[장애연금지급거부처분취소][공2009하,1779]
Pursuant to Article 36 (1) of the Addenda to the National Pension Act, Acts and subordinate statutes applicable to "the date on which the degree of disability is determined" of "the person for whom two years have passed before the first diagnosis date of the National Pension Act" subject to the former Act;
Article 36(1) and (2) of the Addenda to the National Pension Act shall be individually interpreted in light of the general requirements for entitlement to a disability pension. On the other hand, the provision on the date of determining the degree of disability is meaningful not only to present the base date of disability but also to present the standard for calculating the amount of disability pension which is specifically caused, such as the initial date of determining the degree of disability. In light of the fact that the Addenda to the National Pension Act (amended by Act No. 8541, Jul. 23, 2007) separates the provision on entitlement to a disability pension and prescribes the transitional measures different from each other, Article 36(1) and (2) of the Addenda to the above Act shall be individually interpreted. Therefore, it cannot be interpreted that “a person for whom two years have passed since the initial date before this Act enters into force” under Article 36(2) of the Addenda to the above Act is excluded from the “a person for whom two years have passed since the initial date of the enactment of the National Pension Act before the enforcement of the Act.”
Article 58 (1) of the former National Pension Act (wholly amended by Act No. 8541 of July 23, 2007) (see current Article 67 (1)), Article 67 (1) of the National Pension Act, Article 36 (1) and (2) of the Addenda to the National Pension Act (wholly amended by Act No. 8541 of July 23, 2007)
Plaintiff (Law Aid Corporation affiliated with Korea Legal Aid Corporation)
National Pension Management Corporation
Busan High Court Decision 2008Nu5865 decided May 8, 2009
The appeal is dismissed. The costs of appeal are assessed against the defendant.
1. Judgment on ground of appeal No. 1
Article 58 (1) of the former National Pension Act (wholly amended by Act No. 8541 of Jul. 23, 2007; hereinafter referred to as the "former Act") provides for the eligibility for disability pension for a person who has a physical or mental disability even after his/her completion of treatment due to a disease or injury that occurred during the subscription period, while Article 58 (2) of the same Act provides for the eligibility for disability pension for a person who has been suffering from a disease or injury under paragraph (1) after two years from the first diagnosis date, and Article 58 (2) of the former Act provides for the eligibility for a disability pension after the lapse of six years from the second anniversary of the first diagnosis date, and provides for a person who has not been entitled to a disability pension before the lapse of six years from the second anniversary of the first diagnosis date of the disability pension Act shall be determined on the basis of the first diagnosis date of his/her eligibility for a disability pension before the lapse of six years from the first diagnosis date of the disability pension Act, and it shall be interpreted as one day before the first diagnosis date of six years from the Act.
Therefore, Article 36 (2) of the Addenda cannot be interpreted to exclude "the person who had the first diagnosis before this Act enters into force" from "the person for whom two years have passed since the first diagnosis before this Act enters into force." Thus, even though a person for whom two years have passed since the first diagnosis before this Act enters into force is subject to the former Act pursuant to Article 36 (1) of the Addenda, the amended Act shall apply to the date of determination on the degree of disability, so long as the application of the amended Act is no less favorable than the application of the former Act pursuant to Article 36 (2) of the Addenda.
The court below held that Article 36 (2) of the Addenda to the amended Act shall apply to the plaintiff for whom two years have passed since the first day before the enforcement of the amended Act because it cannot be deemed disadvantageous compared to the case in which the provision of the former Act concerning the determination of degree of disability of the plaintiff should be applied. In light of the above legal principles and records, the court below did not err by misapprehending the legal principles as to the interpretation of Article 36 of the Addenda to the amended Act.
2. Judgment on ground of appeal No. 2
This part of the grounds of appeal is not legitimate grounds of appeal against the first instance judgment unrelated to the judgment of the lower court.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Hong-hoon (Presiding Justice)