(영문) 서울행정법원 2019.10.17. 선고 2019구합62765 판결

It is confirmed that the Defendant’s failure to implement the continuous service promotion procedure against the Plaintiff on November 27, 2015 is illegal.

2. Preliminary claim;

The appointment for continuous service promotion made on January 31, 2017 by the defendant against the plaintiff on April 16, 2019 shall be revoked.

Reasons

1. Details of the disposition;

A. From May 1, 2006 to October 9, 2008, the Plaintiff served as a protection officer in the Ministry of Foreign Affairs and Trade (Grade 10). On August 18, 2011, the Plaintiff was newly appointed as a protection officer (class 10) to the Ministry of Public Administration and Security, and currently served as a protection officer (class 8 general service) in the Ministry of Public Administration and Security’s Seoul Government Government Government Complex Management Office (Class 8 general service).

A person shall be appointed.

B. The Defendant appointed a continuous service promotion as of November 27, 2015 upon the occurrence of two vacancies in the Security Secretariat (Grade VIII). At the time of the examination for continuous service promotion, the Defendant deemed that the Plaintiff did not meet the requirements for continuous service promotion under Article 35-4(1)3 of the former Decree on the Appointment of Public Officials (wholly amended by Presidential Decree No. 27822 on January 1, 31, 2017; hereinafter the same shall apply) and excluded the Plaintiff from the subject of examination for continuous service.

C. As of February 22, 2017, the Defendant issued a disposition to appoint the Plaintiff as a protection clerk (class VIII in general service) for continuous service.

D. In calculating the Plaintiff’s continuous service period, the Plaintiff filed a petition with the appeals review committee for revocation of the appointment of the Defendant on February 22, 2017, on the ground that the Plaintiff’s continuous service period had to include the Plaintiff’s work experience as a protection officer (class 10) in the Ministry of Foreign Affairs and Trade from May 1, 2006 to October 9, 2008 (hereinafter referred to as “the long-term service period”), but the Plaintiff failed to perform the procedure of promotion on February 18, 2015 (hereinafter referred to as “the Defendant’s continuous service period”) on the ground that the appointment of the Defendant was erroneous and omitted. Accordingly, the appeals review committee rendered a disposition on February 28, 2019 that changed the Plaintiff’s continuous service period to the Plaintiff on February 16, 2017 (hereinafter referred to as “the Plaintiff’s continuous service period to the Plaintiff on February 16, 2017”).

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 3, purport of whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Although the defendant should add the plaintiff's continuous service period to the plaintiff's continuous service period, the defendant omitted it by mistake. Accordingly, the plaintiff should be promoted for continuous service period as of November 27, 2015, but the plaintiff was appointed for continuous service period as of January 31, 2017 under the disposition of this case. Therefore, the disposition of this case where the defendant did not implement the procedure for continuous service promotion as of November 27, 2015, but the appointment for continuous service period as of January 31, 2017 is illegal, and the plaintiff seeks confirmation of illegality of omission against the defendant, failing to implement the procedure for continuous service promotion as of November 27, 2015, and seek revocation of the disposition of this case in preliminary order.

B. Defendant’s assertion

Article 11(1)4 of the Special Cases Concerning the Appointment, etc. of Public Officials and Article 35-4(2) of the former Decree on the Appointment of Public Officials shall be included in the period of continuous service (the period of service in class 9). Nevertheless, in calculating the period of continuous service of the plaintiff by negligence, the defendant omitted the period of service of the plaintiff in calculating the period of continuous service of the plaintiff, and thereby, the plaintiff is excluded from the period of continuous service examination on November 2015 and 27.

However, in order to be promoted for continuous service, the appointment for continuous service should not be subject to the grounds for restrictions on promotion under Article 32 of the former Decree on Appointment, and ② the order of promotion under the promotional list shall be included in the multiple of promotion pursuant to Article 33(1) [Attachment 5] and undergo an ordinary promotion screening by an ordinary promotion screening committee. Even if the term of office is included in the period of continuous service, the Plaintiff’s order based on the promotional list is not included in the multiple of promotion by January 31, 2017, as well as in the case of grounds for restrictions on promotion by being subject to disciplinary action on July 11, 2016, and cannot be appointed for continuous service. Accordingly, the Defendant did not implement the procedure for continuous service for the Plaintiff on November 27, 2015, and the instant disposition for continuous service as of January 31, 2017 is all legitimate.

3. Relevant statutes;

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

4. Determination as to the legitimacy of the main claim part of the lawsuit of this case

ex officio, we examine the legitimacy of the main claim of this case.

A lawsuit for confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is a system aimed at removing a passive state of omission or non-compliance with an administrative agency's response promptly by ascertaining that the omission is illegal if an administrative agency fails to comply with a legal obligation to respond to an application based on a party's legal or sound right within a reasonable period despite the existence of a legal response obligation to respond, and thus, if the administrative agency fails to comply with such legal response, the lawsuit is filed only by a person who has filed an application for a disposition and has a legal interest in seeking confirmation that the omission is illegal. Thus, if a party fails to have a legal or sound right to request an administrative agency to take any administrative disposition, or there is no legal interest in seeking confirmation of illegality of omission, the lawsuit for confirmation of illegality of omission shall be deemed unlawful because it cannot be deemed that there is an illegal omission subject to an appeal litigation, or there is no standing to sue (see, e.g., Supreme Court Decision 9Du1455, Feb. 25, 200).

