[1] In a case where the Constitutional Court, while making a decision of inconsistency with the Constitution, had the time limit for the improvement of the legislation, but no improvement was made after that time limit, whether the pertinent provision of the law becomes immediately null and void (affirmative)

[2] The scope of the effect of Constitutional Court's decision of unconstitutionality

[3] In a case where the factual basis of the disposition of inconsistency with the Constitution was established after the Constitutional Court rendered a ruling of inconsistency with the Constitution, the case holding that where a lawsuit seeking revocation of the disposition was pending before the court after the Constitutional Court rendered a ruling of inconsistency with the Constitution becomes final and conclusive, the effect of the legal provision becomes void due to the

[4] The meaning of "reasons for temporary absence from office" under Article 64 (1) 1 of the Public Officials Pension Act

[5] The case holding that where a public official in educational service was found guilty on the ground that he/she was engaged in a non-licensed medical practice, it does not constitute "when he/she was sentenced to imprisonment without prison labor or heavier punishment on the ground that he/she was in employment" under Article 64 (1)

[1] In a case where the Constitutional Court rendered a ruling of inconsistency with the Constitution and rendered a ruling of inconsistency with the Constitution, it is reasonable to deem that the Constitutional Court’s ruling of inconsistency with the Constitution contains a determination that the unconstitutional situation arising from the continued application of the existing law would not be justified even if considering the aspect of legal stability. Therefore, in a case where there is no legislation to improve the law after the lapse of the time limit prescribed by the ruling of inconsistency with the Constitution,

[2] Article 47 of the Constitutional Court Act provides the future effect of a decision of unconstitutionality because the law or provision of a law decided as unconstitutional loses its effect from the date of the decision of unconstitutionality, but considering the specific norm control in the decision of unconstitutionality, the effect of the decision of unconstitutionality does not apply to the case in which the Constitutional Court made a request for adjudication of unconstitutionality, or the case in which the Constitutional Court made a request for adjudication of unconstitutionality before the decision of unconstitutionality, or the case in which the court made a request for adjudication of unconstitutionality before the decision of unconstitutionality. However, the relevant law or provision of a law is a premise for the

[3] In a case where the factual basis of the disposition of inconsistency with the Constitution was established after the Constitutional Court rendered a decision of inconsistency with the Constitution, the Court held that the effect of the legal provision becomes invalid due to the decision of inconsistency with the Constitution is also a case in light of the scope of recognition of retroactive effect of the decision of inconsistency with the Constitution in a case where the lawsuit seeking revocation of the disposition was pending before the court

[4] In a case where Article 64(1)1 of the Public Officials Pension Act is interpreted to mean all crimes including crimes not related to the status or duties of a public official, it appears unconstitutional because it excessively limits property rights, which are fundamental rights of a public official, and discriminates against a public official without reasonable grounds. Therefore, the above "reasons during re-employment" is reasonable to reduce the scope of crimes related to the status of a public official or duties of a public official committed while in office.

[5] The case holding that where a public official in educational service is found guilty on the ground that he/she was engaged in an unlicensed medical practice as a business, it does not constitute "when he/she was sentenced to imprisonment without prison labor or heavier punishment on the ground that he/she was in office due to his/her status or duty," and thus, it does not constitute "a crime related to his

[1] Article 64 (1) 1 of the Public Officials Pension Act, Article 5 (1) 1 of the Enforcement Decree of the Public Officials Pension Act, Article 45 (2) of the Constitutional Court Act / [2] Article 47 of the Constitutional Court Act / [3] Article 47 of the Constitutional Court Act / [4] Article 64 (1) 1 of the Public Officials Pension Act / [5] Article 64 (1) 1 of the Public Officials Pension Act

[2] Supreme Court Decision 90Da8176 delivered on December 24, 1991 (Gong1992Sang, 640), Supreme Court Decision 91Nu1462 delivered on February 14, 1992 (Gong1992Sang, 1065), Supreme Court Decision 92Da12377 delivered on January 15, 1993 (Gong1993Sang, 698), Supreme Court Decision 94Da22309 delivered on September 27, 1994 (Gong194Ha, 2813)

