service to the State"), and Article 2 (1) of the Act on the Protection of Persons of Distinguished Service to the State was newly established. Article 3 (9) of the Act on the Protection of Persons of Distinguished Service to the State and local public officials who were injured in the line of duty (hereinafter referred to as the "public officials on official duty"), and Article 5 (2) of the Act on the Protection of Persons of Distinguished Service to the State and persons who were killed or wounded in the line of duty (hereinafter referred to as the "Act on the Protection of Persons of Distinguished Service to the State"). Article 3 (9) of the Act on the Protection of Persons of Distinguished Service.

After that, the original Act has been amended by Act No. 2960 on December 31, 1976, and the Committee for Deliberation on Public Officials who died on Duty or on Duty changed to the Public Official Pension Benefit Council under Article 5 of the Public Officials Pension Act. The definition of public officials who died on duty was revised by Act No. 3590 on December 28, 1982, and the term "public officials who died on duty" in Article 3 (9) of the above Act was amended by Act No. 3590 on December 28, 1982, and the term "public officials who died on duty" in this Act was amended by Act No. 3 (8) of the Public Officials Pension Act, and the term "the public officials who died on duty" was confirmed to have been wounded on duty (including diseases; hereinafter the same shall apply) by the Ordinance of the Ministry of Government Administration.

On the other hand, the Honorable Treatment Act provides that public officials under Article 2 of the State Public Officials Act and Article 2 of the Local Public Officials Act (excluding soldiers and police officers) and employees prescribed by the Presidential Decree ordinarily engaged in official duties in the State or local governments (including diseases in official duties), who were judged to have suffered physical disability falling within that degree of injury as determined by the Presidential Decree, in a physical examination conducted by the Minister, and Article 4 subparagraph 12 of the Honorable Treatment Act provides that persons subject to the Honorable Treatment Act shall be registered in accordance with the former Special Support Act of Persons of Distinguished Services to the State at the time this Act enters into force, while Article 4 of the Addenda provides that "the former Special Support Act of Persons of Distinguished Services to the State, etc. of Distinguished Services to the State shall be registered in accordance with the provisions of Article 6, and the Minister shall adjust the registration relations of persons of distinguished Services to the State without delay when persons of distinguished Services to the State have been classified into the relevant persons of distinguished Services to the State pursuant to the provisions of Article 3 (1) of the Addenda to the Honorable Treatment Act.

However, in light of the legal principles that the law, in principle, only applies to the facts that occurred thereafter from the time when the law became effective, and the definitions of public officials who died in the line of duty prescribed in the process of transformation through the Honorable Treatment Act to the Support Act, as seen above, and the contents of the definition of public officials who died in the line of duty under Article 3 (9) of the above Assistance Act, the public officials who died in the line of duty shall be state public officials or local public officials under the relevant Acts and subordinate statutes at the time when the above Act was applied and implemented, and those public officials

그리고 원고와 같은 잡급직원은, 위와 같이 상이를 입을 당시의 지방공무원법상 지방공무원이 아님은 원심이 적절히 설시한 바와 같으며, 한편, 원호법시행령(1974. 12. 31. 대통령령 제7495호로 개정된 것) 제2조 제1항 제6호는 공상공무원에 대하여 '공무원연금법의 적용을 받는 국가공무원 및 지방공무원으로서 공무수행중 군사원호보상법 제5조 제2항의 규정에 의한 1급 내지 3급에 해당하는 상이를 입은 자'라고 규정하고 있고, 1979. 12. 28. 법률 제3221호로 개정되어 1980. 1. 1.부터 시행된 공무원연금법 제2조 제1항 제1호는 "공무원이라 함은 상시 공무에 종사하는 다음 각 목의 자를 말한다. (가) 국가공무원법 및 지방공무원법에 의한 별정직과 일반공무원. 다만, 군인과 선거에 의하여 취임하는 공무원은 제외한다. (나) 국가공무원법 및 지방공무원법에 의한 잡급직원과 전문직원. (다) 대통령령으로 정하는 임시직원."이라고 규정하여, 공무원연금법의 적용대상자를 국가공무원법 및 지방공무원법에 의한 국가공무원 또는 지방공무원이 아닌 소정의 잡급직원·전문직원과 임시직원에까지 확장하였으나, 공무원연금법의 규정형식에 비추어 보더라도 위 규정만으로 위와 같은 잡급직원이 국가공무원 또는 지방공무원인 지위를 취득하게 되는 것은 아니라고 할 것이며, 위 공무원연금법 부칙 ⑤의 규정은 1980. 7. 1. 현재 재직하고 있는 잡급직원으로서 재직기간의 통산을 신청하고 소정의 소급기여금을 따로 납부하는 때에는 공무원연금법상의 급여계산에 있어서 그 기간을 재직기간에 통산한다는 규정에 불과할 뿐이므로, 잡급직원을 지방공무원이라고 볼 근거가 되지 아니한다 .

Nevertheless, the court below determined that the plaintiff was a public official under Article 3 (9) of the Assistance Act as a public official on December 31, 1980 on the ground of its stated reasoning that the court below erred by misapprehending the legal principles and thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Shin Sung-sung (Presiding Justice)