당연퇴직 사유에 관한 군무원인사법 규정의 해석 - 대법원 2016.12 29.선고 2014두43806 판결 - = Interpretation of the provision on Automatic Retirement under the Act on The Personnel Management of Civilian Military Employee - Regarding Supreme Court’s decision, 2014du43806, 2016. 12. 29.-

다국어 초록 (Multilingual Abstract)

Under the Act On The Personnel Management Of Civilian Military Employee and State Public Officials Act, a civilian military employee who committed a crime prescribed in Article 355 or 356 of the Criminal Act with regard to his or her duty during his or her tenure of office as a civilian military employee(hereinafter “occupational embezzlement”) and was sentenced to a fine of at least three million won shall retire automatically.
The gist of the instant case pertains to the question of whether a civilian military employee sentenced to a fine of at least three million won for occupational embezzlement and other concurrent crimes shall retire automatically.
Considering the legal nature of the automatic retirement of public officials, the effect of the automatic retirement on the status of public officials, and the need to constitutionally and strictly interpret each instant provision, the Supreme Court judged that a fine for occupational embezzlement and other concurrent crimes is not considered a reason for automatic retirement.
Regarding the interpretation of State Public Officials Act on automatic retirement, there may be a view that ① a fine for a occupational embezzlement and other concurrent crimes should not be considered as a reason for automaic retirement, ② a court should re-decide on the appropriate punishment for occupational embezzlement to determine whether the reason for automatic retirement is applicable, and ③ a fine for a occupational embezzlement and other concurrent crimes should be considered as a reason for automaic retirement.
Automaic retirement has a significant impact on the legal status of public officials. The interpretation that a fine for a occupational embezzlement and other concurrent crimes should be considered as a reason for automaic retirement may breach the rule against excessive restriction or the principle of equality.
In a case where a statutory provision allows for several different interpretations, the one corresponding to the Constitution ought to be opted for, thereby making a pro-constitutional interpretation that removes the unconstitutionality. Therefore the conclusion of instant case that a fine for occupational embezzlement and other concurrent crimes is not considered a reason for automatic retirement is justifiable.

참고문헌 (Reference)

1 이의진, "헌법재판소결정해설집" 헌법재판소 2014

2 김진한, "합헌적 법률해석의 원칙과 위헌적 법률해석의 통제범위와 기준 - 서울중앙지방법원 2009노677 판결에 대한 평석을 중심으로 -" 한국헌법학회 18 (18): 45-82, 2012

3 허완중, "법형성이 아닌 법발견(법해석)인 합헌적 법률해석" 사법발전재단 1 (1): 557-592, 2017

4 정계선, "법원의 헌법적 판단" 한국헌법학회 21 (21): 101-154, 2015

5 김대휘, "법률해석의 방법" 34 (34): 2021

6 김동국, "법령의 해석방법과 구체적 적용"

7 홍승면, "대법원판례해설" 2006