Plaintiff (Law Firm Light High Law Office, Attorney regular training-based, Counsel for the plaintiff-appellant)

Public Official Pension Corporation

July 7, 2009

1. The Defendant’s disposition of reducing the amount of retirement benefits, etc. against the Plaintiff on February 26, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On March 1, 1982, the Plaintiff was appointed as a public official in educational service and was in office as a high school teacher. Despite the fact that it is not an oriental medical doctor, the Plaintiff engaged in the business of oriental medical treatment for profit after being informed to 60 patients during the period from October 2003 to June 2004, and being issued an amount equivalent to 500,000 won in return. The Plaintiff was indicted as a crime of violating the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Business Operator) and was sentenced to a suspended sentence of 2 years, a fine of 1,00,000 won in imprisonment for one year at the Gwangju District Court on December 21, 2007. The above judgment was finalized on December 29, 2007.

B. On December 29, 2007, the Plaintiff retired ipso facto from office, and on January 25, 2008, requested the Defendant to pay the lump-sum retirement pension and retirement allowance. On February 26, 2008, the Defendant issued the instant disposition to the Plaintiff on February 26, 2008, under Article 64(1)1 of the Public Officials Pension Act (hereinafter “instant legal provision”) and Article 55(1) of the Enforcement Decree of the Public Officials Pension Act, reducing one-half of the Plaintiff’s lump-sum retirement pension and retirement allowance, and the remaining lump-sum retirement pension amount is KRW 107,225,200, and KRW 36,143,320.

[Reasons for Recognition: Facts without dispute, Gap 1, 2, 3, 5 evidence, Eul 1, the purport of the whole pleadings]

2. The decision of inconsistency with the Constitution and legislative omission as to the legal provisions of this case

A. On March 29, 2007, the Constitutional Court rendered a ruling of inconsistency with the Constitution on the legal provisions of this case, and rendered a ruling of inconsistency with the Constitution on December 31, 2008 that the legal provisions of this case shall continue to exist and be applied provisionally until the legislator amends the Constitution (hereinafter “decision of inconsistency with the Constitution of this case”).

(1) The legal provision of this case limits the entitlement to benefits, which are property rights, in order to prevent crimes of public officials and to achieve the effectiveness of inducing public officials to faithfully work while in office. Reduction of retirement benefits, etc. to a person who is sentenced to imprisonment without prison labor or a heavier punishment due to a public official’s duties or an offense related to a public official’s status, is a considerable means to achieve the above legislative purpose. However, in a case of an offense not related to a public official’s status or duties, restriction of retirement benefits, etc. on a uniform and necessary basis does not constitute an appropriate means to achieve the above legislative purpose. This does not meet the requirements for minimum infringement of the legal interest and the requirements for balance of the legal interest, and is in violation of the Constitution because public officials contain a part that

(2) Therefore, in principle, the legal provision of this case should immediately lose its validity by making a decision of simple unconstitutionality. However, there may be various confusions and side effects if the legal provision of this case becomes void immediately due to the simple constitutional declaration of the annual budget and fund operation plan related to the public official pension, and the equity with other retired public officials who already been reduced by having been sentenced to imprisonment without prison labor or a heavier punishment due to a reason during which he/she is in office should be considered. Therefore, the legislators should not impose restrictions on retirement benefits, etc. when he/she was sentenced to imprisonment without prison labor or a heavier punishment due to a reason during which he/she is in office without asking the type and contents of the crime, and should not impose restrictions on retirement benefits, etc. only if there is reasonable and special need to restrict retirement benefits, etc., so that the law should be improved in the direction of constitutionality, and until that time, it is necessary to keep the unconstitutional

B. The National Assembly has not enacted the above decision of inconsistency with the Constitution until now.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

In light of the purport of the decision of inconsistency with the Constitution of the Republic of Korea, a sentence of one-year imprisonment with prison labor for a crime that is not entirely related to the Plaintiff’s status or duties shall not be deemed to constitute “when the Plaintiff was sentenced to imprisonment without prison labor or heavier punishment due to a cause during his/her stay of office.” Nevertheless, the instant disposition made against the Plaintiff on the premise that there is a cause for disposition prescribed by the legal provisions of this case is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) In a case where there is no improvement legislation until the time limit prescribed by the "Unexamined to Constitution" ruling, the validity of the relevant statutory provisions

