Whether a person who intends to receive retirement allowances, etc. under the former Public Officials Pension Act may immediately seek payment of benefits through a party lawsuit against the Public Officials Pension Corporation, etc. in a state that no specific right is recognized by filing an appeal lawsuit against the Public Officials Pension Corporation, etc. (negative)

In full view of the provisions of Articles 26(1) and (3), and 83(1) of the former Public Officials Pension Act (amended by Act No. 8852 of Feb. 29, 2008), and Article 19-3 of the former Enforcement Decree of the Public Officials Pension Act (amended by Presidential Decree No. 20741 of Feb. 29, 2008), the right to receive retirement allowances, etc. under the Public Officials Pension Act does not directly arise under the provisions of Acts and subordinate statutes, but the right to receive retirement allowances, etc. under the former Public Officials Pension Act does not arise upon application by the head of the agency to which the person who wishes to receive the same benefits belongs after obtaining confirmation from the head of the agency to which he/she belongs. The meaning of the decision on the payment of benefits to which the Public Officials Pension Corporation intends to receive the former Public Officials Pension Act includes not merely confirming and determining the recipient of benefits, but also identifying and determining the specific amount of benefits. Accordingly, a person who intends to receive the former Public Officials Pension Act should immediately allow the payment of benefits as a party litigation.

Articles 26(1) and (3) and 83(1) of the former Public Officials Pension Act (amended by Act No. 8852 of Feb. 29, 2008); Article 19-3 of the former Enforcement Decree of the Public Officials Pension Act (amended by Presidential Decree No. 20741 of Feb. 29, 2008)

Supreme Court Decision 93Nu18532 delivered on September 15, 1995 (Gong1995Ha, 3413) Supreme Court Decision 96Nu6417 delivered on December 6, 1996 (Gong197Sang, 224)

Plaintiff

The Government Employees Pension Service

Seoul High Court Decision 2007Nu25871 decided March 27, 2008

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In full view of the provisions of Articles 26(1) and (3), and 83(1) of the former Public Officials Pension Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same shall apply), and Article 19-3 of the former Enforcement Decree of the Public Officials Pension Act (amended by Presidential Decree No. 20741, Feb. 29, 2008; hereinafter the same shall apply), the rights to receive retirement allowances, etc. under the former Public Officials Pension Act do not directly arise under the provisions of Acts and subordinate statutes, but upon application by the head of the agency to which a person who wishes to receive the same benefits belongs, the Corporation (hereinafter referred to as the “Corporation”) determines the payment of benefits. The meaning of the decision on the payment of benefits to which the Corporation intends to determine is not merely confirming and determining the recipients of benefits, but also it also includes confirming and determining the specific amount of benefits to which the Corporation is entitled to receive benefits under the former Public Officials Pension Act and Article 19-3 of the former Enforcement Decree.

In this regard, the court below is just in holding that the money for which the plaintiff (designated parties, hereinafter referred to as "the plaintiff") and the designated parties (excluding the designated parties 6) sought payment is over the retirement allowances for which a decision is made pursuant to the law, and there was no specific right due to the lack of a decision made by the Corporation, and that the money for which the designated parties 6 seek payment did not have any specific right as to the retirement allowances since there was no decision made by the Corporation for the payment of the retirement allowances. Thus, the court below did not allow the party litigation in this case on the ground that there was no specific right as to the payment.

Supreme Court Decisions 2002Du3522 Decided September 5, 2003, 2003; 2003Du15195 Decided December 24, 2004, etc. cited by the Plaintiff, are related to the case where the amount of benefits is changed directly due to the amendment of the relevant Acts and subordinate statutes while receiving a retirement pension, etc. upon the recognition of an administrative agency, and the case is different from the case of this case, and therefore, it is inappropriate to be invoked in this case.

2. As to the grounds of appeal Nos. 2 and 3

The gist of this part of the grounds of appeal is as follows: (a) the lower court rejected the Plaintiff’s argument that the amount of the retirement allowance should be calculated in accordance with the above statutes pursuant to Article 61-2(2) of the former Public Officials Pension Act, Article 52-3 of the former Enforcement Decree of the Public Officials Pension Act, and Article 52-3 of the former Enforcement Decree of the Public Officials Pension Act; and (b) thereby misapprehending the legal principles

However, the above argument is based on the premise that the lawsuit of this case is lawful, and thus, does not constitute a legitimate ground of appeal as to the judgment below which judged that the lawsuit of this case is unlawful (see, e.g., Supreme Court Decision 95Nu13098, Apr. 9, 196).

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 Shin Young-chul (Presiding Justice)