[Plaintiff, Respondent] Kang Seok-young
[Defendant, Appellant] Daegu Metropolitan City, Litigation Counsel Attorney Jeong Ji-cheol
[Judgment Below]
Daegu District Court Judgment 85Na1114, rendered April 30, 1986
[Order]
The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.
[Reasoning]
The first ground of appeal is examined.
According to the reasoning of the judgment below, the court below found the following facts: the Plaintiff was appointed as a village clerk (동서기) within the jurisdiction of the Defendant City on February 15, 1957, and thereafter served through the positions of village civil servant (동주사) and assistant local administrative civil servant (지방행정주사보), and from May 5, 1970 to June 30, 1982, served as a village office chief (동사무장) holding the rank of local administrative civil servant (지방행정주사), and upon retirement, received from the Defendant City only the retirement allowance calculated based on the period of service from June 1964 to June 1982, which was the period during which the Plaintiff had paid contributions (기여금) as prescribed by the Public Officials Pension Act (공무원연금법). Having found these facts, the court below determined that although the Plaintiff, as a general service civil servant (local administrative civil servant) under the Local Public Officials Act (지방공무원법), is subject to the Public Officials Pension Act, since the Plaintiff did not pay the retroactive contributions (소급기여금) prescribed by that Act for the period of service prior to May 1964, that period could not be aggregated into the period of service serving as the basis for calculating the retirement allowance under that Act; however, the court below determined that even local public officials are subject to the retirement allowance provisions of the Labor Standards Act (근로기준법) to the extent they are not covered by the Public Officials Pension Act, and accordingly ordered payment of retirement allowance for the period of service prior to May 1964 pursuant to the provisions of Article 28 of the aforementioned Act.
Upon examination:
According to Article 10 of the Labor Standards Act, the said Act applies to all businesses or workplaces.
According to Article 11 of the said Act, the said Act also applies to the State, Seoul Special Metropolitan City, Busan City, provinces, cities, counties (gun), towns (eup), townships (myeon), and other entities equivalent thereto.
According to Article 14 of the said Act, "worker" under the said Act is defined as a person who, regardless of the type of occupation, provides labor to a business or workplace for the purpose of wages.
Therefore, State or local public officials are also considered "workers" under Article 14 of the said Act, as they provide labor for the purpose of wages, and thus, in principle, Article 28 of the said Act, which is the provision concerning workers' retirement allowances, is interpreted to apply to them as well.
However, since the Public Officials Pension Act has been enacted to specifically govern the payment of retirement allowances to State and local public officials, with regard to the payment of retirement allowance to the Plaintiff, who is a local public official, the provisions of the said Act must be followed absent special circumstances, and the application of the Labor Standards Act is excluded.
However, a question may arise as to whether, with regard to the period of service prior to May 1964 for which the Plaintiff did not receive retirement allowance under the Public Officials Pension Act because he failed to pay the retroactive contributions, the application of the said Act was excluded, such that Article 28 of the Labor Standards Act, which is the principal provision concerning retirement allowances for all workers, should apply instead. However, matters such as the calculation of the Plaintiff's period of service, the method of aggregating periods of service, and the effect of failure to pay retroactive contributions must be determined through the application and interpretation of the relevant provisions of the Public Officials Pension Act, including Articles 23 and 24, and if there is any objection to such determination, relief must be sought by filing a request for examination with the Public Officials Pension Benefits Reexamination Committee (공무원연금급여재심위원회) pursuant to Article 80 of the said Act. Therefore, it cannot be concluded that the application of the said Act was excluded with respect to the period of service that was not aggregated, and accordingly, the application of Article 28 of the Labor Standards Act must be excluded.
In conclusion, the court below, on the premise that the application of the Public Officials Pension Act was excluded with respect to the period of service that was not aggregated, applied the provisions of Article 28 of the Labor Standards Act and ordered payment of retirement allowance, which constitutes a misunderstanding of the legal principles of the Labor Standards Act and the Public Officials Pension Act that affected the judgment. The argument pointing out this error has merit.
Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below, all participating Justices being in unanimous agreement, and it is so ordered as stated in the Order.
Justice Yoon Il-young (Presiding Justice), Choi Jae-ho, Kim Dal-sik