In the event that a law violates the Constitution, the law shall be declared null and void in principle, and the law or the provisions of the law decided to be unconstitutional shall lose its effect from the date on which the decision of unconstitutionality is made: Provided, That the Constitutional Court makes a decision of unconstitutionality to exceptionally determine the time limit for the improvement of the law and order the provisional application of the provisions of the law until the time when there are special reasons, such as where the removal of the unconstitutional law due to a simple decision of unconstitutionality is likely to cause legal gaps or confusion, and where the unconstitutional state of the provisional application of the unconstitutional law is not regulated due to the decision of unconstitutionality and the state of the unconstitutionality which is not regulated by the decision

In a case where the Constitutional Court rendered a ruling of inconsistency with the Constitution for the foregoing reasons and rendered a ruling of inconsistency with the Constitution, it is reasonable to deem that, after the time limit, the unconstitutional situation arising from the continued application of the existing law is not justified even if considering the aspect of legal stability. Therefore, in a case where there is no legislation to improve the law after the time limit prescribed by the ruling of inconsistency with the Constitution, the relevant provision shall lose its effect immediately.

(2) The scope of cases subject to a decision of inconsistency with the Constitution ordering provisional application of unconstitutional law

In the event that the Constitutional Court has rendered a ruling of inconsistency with the Constitution, the Constitutional Court only declares the unconstitutionality of the relevant provision, and makes it possible to eliminate the unconstitutionality of the provision. Therefore, the legal status of the Constitutional Court in accordance with the ruling of inconsistency with the Constitution should be decided by the National Assembly as a matter of principle according to the contents of the amendment of the National Assembly.

The Constitutional Court's ruling of inconsistency with the Constitution is one of the unconstitutionality decisions prescribed in the main sentence of Article 45 and Article 47 (1) of the Constitutional Court Act. However, the exception to the main sentence of Article 47 (2) of the Constitutional Court Act that "any law or provision of law decided as unconstitutional becomes null and void from the date on which such decision is made," is only the time when the legal provision becomes null and void due to the decision of inconsistency with the Constitution for a certain period (see Supreme Court Decision 90Da5450, Jun. 11, 1991). Since the Constitutional Court's ruling of inconsistency with the Constitution was decided after the decision of inconsistency with the Constitution, the provisions of this case become null and void as of January 1, 2009, and such a legal provision of this case is equivalent to that of the Constitutional Court's ruling of inconsistency with the Constitution.

On the other hand, Article 47 of the Constitutional Court Act provides that the law or provisions of the law decided as unconstitutional shall lose its effect from the date on which the decision is made, and in principle, the future effect of the decision of unconstitutionality shall be guaranteed. However, considering the specific norm control in the decision of unconstitutionality, the effect of the decision of unconstitutionality shall not be applied to the case where the decision of unconstitutionality was made to the Constitutional Court, or where the decision of unconstitutionality was made to the court prior to the decision of unconstitutionality, and the case where the decision of unconstitutionality was made to the Constitutional Court, but the relevant law or provisions of the law shall not be applied to the case where the decision of unconstitutionality is pending in the court as the premise of the decision of unconstitutionality. However, in the case of this case, the cancellation of the disposition of this case by asserting the unconstitutionality of the provisions of the law of this case and the lawsuit was filed on March 4, 200 and continued in this court on January 1, 2009.

(3) Sub-determination

(A) The instant legal provision, which served as the basis for the instant disposition, lost its effect as of January 1, 2009 by the ruling of inconsistency with the Constitution, and as seen earlier, the instant legal provision becomes null and void as of January 1, 2009. As such, the instant legal provision becomes null and void, and thus, the Defendant’s instant disposition became unlawful as it was rendered without legal basis.

