Where a public official is subject to a legitimate order of duties from his/her superior, but was sentenced to imprisonment without labor or heavier punishment by negligence in performing his/her duties at his/her own discretion, whether it can be viewed as “where he/she was negligent in performing duties while complying with his/her superior’s legitimate order of duties, such as retirement benefits,” and standards for determining whether

Article 64(1)1 of the Public Officials Pension Act provides that, in principle, retirement benefits, etc. shall be reduced in cases where a person is sentenced to imprisonment without prison labor or heavier punishment due to negligence related to his/her duties, but exceptionally, “where the relevant public official is subject to lawful orders of his/her superior, due to negligence,” the relevant public official shall not be reduced. However, even if the pertinent public official is subject to legitimate orders of his/her superior from his/her superior due to lack of concrete details of the orders, and thus, he/she shall not be deemed to have caused negligence when he/she is sentenced to imprisonment without prison labor or heavier punishment due to negligence in performing his/her duties in accordance with the orders of his/her superior due to lack of possibility of criticism about negligence. Accordingly, the relevant public official’s status, details of the orders issued by his/her superior, details of the relevant public official’s actual duties, and details of the relevant public official’s negligence.

Article 64 (1) 1 of the Public Officials Pension Act

Plaintiff 1 and one other (Law Firm Havi case et al., Counsel for the plaintiff-appellant)

Public Official Pension Corporation (Law Firm Barun, Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu13462 decided October 13, 2011

The part of the judgment of the court below regarding the payment limitation disposition against the plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. All remaining appeals are dismissed.

1. We examine ex officio the redemption disposition of retirement benefits.

The Constitutional Court rendered that the proviso to Article 1 of the Addenda to the Public Officials Pension Act (amended by Act No. 9905, Dec. 31, 2009) (hereinafter “instant supplementary provision”) on August 29, 2013 (see, e.g., Constitutional Court en banc Order 2010Hun-Ba354, Aug. 29, 2013) violated the Constitution on the ground that property rights are infringed against the principle of prohibition of retroactive legislation (see, e.g., Constitutional Court en banc Order 20

According to the reasoning of the lower judgment and the record, the Defendant rendered a disposition to recover the amount equivalent to 1/2 of retirement benefits paid to the Plaintiffs in 2009 pursuant to the supplementary provision of this case, and the instant lawsuit seeking revocation of the restitution disposition can be seen to have been pending before the Constitutional Court’s decision of unconstitutionality is based on the premise of judgment, and thus, the effect of the Constitutional Court’s decision of unconstitutionality extends to this case. Accordingly, the instant restitution disposition that applied the supplementary provision of this case, which became null and void as the decision of unconstitutionality, shall be revoked as it is unlawful.

Unlike the above decision of the Constitutional Court, the court below judged that the supplementary clause of this case does not violate the Constitution, but concluded that the recovery disposition of this case was unlawful, and thus, the decision of the court below on this part is justified.

2. We examine the grounds of appeal as to the benefit restriction disposition.

A. Article 64(1)1 of the Public Officials Pension Act (amended by Act No. 9905 of Dec. 31, 2009) provides that, “Where a present or former public official is sentenced to imprisonment without prison labor or heavier punishment due to a reason that he/she is in office (except where it is due to negligence unrelated to his/her duties and due to negligence in complying with legitimate orders of his/her superior)”, part of his/her retirement benefits and retirement allowances shall be reduced and paid.

In principle, where a person is sentenced to imprisonment without prison labor or heavier punishment due to negligence related to his/her duties, the above provision is to reduce his/her retirement benefits, etc., but exceptionally, “where he/she is due to negligence while complying with his/her legitimate orders of his/her superior” (hereinafter “the ground for exception of this case”) is less likely to criticize the relevant public official.

However, even if the pertinent public official received a lawful order from his/her superior, if he/she is sentenced to imprisonment without labor or heavier punishment by negligence in performing his/her duties, since the content of the order is not specific, it shall not be deemed that the public official's status, the content of the order issued by the relevant public official, the content of the order actually performed by the relevant public official, and the content of the negligence of the relevant public official, etc. should be determined by taking into account the status of the relevant public official, the degree of criticism against negligence, as the public official's negligence in performing his/her duties.

B. According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

① The Plaintiff 1, as the director general of the ○○○○○○○○ at which a resident city held the instant festival, directed and supervised the establishment of a master plan for festivals, the contract for the selection of an event agency, the safety measures, etc. for the facilities security of the event site while taking charge of external cooperation coordination as a member for the promotion of the instant festival, and the Plaintiff 2 was the director general of the △△△△△△△△△△△ branch at the time of the stay of the promotion committee

② The non-party 1, his superior, ordered the Plaintiffs to implement a cultural broadcasting virtual video recording event at the instant festival event, and did not issue specific orders on safety issues of the said public video recording event. The Plaintiffs independently promoted most of their duties at their own discretion.

③ According to a criminal judgment where imprisonment without prison labor or heavier punishment against the Plaintiffs became final and conclusive, with respect to the Plaintiffs 1, negligence on the part of an agent for the festival of this case, negligence on the part of the agent for the safety management of the event site, negligence on the part of the agent for the safety management of the event site, negligence on the part of the agent for the safety management of the event site, and negligence on the part of the agent for the safety management and maintenance of order on the day of the accident, and negligence on the part of the agent for the safety management and maintenance of order, and negligence on the part of the Plaintiff 2, except for negligence on the part of the agent for the instant festival,

④ In particular, in the case of Plaintiff 1, in order to ensure that Nonparty 2, the representative of Nonparty 1, who has a close relationship with himself/herself and is in a permanent market, participates in the selection of the agency as an agent for the adjustment of external cooperation and to select the agency as an agent, Nonparty 2 already determined the agency as an internally East Cultural Broadcasting. However, Nonparty 2, the representative of Nonparty 2, issued an unfair instruction to give positive consideration to Nonparty 3 and Nonparty 4, the subordinate staff of Nonparty 2, who was negative in the negative position on the proposal for the event of the agency, to select the said agency as an agent, thereby allowing the said agency to be selected as an agent.

C. In full view of these circumstances, namely, the status of the plaintiffs, the content of the order issued by Nonparty 1, his superior, the content of the plaintiffs' actual duties, and the negligence of the plaintiffs, it is reasonable to deem that the plaintiffs are not subject to the exception of this case in light of the legal principles as seen earlier, since the scope of discretion of the plaintiffs is large in carrying out the work of open and video recording of this case, and the negligence was committed while carrying out the work according to their discretion, and there is no possibility of criticism for the negligence.

D. Nevertheless, the lower court determined that the exception of this case applies to the Plaintiffs on the grounds indicated in its reasoning, and that this part of the benefit restriction disposition is unlawful. In so doing, it erred by misapprehending the legal doctrine on the interpretation of the exception of this case.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the payment restriction disposition against the plaintiffs is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)