취소판결의 기속력에 따른 결과제거의 범위 ― 공무원 신분박탈처분 취소판결에 따른 계급정년 연장 여부를 중심으로 ―

If a decision to cancel the illegal dismissal has been finalized, but the rank retirement age is applied, the opportunity for promotion is lost and the public official has to retire due to the expiration of the rank retirement age. Such loss of promotion opportunity and early retirement due to rank retirement age are the result of illegal dismissal. In this case, the question is whether to extend the rank retirement age and grant promotion opportunities as follow-up measures based on the cancellation decision. In this regard, the Supreme Court ruling in 2007 stated that the class retirement age could not be extended only with a revocation decision, but in exceptional cases, the extension was permitted in cases where the appointing authority was seriously responsible for the dismissal. However, it is difficult to see these standards as properly reflecting the jurisprudence on the binding force of a judgment of revocation. In fact, in a recent case, the first trial recognized the extension of the retirement age, but the appeals court rejected it on the ground that it was not seriously liable. There is a problem in that The standard of liability for national compensation is equally applied to the removal of unlawful results following a judgment of revocation. The 2007 Supreme Court decision needs to be reexamined in terms of the binding force of the revocation decision. In the case of Germany, in order to maintain the boundary between the state compensation and the right to claim the removal of the result, the restoration of the hypothetical state in the absence of an illegal disposition is excluded from the object of removal of the result. On the other hand, in the case of France, it includes the restoration of a hypothetical state in the absence of illegal administrative action in that there is an obligation to promote and reinstate a position that would have been selected if not expelled. As such, the scope of the removal of the result according to the judgment of revocation may be determined in various ways. In the case of Korea, there is a ruling that recognizes retroactive promotion or ex-post payment of allowance for voluntary retirement, and the Supreme Court said that an opportunity to apply for cost support that was not made due to the restriction disposition should be provided ex post after the decision to cancel the restriction disposition. This can be seen as guaranteeing an opportunity to acquire a position or profit that the party could have obtained if there had been no illegal disposition. Therefore, whether or not to extend the rank retirement age is a matter of the scope of the removal of the result or restoration as the effect of the revocation judgment, and has nothing to do with state compensation. It is difficult to see that the scope depends on responsibility, which is a requirement for state compensation. Considering that Korea has a higher possibility of executing illegal administrative measures compared to Germany and a lower possibility of receiving compensation from the state for illegal results compared to France, In order to realize the complete rule of law against illegal dispositions, it is necessary to proceed in the direction of actively acknowledging the scope of the removal of unlawful results according to the binding force of the revocation judgment.