[2] In a case where the Constitutional Court had already declared unconstitutional and lost its validity, and a second-lane decision of unconstitutionality has already been made on the same legal provision, whether such a case has its effect (negative)

[2] In a case where the Constitutional Court has already declared unconstitutional and has again rendered a second unconstitutional decision with respect to the same legal provision which has already ceased to be effective, the binding force of the second unconstitutional decision shall also be the second unconstitutional decision, and thus the second unconstitutional decision has already been declared unconstitutional by the first unconstitutional decision, and it is only confirmed that the second unconstitutional decision has no validity with respect to the same legal provision which has already ceased to be effective by the first unconstitutional decision, and thus, it cannot be said that the second unconstitutional decision constitutes concurrent cases even if a lawsuit was filed prior to the

2. The costs of the lawsuit after an appeal shall be borne by the plaintiff (appointed party).

A. Upon receiving the retirement pension under the Military Pension Act from the Plaintiff’s position as a soldier, the Plaintiff and the designated parties were paid remuneration or other benefits for their service in the former Military Pension Act (amended by Act No. 4034, Dec. 29, 198; Act No. 5063, Dec. 29, 1995; Act No. 6327, Dec. 30, 200) or the War Commemoration Service Association (amended by Act No. 6327, Dec. 30, 200; 25; 3; 25).

B. However, while the plaintiff and the designated parties worked in the Seoul Special Metropolitan City Agricultural and Fishery Products Corporation or the War Commemoration Association, each of the above legal provisions, Article 42(2) of the Enforcement Decree of the Military Pension Act, and Article 42(2) of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 14882 of Dec. 30, 1995), the amount equivalent to 1/2 of the retirement pension was suspended.

C. However, with respect to the suspension of payment of a retirement pension, the Constitutional Court declared that "Article 21 (5) 2 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995; Act No. 6327, Dec. 30, 2000; Act No. 6327, Dec. 30, 200) shall be delegated to a government-invested institution or re-invested institution, which is an institution subject to suspension of payment of a retirement pension, as the Ordinance of the Ministry of National Defense, and that the requirements and contents of a retirement pension shall be prescribed by Presidential Decree, it violates the principle of prohibition of comprehensive delegation under the Constitution, and that the same provision is unconstitutional for the same reason (hereinafter referred to as "decision of unconstitutionality of the First Military Pension Act").

D. After that, on December 22, 2005, the Constitutional Court declared that Article 21(5)3 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995; hereinafter “the second unconstitutional provision of this case”) is unconstitutional (hereinafter “the second unconstitutional decision”).

[Evidence] When there is no dispute between the parties or when there is evidence of No. 1, No. 2 and No. 36, Gap evidence of No. 4-1 to No. 25, Gap evidence of No. 7-1 to No. 16, Gap evidence of No. 8-1 to No. 6, the purport of the whole pleadings, and the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

(1) On September 25, 2003, the Constitutional Court rendered a decision of unconstitutionality on Article 21 (5) 2 through 5 (hereinafter “the first unconstitutional provision”) of the former Military Pension Act (amended by Act No. 5063 of Dec. 29, 1995, and amended by Act No. 6327 of Dec. 30, 200) on Sep. 25, 2003, the decision of unconstitutionality of Article 21 (5) 2 through 5 (hereinafter “the first unconstitutional provision”) shall have a retroactive effect on the general cases that were instituted thereafter. Therefore, the defendant is obligated to pay each of the claims to the designated parties including the plaintiff.

(2) Even if there is no retroactive effect on the decision of unconstitutionality of the first instance of this case, the Constitutional Court rendered a decision of unconstitutionality of the second instance of this case on December 22, 2005 in the case No. 2004Hun-Ga24, and the plaintiff's lawsuit of this case was filed on March 12, 2004, which was before the second decision of unconstitutionality of this case. Thus, the part from October 1, 1989 to December 12, 199, the payment of which was suspended pursuant to the second unconstitutionality Act of this case, among the plaintiff and the designated parties' claims, did not make a request of unconstitutionality with regard to the second unconstitutional decision of unconstitutionality of this case, but the pertinent law or legal provision, which was the premise of the decision of unconstitutionality, has an effect on the second unconstitutional decision of unconstitutionality of this case, and thus, the plaintiff's claim of this part of this case should be accepted at least.

