Pension Payments Reduction for Public Employees due to Crimes They Committed

[19-1 KCCR 211, 2005 Hun-Ba 33, Mar. 29, 2007]

Held, Article 64 Section 1 of the Act on Pensions for Public Service Personnel, providing that the former and incumbent public service personnels who are sentenced to imprisonment without prison labor or heavier punishment due to crimes committed during their active service, would get reduced retiring pension and allowance, is not in conformity with the Constitution.

Background of the Case

Article 64 Section 1 Paragraph 1 of the Act on Pensions for Public Service Personnel (hereinafter referred to as "the Statutory Provision at Issue") provides that the former and incumbent public service personnels who are sentenced to imprisonment without prison labor or heavier punishment due to crimes related to their employment, would get reduced retiring pension and allowance (hereinafter referred to as "pension"). The complainant, a local public service employee, caused a car accident killing a person while he was drunk-driving. He was sentenced to 10-month-imprisonment as well as for 2-year-probation. On the same day the ruling became final, he voluntarily terminated his employment pursuant to the Local Public Officials Act. The complainant requested pension by contacting the Government Employees Pension Service. But the Pension Service provided him with reduced pension pursuant to the Statutory Provision at Issue. On, April 19, 2005 the complainant, claiming that the Statutory Provision at Issue is unconstitutional because it violated his property right and the principle of equality, requested the Constitutional Court to review the constitutionality of the Statutory Provision at Issue.

Summary of the Opinions

The Constitutional Court has held, in a six-to-three decision, that the Statutory Provision at Issue is unconstitutional. The summary of the grounds for the Court's decision is stated in the following paragraphs.

1. Summary of the Majority Opinion

A. Opinion of Five Justices

(1)Providing the convicted public employees with reduced pension where the crimes convicted are not related to their employment and those of negligence is not a proper means to serve a legitimate purpose as it is for preventing public service personnel's crime, and motivating public service personnels to serve diligently. Rather, this infringes the property right as the Least Restrictive Means Rule and Balancing Competing Interests Rule are violated by giving severely harsh disadvantage to the public employees.

(2)Providing the convicted public employees with reduced pension where the crimes were committed during their active service is discriminatory treatment without reasonable ground (1) with regards to retiring pension because it discriminates in favor of workplace subscribers under the National Pension Act, and (2) with regards to retiring allowance because it discriminates in favor of workers under the Labor Standards Act, thereby violating the Principle of Equality.

(3)The Legislators should revise the Statutory Provision at Issue toward a constitutional way by restricting the reasons of awarding reduced pension in which there is reasonable and especial need to take such actions. Also, it is necessary that the Statutory Provision at Issue shall continue to apply on a temporary basis. We hereby issue a decision of nonconformity to the Constitution, to the effect that the legislators shall be obligated to affirmatively complement the current system by at the latest December 31, 2008 therefore fixing the unconstitutional situation of the Statutory Provision at Issue.

B. Opinion of One Justice

Among "the crimes committed during their active service" which were provided in the Statutory Provision at Issue, the part of "crimes not being related with a public employee's status or duty" is unconstitutional. Also,

the part of "crimes being related with a public employee's status or duty" is not in conformity with the Constitution as being a mixture between constitutional and unconstitutional portions, thereby making the distinction between the two impossible.

C. Conclusion

Since one Justice expressed an opinion of simple unconstitutionality in part and nonconformity in part and there are five justices expressing the opinion of nonconformity in whole, the numbers of justices constitute the required passing votes for unconstitutionality decision. We hereby issue a decision of nonconformity to the Constitution on the Statutory Provision at Issue.

2. Summary of the Dissenting Opinion of Three Justices

A.The legislators are endowed with certain degree of discretion in firstly 'forming' the property right for social security, and the legislation based on the discretion does not violate the property right as long as the discretion is being exercised within the boundary of endowed legislative discretion. The Statutory Provision at Issue in this case providing reduced pension due to the crimes the public employee committed has reasonable grounds for such measures and it is within the boundary of legislative discretion. Also, even if the balancing principle necessary for the restriction of fundamental rights is strictly construed, the Statutory Provision at Issue has all the aspects of justifiable restriction of fundamental rights.

B.There is a fundamental difference between the pension at issue here and a national pension or a retirement allowance provided by laws. Also, given that the reduction pursuant to the Statutory Provision at Issue has legislative purposes of encouraging public service employees to pay attention to their legal obligations for observation of rules, considering the obligations for observation of rules and devotion for service as an assesment criterion in forming pension system for the public employees, has reasonable grounds.

3. Summary of the Separate Concurring Opinion of One Justice

Pension for the public service employees is a kind of social insurance and one of the minimum social safety net to guarantee a life worthy of human beings for the retired public service employee. Therefore, it is unjust and improper to put any restrictions on the pension payments according to whether or not the crime is related to his or her duties or whether being intentional crime or negligent crime. Merely, the restriction would be allowed only when there is a compelling policy demand justifying the restriction on the retired public service employees' right to a life worthy of human being.