The Supreme Court of Korea ruled that, without exceptional provisions, it shall not be possible to cut down remuneration of contract-based(non-tenured) regional government officials without under due disciplinary process by law, and the regulations em...
The Supreme Court of Korea ruled that, without exceptional provisions, it shall not be possible to cut down remuneration of contract-based(non-tenured) regional government officials without under due disciplinary process by law, and the regulations empowering the regional government to do that are invalid because they lack legal ground, or they exceed their legal authority. This ruling is very meaningful, since it empathizes the principle of legality in the field of administrative contract which, in the long run, serves to guarantee rule of law. Even though the said decision above did not explain the reason, it located reduction of remuneration at the same place of disciplinary disposition, so that we may have room to interpret ‘reduction of remuneration’ as a kind of ‘administrative disposition’ which is disputable through appeal litigation before court.
Currently, the trend is that the number of contract-based government officials is increasing, who have equally taking periodic employment contracts with government. This trend is explainable in that the feedback of the outcome of service is easy in this type of workforce, and moreover, this type of management of human resources may double effectiveness of financial affairs of public sector. In this regard, reduction of remuneration should not be treated as disciplinary disposition.
According to the applicable regulation, in order to reduce remuneration, written notice should be given to the employee, and should not be done automatically. With reviewing the process, cause, amount of the reduction, this kind of reduction of remuneration should be regarded as notice of legal action based on administrative contract between equal parties, not as administrative disposition. On the other hand, litigation concerning legal relation classified as public party litigation. Therefore, as public phose salaries got tion. On, should pursn. to recover their rly.ts in the form of public party litigation.
In the real legal practice, classification of administrative litigations is not easy and clear, so the author hopes future discussion shall be continuous and more active.