군인연금50%정지급여분상당액지급
206Du279 Payment of an amount equivalent to 50% of the Military Pension Benefits
Plaintiff
Attorney Park Dong-dong, Counsel for the defendant-appellant
Korea
Seoul High Court Decision 2005Nu16699 Decided November 30, 2005
June 15, 2006
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the pertinent case where the Constitutional Court made a proposal of unconstitutionality, or the same case where the court made a request of unconstitutionality before the decision of unconstitutionality was made, but the relevant law or provision has not been filed with the Constitutional Court for the same kind of case as the case where the court made a request of unconstitutionality before the decision of unconstitutionality. However, the effect of the decision of unconstitutionality is not limited to cases where the scope of its effect cannot be unlimited and it is limited by other legal principles, and it is rather necessary to limit the retroactive effect of the decision of unconstitutionality if it is inevitable for the maintenance of legal stability or the protection of the trust of the parties (see Supreme Court Decisions 2005Du5628, Nov. 10, 2005; 2004Du7122, Nov. 10, 2005; 2004Du7134, Oct. 24, 2094).
The facts duly confirmed by the court below and the records are as follows. The plaintiff, who served as a soldier for not less than 20 years and received retirement pension under the Military Pension Act from April 1, 1998 to November 30, 2002, was employed as a military personnel's mutual aid association and received remuneration and other benefits. On January 31, 200, the Military Personnel Mutual Aid Association (amended by Act No. 5063, Dec. 29, 195; hereinafter the same) Article 21 (5) 5 of the former Military Pension Act; Article 4 (1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of National Defense No. 510, Jan. 31, 200); Article 21 (5) 5 of the former Military Pension Act (amended by Presidential Decree No. 510, Nov. 31, 200); Article 4 (2) of the former Enforcement Decree of the Military Pension Act as an institution subject to suspension of payment of all or part of pension.
Since payment of an amount equivalent to 1/2 of the Plaintiff’s retirement pension has been suspended from the time of November 202, the Constitutional Court ruled that Article 21(5)2 through 5 of the former Military Pension Act is unconstitutional (see Constitutional Court Decision 2001HunGa22, Sept. 25, 2003; hereinafter “instant unconstitutionality decision”). The purport of the ‘right to receive retirement pension' is to protect property rights as a whole, but its purpose is to protect social security, the suspension of payment system is basically to preserve income after retirement pension, and its nature is to protect social security. Thus, it is possible for legislators to reduce the scope of payment discretion by considering the social policy aspect of the Plaintiff’s retirement pension and various circumstances such as the state’s financial situation, and thus, it cannot be viewed that the above provision of the Military Pension Act is unconstitutional because the above provision of Article 21(5)2 or 5 of the former unconstitutionality decision is not to be applied to the institution subject to suspension of payment based on the above unconstitutionality decision.
The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the retroactive effect of the decision of unconstitutionality as otherwise alleged in the ground of appeal.
In addition, the Supreme Court precedents pointed out in the ground of appeal are inappropriate to be invoked as they differ from this case.
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 Kim Ji-hyung
Justices Kang Jin-bok
Justices Shin Jae-chul et al.
Justices Yang Sung-tae