(B) Furthermore, in the instant case, ① the Plaintiff was sentenced to imprisonment without prison labor or heavier punishment due to a crime not related to the official duties or status as a public official, and even in such a case, restriction on retirement benefits, etc. seems to be unconstitutional. ② The decision of inconsistency with the Constitution of the Republic of Korea becomes effective after the decision of inconsistency with the Constitution of the Republic of Korea became final and conclusive. As such, deeming that a disposition against the purport of the inconsistency with the Constitution of the Republic of Korea may be made only on the ground that the administrative agency continues to have the effect of the pertinent provision on the case after the decision of inconsistency with the Constitution of the Republic of Korea becomes final and conclusive, should be deemed not to be permitted in light of the principle that administrative action should be made in accordance with the constitutional law. ③ Even if the Constitutional Court rendered a decision of inconsistency with the Constitution of the Republic of Korea to maintain the validity of the instant provision and make a provisional application until a certain time limit, it is reasonable to deem that the instant disposition is unlawful by applying the instant provision to the Plaintiff.

(C) Even if the ruling of inconsistency with the Constitution does not extend to the instant case, and as of the time of the instant disposition, the instant legal provision applies to the Plaintiff as it is, the instant disposition is unlawful in the following respect:

In the event there is a possibility of a variety of interpretation on the legal provisions of this case and the specific interpretation among them does not coincide with the Constitution, the legal provisions of this case cannot be interpreted as the specific interpretation and must be interpreted in conformity with the Constitution. In addition, the interpretation of the law in accordance with the Constitution may be expanded by the constitutional consistency as in the general interpretation of the law, as in the case of the general interpretation of the law, and on the contrary, the interpretation of

In the interpretation of the legal provision of this case, it seems unconstitutional because it excessively limits the property rights of public officials, which are fundamental rights of public officials, and discriminates against public officials without reasonable grounds, if it is interpreted to mean all crimes including crimes that are not related to the status of public officials or duties.

In other words, reducing retirement benefits, etc. to a person who has been sentenced to imprisonment without prison labor or a heavier punishment due to a crime related to a public official’s status or duties is a considerable means to achieve the legislative purpose of inducing a public official to perform his/her duties while in office. However, limiting retirement benefits, etc., including cases where a person has been sentenced to imprisonment without prison labor or a heavier punishment due to an offense unrelated to a public official’s status or duties, is difficult to be considered as a proper means to achieve the legislative purpose of preventing a public official’s occupational crime and inducing a public official to faithfully perform his/her duties while in office. Even in cases where fundamental rights are restricted for the realization of public interest, the basic rights of citizens should be respected among various means suitable for the achievement of the legislative purpose and the minimum method of infringing on fundamental rights should be selected. The restriction on the right to receive retirement benefits of public officials does not accord with the minimum infringement principle. Although public interest is intended to be achieved uniformly through restrictions on the status of a public official as a servant of the public service and the high level of duty for the fair performance of public service, it does not necessarily meet the principle of balance.

This case’s legal provision provides that retirement benefits shall be treated differently compared to employees under the National Pension Act in the case of retirement allowances, and the retirement allowances shall be treated differently compared to employees under the Labor Standards Act, and in the case of retirement allowances, the term “re-employment ground” means all crimes including crimes that are not related to the status or duties of public officials, even though considering the legislative purpose of inducing sincere service as a servant of the entire public officials, and the incidental nature of the public official pension system such as compensation for sincere service of public officials, it constitutes an excessive discrimination compared to the general public or workers, and it is ultimately a arbitrary discrimination because it is difficult to recognize reasonable grounds for such discrimination. Ultimately, the right to equality of public officials

In light of the unconstitutionality as seen earlier, it is reasonable to interpret the term “reasons while in office” to mean all crimes including crimes that are not related to the status or duties of a public official. In light of the unconstitutionality as seen earlier, it is reasonable to reduce the term “reasons while in office” to be crimes related to the status or duties of a public official committed while in office.

As acknowledged earlier, the facts charged by the Plaintiff, which were convicted, are that the Plaintiff engaged in a non-licensed medical practice and cannot be deemed as a crime related to the status of a public official or duties, and thus, in the case of the Plaintiff, does not constitute “when he was sentenced to imprisonment without prison labor or heavier punishment due to a reason while on duty.” The Defendant’s disposition that reported otherwise is unlawful.

(D) Therefore, the instant disposition was deemed to be a mother and unlawful.

3. Conclusion

The plaintiff's claim is justified and accepted.

Judges Lee Jin-man (Presiding Judge)