[Plaintiff, Appellee] Plaintiff (Attorneys Cho Young-gil and 1 other, counsel for the plaintiff)
[Defendant, Appellant] Daejeon Metropolitan City (Hanbat Law Firm, Attorneys Park Ju-bong and 1 other, counsel for the defendant)
[Judgment Below] Daejeon District Court Judgment 2005Gadan661, decided April 12, 2005
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. As to Grounds of Appeal Nos. 1, 2, and 3
In order for an administrative disposition to be deemed void ab initio, it is not sufficient that the disposition merely contains a ground of illegality; the defect must be a grave one that violates an important part of the applicable statutes and regulations, and must be objectively obvious. In determining whether a defect is grave and obvious, it is necessary to teleologically examine the purpose, meaning, and function of the relevant statutes and regulations, while also reasonably considering the particular characteristics of the specific case at issue (see Supreme Court en banc Decision 95Nu8669, delivered June 19, 1997; Supreme Court Decision 2004Du10968, delivered June 24, 2005).
Moreover, the system of honorary retirement allowances for public officials is intended to induce public officials to retire before reaching the mandatory retirement age, thereby promoting the renewal of personnel within the organization, by paying an honorary retirement allowance as compensation for the disadvantages incurred by retiring before mandatory retirement age—namely, the loss of income that could have been earned through continued employment, or expenses incurred in seeking new employment (see Supreme Court Decision 2000Du2389, delivered November 9, 2001; Supreme Court Decision 2006Du5021, delivered July 28, 2006, etc.). Accordingly, if a public official who received an honorary retirement allowance and retired on that basis is subsequently reappointed as a career public official, the original purpose of paying the honorary retirement allowance is undermined, and thus there is a need to recover the honorary retirement allowance already paid. However, even in such a case, at least the portion of the already-paid honorary retirement allowance corresponding to the period of retirement from the time of honorary retirement until the time of reappointment is consistent with the original purpose for which the honorary retirement allowance was paid; therefore, recovery should be made at an appropriate recovery rate that excludes the portion corresponding to that period of retirement.
However, according to the facts as found by the court below, the Defendant, in reappointing as teachers the honorarily retired teachers, including the Plaintiff, who had previously retired honorarily while serving as teachers, required them to return the entire amount of the honorary retirement allowance they had received at the time of honorary retirement, without taking into account the period of retirement from the time of honorary retirement to the time of reappointment.
If so, this measure by the Defendant amounts to recovering, from the already-paid honorary retirement allowance, an amount exceeding the appropriate recovery rate that excludes the portion corresponding to the period of retirement from the time of honorary retirement to the time of reappointment. This fails to satisfy the legitimacy of purpose, the minimization of harm, and the balance of legal interests, and thus violates the principle of proportionality. Furthermore, by requiring full recovery from reappointed teachers without making reasonable distinctions according to their differing periods of retirement, it also causes inequality among them, thereby violating the principle of equality. Considering comprehensively the purpose, meaning, and function of the honorary retirement allowance system, together with the fact that the Defendant's recovery measure in this case involves recovering an honorary retirement allowance that had already been lawfully paid, and the fact that the existence of the aforementioned defect can be confirmed directly from the very nature of the measure to recover the already-paid honorary retirement allowance, without any need for investigation into the specific factual relationships, it is reasonable to view such a defect as grave and obvious.
The judgment below, which is to the same effect, is justified, and there is no error of law, as alleged in the grounds of appeal, involving a misapprehension of the legal principles concerning the principle of proportionality and the principle of equality, or a misapprehension of the legal principles concerning the requirements for the invalidity of an administrative act.
2. As to Ground of Appeal No. 4
Upon examining the reasoning of the judgment below in light of the record, the court below held that the aforementioned measure to recover the honorary retirement allowance is a divisible disposition attached, as a condition, to the principal administrative dispositions of the decision to pass and the reappointment disposition, imposing a monetary burden on the other party; that the illegality does not lie in the imposition of the burden itself, but rather in the failure to establish differentiated amounts according to reasonable standards in determining the scope of the burden; and that, accordingly, it is reasonable to deem void the portion exceeding the amount that the Plaintiff should bear under reasonable standards. The court below then, comprehensively considering the circumstances stated in its judgment, determined an appropriate recovery rate, deemed void the portion exceeding the amount calculated according to that recovery rate, and ordered the Defendant to return, as unjust enrichment, the amount corresponding to the void portion. This determination is justified, and there is no error of law, as alleged in the grounds of appeal, involving a misapprehension of the legal principles concerning the interpretation of statutes and regulations.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order, all participating Justices concurring.
Justice Lee Hong-hoon (Presiding Justice), Kim Young-ran (Justice in charge), Kim Hwang-sik, Ahn Dae-hee