In this case, there is no provision that a public official may apply for the appointment of continuous service promotion to the appointment authority under the relevant statutes, such as the former Decree on Appointment of Public Officials, which provides for the appointment of a public official in career service (hereinafter referred to as "public official"). In addition, in the case of continuous service promotion, as in general promotion, it does not fall under the grounds for restrictions on promotion (Article 32 of the former Decree on Appointment of Public Officials) and should be included within a multiple number of promotion promotion (Article 33 of the former Decree on Appointment of Public Officials) and Article 34-3 of the former Decree on Appointment of Public Officials (see, e.g., Supreme Court Decision 95Da29393, Feb. 23, 1996). In light of the above, a public official has no right to request the appointment authority to request the implementation of the procedure for continuous service, such as the appointment or the appointment of a public official who is already determined to be subject to promotion and the appointment authority publicly announced outside the country (see, e.g., Supreme Court Decision 2002Du168).

5. Preliminary claim: Determination on the legitimacy of the instant disposition

In full view of the following facts and circumstances acknowledged in light of the purport of the entire pleadings in each of the facts acknowledged earlier, the aforementioned facts and evidence as well as Eul evidence Nos. 1 through 9, the instant disposition that the Defendant appointed the Plaintiff to be promoted for continuous service on or before January 31, 2017 is lawful. Accordingly, this part of the Plaintiff’s assertion is without merit.

(1) To be promoted for continuous service, he/she shall serve in the relevant rank during the period of continuous service pursuant to Article 35-4 of the former Decree on the Appointment of Public Officials as well as shall not be subject to grounds for restrictions on promotion under Article 32 of the former Decree on the Appointment of Public Officials, as seen earlier, and shall be included in the number of vacancies to be filled in the order of precedence in the list of candidates for promotion of the relevant agency pursuant to Article 33 within the number of vacancies to be filled in the order of precedence in the list of candidates for promotion of the relevant agency, and shall undergo examination by the competent ordinary promotion committee

② The Plaintiff’s tenure of office shall be included in the period of continuous service (the period of service in Grade 9) pursuant to Article 11(1)4 of the Special Cases Concerning the Appointment, etc. of Public Officials, and Article 35-4(2) of the former Decree on the Appointment of Public Officials. Accordingly, when calculating the proper period of continuous service, the Plaintiff’s period of continuous service shall be at least six years as of June 14, 2015 and shall meet the requirements of continuous service promotion period. Accordingly, the Plaintiff shall be included in the subject of examination at the time of appointment for continuous service. Nevertheless, as the Defendant’s negligence omitted the Plaintiff’s continuous service promotion period from June 14, 2015 to January 31, 2017; the Plaintiff was excluded from the period of continuous service (i.e., the date of service in Grade 9; January 27, 2015; January 31, 2016; and each date of continuous service).

③ However, even if the Plaintiff’s tenure of office is included in the period of continuous service, it appears that the order of priority on the list of candidates for promotion prepared on November 27, 2015, January 31, 2016, and July 31, 2016 at the time of promotion for continuous service is not included in the number of times of promotion. In other words, the order of priority on the list of candidates for promotion is based on the order of priority on the sum of “performance evaluation”, “career rating”, and “career rating”. However, even if the Plaintiff included the Plaintiff’s external tenure of office in the period of promotion for continuous service and the Plaintiff is assumed to receive a full score from the career rating in consideration of the following performance rating, the total performance rating is lower in view of the performance rating as seen below, and thus, it is not included in the scope of priority on each list of candidates for promotion prepared on July 31, 2016 at the time of promotion for continuous service.

A person shall be appointed.

④ The Plaintiff asserts that there exists a practice that enhances “performance rating” for a person included in the subject-matter of continuous service promotion upon meeting the requirements for ordinary continuous service promotion. If the Plaintiff had properly included the Plaintiff’s external office period in the period of continuous service promotion, the Plaintiff’s total performance rating would have been high, and the ranking according to the promotion candidates list would have been included in the scope of multiple times of promotion. However, the performance rating for public officials of class V or below (hereinafter “performance evaluation”) is based on the evaluation of work performance and capabilities (hereinafter “performance evaluation, etc. of public officials”); the evaluation item of performance evaluation is based on work performance and ability (Article 14 of the same provision); and the evaluation item of performance evaluation is based on work performance and ability, etc. of public officials subject to evaluation (Article 16 of the same provision) after consultation with the confirmation person, and considering the degree of achievement of performance rating of public officials subject to evaluation (Article 16 of the same provision), etc., as alleged by the Plaintiff, it cannot be uniformly concluded that the evaluation person subject to continuous service promotion should have uniformly been included in the performance rating.

⑤ In addition, the Plaintiff was subject to a disciplinary measure on July 11, 2016, which constitutes grounds for restrictions on promotion pursuant to Article 32(1)2(c) of the former Decree on the Appointment of Public Officials, and thus, the Plaintiff could not be promoted at the time of continuous service promotion on January 5, 2017, which was conducted within six months from the date on which the execution of the disciplinary measure was completed.

(6) Ultimately, even if the period of continuous service is included in the period of continuous service, it is reasonable to deem that the Plaintiff could not be appointed for continuous service as a protection period until January 31, 2017.

6. Conclusion

Therefore, the main claim in the lawsuit of this case is dismissed as it is unlawful, and the conjunctive claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Awards and decorations for judges;

Judges Lee Jin-hoon

Judges Kim Gin-han

Note tin

1) The Plaintiff was originally a public official in technical service, but was appointed as a public official in general service in accordance with Article 3(1) of the Addenda of the State Public Officials Act (amended by Act No. 11530, Dec. 11, 2012) (amended by Act No. 11530, Dec. 12, 2013).

2) As examined in the following 1-C and D, the Plaintiff was initially promoted for continuous service as a guardian on February 22, 2017, but was subsequently changed retroactively to the promotion for continuous service on January 31, 2017.

3) on the basis of a full score (25.00), the career rating score is based on a full score.

4) on the basis of a full score (25,00), the career rating score is based on a full score.

5) on the basis of a full score (20,00) of the career rating.