205Hunma102 Verification of unconstitutionality, such as deprivation of opportunity to choose a retirement pension

○ Civils

The appeal of this case is dismissed.

1. Case summary and the object of the trial;

A. Case summary

(1) On November 18, 1980, the applicant is appointed as a public official belonging to the Busan Regional Railroad Office and serves as a member of the Council on October 20, 1987, and is appointed as a local public official of Busan Metropolitan City on January 12, 1991, and currently has served as a local health assistant at a public health clinic of the head of Busan Metropolitan City, a military health clinic.

(2) The claimant filed a petition for adjudication on the constitutional complaint of the instant case stating that “The deprivation of an opportunity to choose a retirement pension under Article 46(1) of the Public Officials Pension Act against a person who is unable to add up the period of office pursuant to Article 23(2) of the same Act, and the deprivation of the right to voluntary retirement under Article 66-2(1) of the Local Public Officials Act for the same reason is unconstitutional since the omission neglected violates the Constitution, despite being contrary to the Constitution, violates the right to equality before the

(b) the subject matter of the trial and relevant provisions;

Considering the purport of the instant claim and the reasons for the instant claim, the claimant ultimately points out the unconstitutionality of Article 24(1) of the Public Officials Pension Act that limits the period of application for adding up the period of service within two years. This is because if the said provision is unconstitutional within two years, the claimant can apply for adding up the period of service at any time, so that the claimant can receive retirement pension under Article 46(1) of the Public Officials Pension Act and voluntary retirement under Article 66-2(1) of the Local Public Officials Pension Act.

Therefore, the subject of the instant case is whether the basic rights of the claimant have been infringed due to Article 24(1) of the Public Officials Pension Act (amended by Act No. 5117, Dec. 29, 1995) and the contents of the provisions and relevant provisions are as follows.

(1) The object of the trial

(1) A person who intends to obtain the aggregation of the period of service or the period of service under Article 23 (2) of the Public Officials Pension Act shall submit to the Corporation an application for aggregation of the period of service through the head of the agency to which he belongs, within two years from the date of appointment

(2) Relevant provisions

Article 23 (Calculation of Period of Office) (1) of the Public Officials Pension Act shall be based on the number of months from the month in which the public official is appointed to a public official to the month in which the day preceding the date of his/her retirement or the date of his/her death falls.

Article 46 (Retirement Pension or Retirement Pension) (1) of the Public Officials Pension Act (1) When a public official has served for not less than 20 years and retires, a retirement pension shall be paid from the time falling under any of the following subparagraphs to the time of his/her death:

(3) Where a public official retires from office after reaching the relevant retirement age or the upper age limit for public officials similar to those prescribed by the Acts and subordinate statutes related to the appointment of public officials, etc., due to the abolition or abolition of the organization and number of personnel, reduction of budget, etc.; 4. When he retires from office due to the condition of disability prescribed by the Presidential Decree; 2. Notwithstanding the provisions of paragraph (1), where he/she has been in office for not less than 20 years and has retired without attaining the age under the provisions of subparagraphs 1 and 2, the amount equivalent to the retirement pension or the lump sum of retirement pension deduction for not more than 2 years and not more than 30 years in lieu of such age (hereinafter referred to as "age limit for public officials"): Where he/she wishes to receive the retirement pension for not more than 10 years and not more than 4/100 of retirement pension for not more than 2 years and not more than 30 years in shortage of 1/100 of retirement pension:

Article 23(2) of the Addenda to the Public Officials Pension Act (Amended by Act No. 5117, Dec. 29, 1995); Article 5 (Transitional Measures concerning Aggregation of Periods of Office)

Notwithstanding the amended provisions of Article 24(1), any person falling under any of the above subparagraphs (including those who may be added up to the former tenure of office under Article 24(5) and (6)) may apply for an aggregate of the tenure of office not later than December 31, 1997.

Article 66-2 (Voluntary Retirement, etc.) (1) Where any public official who has served for at least 20 years before his/her retirement age retires voluntarily before his/her retirement age, honorary retirement allowances may be paid within budget.

Article 20 (Special Leave) (7) of the Regulations on the Service of State Public Officials (Special Leave) The head of an administrative agency shall permit a long-term leave of absence for ten days during the period of service to a public official who has served for not less than 20 years. In such cases, the calculation of the period of

2. The claimant's assertion;

Article 23 (2) of the Public Officials Pension Act provides that if a public official again acquires the status of a public official after his/her retirement, the period of service in the past may be added up, and Article 24 (1) of the Public Officials Pension Act limits the period of addition to the period within two years from the

Where the tenure of office is at least 20 years, a public official who has applied for adding up the tenure of office may choose a retirement pension or lump-sum retirement pension pursuant to Article 46 of the Public Officials Pension Act, and where he voluntarily retires before the retirement age, he/she may receive an honorary retirement pension pursuant to Article 66-2 (1) of the Local Public Officials Act.

The public official pension system is a social security system that guarantees the aging of the State and local governments for at least 20 years, and it does not conform to the purpose of the Public Officials Pension Act to prevent the public officials who have contributed to the State and society from making a choice of retirement pension or voluntary retirement on the ground that they did not apply for adding up the period of service within two years only to the public officials who have re-registered their status.

This does not provide an opportunity to choose a retirement pension to those who do not add the service period.

It is against the principle of equality as it excessively discriminates against those who add up the service period.

In addition, according to Article 20 (7) of the Public Officials Service Regulations, a person who has served as a public official for not less than 20 years provides a ten-day long-term leave regardless of the total sum of the pensions, but the Public Officials Pension Act otherwise discriminates by making it possible to choose a retirement pension or to provide voluntary retirement according to the total sum of the periods of service.

3. Review of lawful requirements;

A. General theory

The adjudication on constitutional complaint under Article 68(1) of the Constitutional Court Act shall be requested within 90 days after the existence of the cause is known, and within one year after the cause occurs (main sentence of Article 69(1) of the Constitutional Court Act). A constitutional complaint against statutes shall be requested within 90 days after the enforcement of statutes, and within one year after the enforcement date of the statutes, where the infringement on fundamental rights is made at the same time.

B. Determination

The claimant asserts that the clause of the object to be judged infringes on the basic rights of the claimant by limiting the period of application for adding up the tenure of office to two years.

However, the above provision was enforced from January 1, 1996 (Article 1 of the Addenda to the Public Officials Pension Act amended by Act No. 5117 of Dec. 29, 1995), and the claimant was appointed as a public official belonging to the Busan Regional Railroad Administration on Nov. 18, 1980 and served as the petitioner, and was dismissed from office on Oct. 20, 1987 and appointed as a local public official again for Busan Metropolitan City on Jan. 12, 1991. Thus, there is a reason for infringement of fundamental rights on Jan. 1, 1996, the enforcement date of the above provision.

It should be viewed that it had been.

Therefore, even though the claimant should have claimed an adjudication on constitutional complaint on the above provision within one year from the date on which the ground for infringement of fundamental rights occurred, the petition for adjudication in this case was filed on January 26, 2005, and thus, is unlawful.

3. Conclusion

Therefore, the instant appeal is unlawful, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

February 15, 2005

Competence of the presiding judge

Justices Song Jin-in-Law

Senior Justice;