13.Denial of Wounded Veterans' Pension to Soldiers Who Becomes Disabled After Retirement

[22-1(B) KCCR 473, 2008Hun-Ba128, June 24, 2010]

In this case, the Constitutional Court decided that Article 23 Section 1 of the Military Pension Act, which does not specify on the benefit of wounded veterans' pension for "soldiers who were inflicted with injury and/or disease while on duty and consequently developed disability after retirement," is not in accord with the principle of equality because it discriminates against them without reasonable grounds. It discriminates the soldiers who developed disability after retirement against two types of people: (1) those who developed it before retirement (2) public officials who are entitled to disability benefits even if they develop disability after retirement. The Constitutional Court, therefore, has decided that the provision is incompatible with the Constitution.

Background of the Case

The complainant, who suffered from post-traumatic mental disorder due to harsh treatment of senior non-commissioned officers during his service in the Korean Marine Corps, filed a claim for wounded veterans' pension benefits to the the Minister of Defense as his symptoms turned worse after discharge in January 2003. When the claim was denied, however, he filed a lawsuit seeking cancellation of the order and, with the appeal pending, filed a motion to request a constitutional review of Article 23 Section 1 of the Military Pension Act (amended by Act No. 6327, Dec. 30, 2000, hereinafter the "instant provision"). Yet, as the motion was denied, he filed a constitutional complaint with the Constitutional Court.

Provisions at Issue

Military Pension Act (Amended by Act No. 6327, Dec. 30, 2000)

Article 23 (Wounded Veterans' Pension)

(1)Where a soldier retires disabled due to a disease or an injury incurred in the line of his public duties, the person shall be paid a wounded veterans' pension based upon the following classifications from the time of his retirement until he dies:

1.For the first-grade, an amount equivalent to 80 percent of his monthly remuneration;

2.For the second-grade, an amount equivalent to 75 percent of his monthly remuneration;

3.For the third-grade, an amount equivalent to 70 percent of his monthly remuneration;

4.For the fourth-grade, an amount equivalent to 65 percent of his monthly remuneration;

5.For the fifth-grade, an amount equivalent to 60 percent of his monthly remuneration;

6.For the sixth-grade, an amount equivalent to 55 percent of his monthly remuneration;

7.For the seventh-grade, an amount equivalent to 50 percent of his monthly remuneration.

Summary of the Decision

The Constitutional Court unanimously (except one separate opinion of a Justice) ruled that the instant provision is not compatible with the Constitution according to the following reasons:

1. Court Opinion

Defining the scope of soldiers injured while on duty who are entitled to the wounded veterans' pension as prescribed by the Military Pension Act and the pension beneficiary requirements is subject to full legislative discretion that should, in principle, be respected, but the legislature should abide by the constitutional principles such as the principle of equality in exercising its discretionary power.

The "soldiers subject to the Military Pension Act" and "public officials subject to the Public Officials Pension Act" may differ from

each other in the nature repective profession. However, because a) there is much in common in the legislative purpose of Acts and the structure and system of each pension, b) the changes in the structure of the public office and social paradigm which require social security benefits to cope with disasters and diseases occurring after retirement of public officials should be applied to military personnel as well as public officials, the two groups are not to be differentiated in terms of the need for social welfare or protection value. Although the two groups have no difference in nature, the instant provision does not stipulate that soldiers shall receive wounded veterans' pension benefits in case of disability after retirement due to a disease or an injury. By doing so, the instant provision discriminates against soldiers, contrary to public officials who are still beneficiaries of disability benefits even if the disability is developed after retirement.

Yet, such discrimination between soldiers and public officials cannot be justified in light of the following facts: a) The duty of soldiers is exposed to much more accidents and risks than that of other public officials, and and the need for a social security system that protects disabled soldiers is greater, b) Despite the fact that the public office system and the nation's financial health have changed significantly, the legislative neglection to adopt a provision to offer a wounded veteran's pension to "soldiers who developed disability after retirement" has continued for 47 years since the inception of the Military Pension Act. This inaction is considered to be in excess of the limit of legislative discretion, as no phased and (or) gradual legislation took place. c) it is difficult to judge that "soldiers who developed disability after retirement" are fully protected just because wounded veterans are entitled to compensations as prescribed by the Act on the Honorable Treatment and Support of Persons, Etc. of Distinguished Services to the State or because a considerable amount of veteran payments pursuant to the same Act are not deducted from pension benefits prescribed in the Military Pension Act.

In addition, the instant provision specifies that only "soldiers who developed disability before retirement" will be entitled to the wounded veterans' pension and thus discriminates against soldiers who faced

disability after retirement by excluding them from benefits, but a) it is not easy to detect diseases in an early stage and cure them due to the uniqueness of military service represented by the strict command system and disciplines or shortage of medical facilities, b) given that whether disability is confirmed before or after retirement can be determined by incidental circumstances such as distinct characteristics of diseases or the working environment. Therefore, such discrimination between those who had their disability confirmed before retirement and those who had after retirement is hardly reasonable.

For this reason, the instant provision violates Article 11 Section 1 of the Constitution that stipulates the principle of equality. However, since the immediate invalidation of the instant provision by a decision holding it unconstitutional may cause legal vacuum and side effects, and as the conditions and level of wounded veterans' pension benefits are ultimately determined by the legislature in consideration of the financial status and supply level of the military pension fund, as well as the economic condition, the instant provision will be ruled incompatible with the Constitution. Still, the provision at issue shall be ordered to be applied provisionally until an appropriate legislative measure takes place.

2. Separate Opinion of One Justice

It is against the Constitution to exclude soldiers who developed disability after retirement from those entitled to the wounded veterans' pension pursuant to the instant provision, but the unconstitutionality lies with the exclusion of those "who developed disability after retirement," not with the provision itself which stipulates that "Where a soldier retires disabled due to a disease or an injury incurred in the line of his public duties, the person shall be paid a wounded veterans' pension." Therefore, the decision of incompatibility should be limited to the legislative inaction of the instant provision: not having stipulated into law that "soldiers who developed disability after retirement due to a disease or an injury" shall be entitled to the wounded veterans' pension.