[2] Whether the retroactive effect of the Constitutional Court Order 2004Hun-Ga24 Decided December 22, 2005 on the other case is not the pertinent case (negative)

[2] The Constitutional Court Order 2004HunGa24 decided Dec. 22, 2005 (the second decision of unconstitutionality related to No. 3) shall be deemed to be a part of Article 21 (5) 3 of the former Military Pension Act, which lost its effect by the Constitutional Court Order 2001HunGa22 decided Sep. 25, 2003, which was the unconstitutionality of the Constitutional Court Order 2001HunGa2 decided Sept. 25, 2003. The second decision of unconstitutionality related to No. 3 shall not be deemed to be a retroactive effect on the other cases, even if it is separate that the second decision of unconstitutionality may be recognized as a retroactive effect on the other cases.

1. The Constitutional Court decided on September 25, 2003 that "Article 21 (5) 2 through 5 of the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 200) shall be in violation of the Constitution," and that "Article 21 (5) 3 of the former Military Pension Act (amended by Act No. 5063 of Dec. 29, 1995) shall be in violation of the Constitution," and that "Article 21 (5) 2 through 5 of the former Military Pension Act (amended by Act No. 6327 of Mar. 26, 2009) shall be in violation of the Constitution, and Article 21 (5) 3 of the former Military Pension Act (amended by Act No. 2515 of Dec. 29, 200) shall be in violation of the Constitution, and Article 207 (5) 25 of the former Military Pension Act (amended by Act No. 9785 of Mar. 26, 298) shall be amended by Act No. 295. 2985.

2. The amended Act is effective upon its promulgation in accordance with the resolution of the National Assembly. In light of the history of the amendment of the former Military Pension Act, Article 21(5)2, 4, and 5 of the amended Act of December 29, 1995 was amended by the amended Act of December 29, 1995, but Article 21(5)3 of the Military Pension Act was not amended by the amended Act of December 30, 200, and Article 21(5)2, 4, and 5 of the former Military Pension Act, which was decided to be unconstitutional by the first decision of unconstitutionality, were completely deleted by Act No. 6327, Dec. 30, 200; Article 21(5)2, 4, and 5 of the former Military Pension Act, which was wholly deleted by Act No. 6327, Dec. 30, 200; and Article 31(5)3, 208.

3. However, the decision of the second unconstitutionality with respect to subparagraph 2 is clear in the text of the order where the amount of retirement pension suspended under Article 21(5)2 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995) was unconstitutional with respect to the part within a half of retirement pension amount, which was not included in the provisions of the law which was decided as unconstitutional by the first unconstitutional decision of the unconstitutionality.

According to the evidence duly adopted by the court below, 25 of the plaintiff 25 of the above Military Pension Act was suspended from payment of one half of the retirement pension from April 1993 to September 2003 when the first decision of unconstitutionality was made. The payment suspension period from April 1993 to December 1999 during the above payment suspension period is the same period, and the second unconstitutional decision of unconstitutionality related to March 26, 209 was invalidated by the second unconstitutional decision of unconstitutionality related to subparagraph 2 of the above Article 21 (5) 2 of the former Military Pension Act which was amended by Act No. 3587 of Dec. 28, 1982, and the second unconstitutional decision of unconstitutionality related to the above two unconstitutional decision of unconstitutionality is based on Article 21 (2) 2 of the former Military Pension Act which was amended by Act No. 5063 of Dec. 29, 195.

Therefore, the judgment of the court below that the plaintiff 25's claim against the plaintiff 25 is groundless is contrary to the effect of the decision of unconstitutionality, which affected the conclusion of the judgment.

4. Meanwhile, as seen above, the second unconstitutional decision related to subparagraph 3 should be deemed to be a part of Article 21(5)3 of the former Military Pension Act, which was “before it was deleted by Act No. 3587 on December 28, 1982 before it was deleted by Act No. 6327 on December 30, 200,” which had already ceased to have been unconstitutional and has already ceased to have been unconstitutional, and as such, the second unconstitutional decision related to subparagraph 3 should not be deemed as a retroactive effect on the other cases, regardless of the fact that the second unconstitutional decision related to subparagraph 3 can be recognized as a retroactive effect on the other cases.

In the same purport, the lower court’s conclusion that the instant case does not affect the retroactive effect of the second decision of unconstitutionality as to No. 3 is justifiable.

The court below did not err in the misapprehension of legal principles as to the scope of the amended law or the retroactive effect which is subject to the decision of unconstitutionality as otherwise alleged in the ground of

5. Therefore, from April 1993 to December 1999, the part of the judgment of the court below against the plaintiff 25 against the plaintiff (appointed party) is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff (appointed party) is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)