[2] Whether the retroactive effect of the Constitutional Court's decision of unconstitutionality on items 2 to 5 of Article 47 of the former Public Officials Pension Act on a general case filed after the decision is made (negative)

[3] In a case where a retirement pension is paid erroneously to a beneficiary despite the grounds for restrictions on benefits under each subparagraph of Article 47 of the former Public Officials Pension Act, whether it constitutes “other cases where other benefits are paid erroneously” under Article 31(1)3 of the same Act (affirmative), and whether the administrative agency’s notice of recovery for the excessive recovery of benefits constitutes an administrative disposition (affirmative)

[4] In a case where an administrative agency takes an administrative disposition based on a certain legal provision and the Constitutional Court determines the provision as unconstitutional and the administrative disposition is defective, whether the defect is a ground for invalidation of an administrative disposition (negative in principle)

1. As to Plaintiff 2’s ground of appeal

The effect of the decision of unconstitutionality made by the Constitutional Court after the decision of unconstitutionality extends to a general case where the relevant legal provisions are the premise of the decision of unconstitutionality. However, it does not deny the restriction of the retroactive effect by other legal principles, but it is rather necessary to restrict the retroactive effect when it is inevitable to maintain legal stability or to protect the trust of the parties (see, e.g., Supreme Court Decision 2006Du1296, Jun. 9, 2006). However, with respect to the decision of unconstitutionality of the Constitutional Court on subparagraphs 2 through 5 of Article 47 of the Public Officials Pension Act (amended by Act No. 6328, Dec. 30, 200), if the retroactive effect of the decision of unconstitutionality is recognized with respect to the general case brought after the decision of unconstitutionality, the request for legal stability and trust in the public officials pension system established by the previous Acts and subordinate statutes is remarkably superior to the request of the beneficiaries to remedy the rights of benefits protected thereby, and it does not extend to the general case 96.

According to the reasoning of the judgment below, the court below acknowledged the following facts in full view of adopted evidence: (a) the plaintiffs' lawsuit of this case was instituted after the Constitutional Court's decision of unconstitutionality as to Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act was rendered; and (b) determined that the retroactive effect of the above decision of unconstitutionality was

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the retroactive effect of the decision of unconstitutionality.

2. As to the Defendant’s ground of appeal

If a retirement pension has been erroneously paid to a beneficiary despite the grounds for restrictions on benefits under each subparagraph of Article 47 of the Public Officials Pension Act (amended by Act No. 5117 of Dec. 29, 1995; hereinafter the same shall apply), it constitutes "other benefits under Article 31 (1) 3 of the Public Officials Pension Act" and at this time, the notification of recovery of the excessive paid benefits constitutes an administrative disposition because it imposes new obligations on the parties or limits their rights and interests (see Supreme Court Decision 99Du5443, Nov. 28, 200, etc.).

In addition, if the Constitutional Court, after an administrative agency made an administrative disposition based on a certain legal provision, decides the provision as unconstitutional, the administrative disposition will result in the same defect as that taken place without any legal basis. However, the circumstance that the law is in violation of the Constitution cannot be viewed as objectively apparent before the Constitutional Court renders a decision of unconstitutionality. Thus, such defect is only a ground for revocation of the administrative disposition, and it cannot be viewed as a ground for invalidation automatically (see Supreme Court Decision 92Nu9463 delivered on October 28, 1994, etc.).

Therefore, as to the defendant's assertion, that is, the part of the recovery amount in the amount accepted by the court below shall be by the notification of recovery, which is an administrative disposition, and it shall not be deemed as null and void, and thus, it shall not be returned. The court below erred in the misapprehension of legal principles as to the disposition of recovery and the invalidation of administrative disposition, which affected the conclusion of the judgment, on the ground that the court below's rejection of the decision on the ground that it cannot be deemed that

3. Conclusion

Therefore, the part of the decision of the court below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal by the plaintiff 2 is dismissed and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)