B. Relevant statutes

Attached Table 1 is as stated in the "relevant statutes".

(c) Markets:

(1) We examine the first argument.

The effect of the decision of unconstitutionality of the Constitutional Court is that the Constitutional Court made a request for adjudication of unconstitutionality of the same kind before the decision of unconstitutionality is made, or that the Constitutional Court made a request for adjudication of unconstitutionality of the same kind of case before the decision of unconstitutionality was made, but the relevant law or provision of law is the premise of judgment and also a general case instituted for the same reason as above after the decision of unconstitutionality is made. However, the effect of the decision of unconstitutionality is not limited, and it is not limited by other legal principles, and it is necessary to limit the retroactive effect of the decision of unconstitutionality if it is inevitable for the maintenance of legal stability or for the protection of the trust of the parties (see Supreme Court Decision 2006Du279, Jun. 15, 2006).

As seen earlier, the payment of 1/2 of retirement pension to be paid to the Plaintiff and the designated parties under the Military Pension Act while serving in the Seoul Special Metropolitan City Agricultural and Fishery Products Corporation, etc., among the first unconstitutional provisions, has been suspended. The purpose of the first unconstitutional decision is to “right to receive retirement pension is to protect property rights as a whole, but the purpose of the first unconstitutional decision is to preserve income loss and social security. Therefore, if income such as wages has been newly generated after retirement pension, it would be possible for legislators to reduce the amount of payment to be unconstitutional by considering the social policy aspect, the financial situation of the State, and other various circumstances, and thus, it cannot be deemed that the first unconstitutional decision of unconstitutionality was made on the ground that the first unconstitutional provision of the first unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional unconstitutional.

Therefore, the plaintiff's above assertion is without merit.

(2) We examine the second argument.

First, the decision of the second unconstitutionality of this case was made with respect to Article 21(5)3 of the former Military Pension Act (amended by Act No. 4034 of Dec. 29, 198, and amended by Act No. 5063 of Dec. 29, 1995). Thus, the claims of 25 designated parties whose payment has been suspended under Article 21(5)2 of the same Act are without merit, and therefore, the claims of the plaintiff and the remaining designated parties are examined.

If the Constitutional Court declares a decision of unconstitutionality, the provision of the law shall lose its effect from the date on which the decision is made in accordance with Article 47(2) of the Constitutional Court Act. Therefore, the decision of unconstitutionality of this part shall not be subject to the adjudication of unconstitutionality (see, e.g., Constitutional Court Order 89HunGa86, Sept. 29, 1989; Supreme Court Order 91HunGa1, Aug. 31, 1994).

Article 21(5)2 through 5 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995; Act No. 6327, Dec. 30, 200); and Article 21(5)2 through 5 of the same Act (amended by Act No. 4034, Dec. 29, 198; Act No. 5063, Dec. 29, 1995; Act No. 5063, Dec. 3, 1995; Act No. 5063, Dec. 29, 1995; Act No. 5063, Dec. 29, 1995; Act No. 5063, Dec. 29, 1995; Act No. 5294, Dec. 29, 200; Act No. 5519, Dec. 3, 1998.

In light of the above circumstances, the binding force of the first unconstitutional decision of this case extends to the second unconstitutional decision of this case. Thus, the second unconstitutional decision of this case is only to confirm that the same legal provision which has already been declared unconstitutional by the first unconstitutional decision of this case and has already been invalidated by the same unconstitutional decision of this case, and it is only to confirm that there has already been no validity as to the same legal provision which has already been invalidated by the law. Thus, even if the lawsuit of this case was filed before the second unconstitutional decision of this case

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, all of the plaintiff's claims of this case are dismissed as it is without merit, and the judgment of the court of first instance which dismissed the plaintiff's claims before its expansion is justified as it is so decided, and it is so decided as per Disposition by the plaintiff's appeal and the claim extended in the trial.

Judges Cho Jong-ok (Presiding Judge)