[1] In a case where the amended law, which serves as the basis for an administrative disposition, provides for the legal effect that is more unfavorable than the previous one in relation to the property rights of the people by applying the existing facts or legal relations that have not been completed or terminated before the enforcement thereof, whether the amended law is an infringement of property rights by retroactive legislation (negative in principle), and the scope of application of the principle of

[2] Requirements and contents for establishment of entitlement to retirement pension under the Public Officials Pension Act

[3] In a case where the Public Officials Pension Service, while serving as a public official, was sentenced to a suspended sentence of imprisonment due to a crime committed while in office, and became final and conclusive, following the Constitutional Court's decision of inconsistency with the Constitution, and the Constitutional Court again rendered a decision of unconstitutionality as to the enforcement date of the amended Public Officials Pension Act and the supplementary provisions on transitional measures, the case holding that the above disposition is not a matter of infringement of property rights under retroactive legislation and there is no room to limit the application of the amended Public Officials Pension Act to protect Gap's trust

[1] In principle, an administrative disposition is based on the statutes that were enforced at the time of the disposition, unless otherwise specified in the transitional provision. Even in cases where the amended Act provides for a more unfavorable legal effect with respect to the property rights of the people with regard to the existing facts or legal relations subject to the application of the amended Act, if such facts or legal relations are not completed or terminated before the amended Act enters into force, the application of the amended Act cannot be deemed as a violation of property rights by retroactive legislation prohibited under the Constitution. However, in cases where the people’s trust in the existence of the statute prior to the amendment is recognized as more protected than the public interest demand for the application of the amended Act, the application may be limited to protect the people’s trust.

The principle of law non-payment doctrine is merely a meaning that the law cannot be applied to the facts completed before the entry into force of the law, and it does not limit the application of the law to the facts that continue to exist after the entry into force of the law.

[2] The right to receive a retirement pension under the Public Officials Pension Act is established upon the occurrence of the grounds for retirement, which is the basis of the right to receive a retirement pension. However, the content is not satisfied by the act of one-time performance of the person liable for payment, but is continuously aimed at continuous performance of the due period.

[3] In a case where the Public Officials Pension Service, while serving as a public official, was sentenced to a suspended sentence of imprisonment due to a crime committed while in office and became final and conclusive after the voluntary retirement, and the Constitutional Court again rendered a decision of unconstitutionality as to the supplementary provision on the enforcement date and transitional measures of the new law, the case holding that the court below erred in the misapprehension of legal principles as to the new payment of retirement pension Act, since the above disposition is merely a modification of the right to receive retirement pension which comes due without changing the contents of the right to receive retirement pension which comes due, and thus, it cannot be seen as a violation of property right by retroactive legislation since the new law cannot be seen as being retroactively applied to the past and the new law cannot be seen as being enacted after the amendment of the new law, since there is no reasonable and reasonable trust that the restriction on payment of retirement pension benefits will continue to arrive after the amendment of the new law, and thus, there is no ground to limit the new payment of retirement pension Act before the enforcement of the new law.

[1] Article 13 (2) of the Constitution / [2] Article 46 of the Public Officials Pension Act / [3] Article 64 (1) 1 of the former Public Officials Pension Act (amended by Act No. 9905 of Dec. 31, 2009), Articles 46 and 64 (1) 1 of the Public Officials Pension Act, Articles 1 and 7 (1) of the Addenda (amended by Act No. 9905 of Dec. 31, 2009)

Plaintiff (Attorney Kim Jin-young, Counsel for the plaintiff-appellant)

Public Official Pension Corporation (Law Firm Apex, Attorneys Kim Dong-le et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu5157 decided November 22, 2013

The part of the judgment of the court below on the disposition of restricting benefits is reversed, and that part of the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In principle, an administrative disposition is based on the statutes that were enforced at the time of the disposition, unless otherwise specified in the transitional provision. Even in cases where the amended Act and subordinate statutes provide more unfavorable legal effects in relation to the property rights of the people with respect to the existing facts or legal relations subject to the application of the amended Act, if such facts or legal relations are not completed or terminated before the enforcement of the amended Act, the application of the amended Act and subordinate statutes cannot be deemed as a violation of property rights by retroactive legislation prohibited under the Constitution. However, in cases where the citizen’s trust in the existence of the statutes before the amendment is recognized to have more protected than the public interest demand for the application of the amended Act and subordinate statutes, there is room to place restrictions on the application of the amended Act and subordinate statutes to protect the people’s trust (see Supreme Court Decision 2009Du7639, Nov. 15, 2012). The principle of no law and subordinate statutes is not applicable to the requirements completed before the enforcement of the said Act and it does not limit the application of the relevant statutes to the facts that occurred after the amendment.

On the other hand, the right to receive retirement pension under the Public Officials Pension Act is established upon the occurrence of the grounds for retirement, which is the basis of the retirement pension, but its contents are not satisfied by the act of one-time performance of the person liable for payment, but the continuous performance of which is due for a certain period of time.

2. According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s new retirement pension provision No. 1 was unconstitutional on April 30, 209, and that the Defendant’s new retirement pension provision No. 2 was unconstitutional on August 11, 2009, and that the Plaintiff’s new retirement pension provision No. 2 was unconstitutional on the ground that the Plaintiff’s new retirement pension provision No. 1 was unconstitutional on the grounds that it was 10 years before and after the 10th anniversary of the previous retirement pension provision, and that the new retirement pension provision No. 2 was unconstitutional on the ground that the Plaintiff’s new retirement pension provision No. 9 was unconstitutional on the grounds that it was 10 months after the 10th new retirement pension provision was unconstitutional on the ground that the former 10th new retirement pension provision was unconstitutional on the ground that the former 10th new retirement pension provision was unconstitutional on the ground that the former 10th new retirement pension provision was unconstitutional on the ground that it was 10.

However, examining the records in light of the above legal principles, it is difficult to accept the judgment of the court below as it is.

Although the instant benefits restriction disposition against the Plaintiff is subject to the retirement pension entitlement after the grounds for receiving retirement pension benefits have already arisen, unlike the instant retirement pension refund disposition, it is merely a modification of the content of the retirement pension entitlement that came into force after the new law became effective without changing the content of the retirement pension entitlement that came into force after the new law became effective, that is, a legal relationship after the new law became effective, that is, a change of the content of the retirement pension entitlement that comes into force after the new law became effective, and thus, it is not a new evaluation of the past by applying a new law retroactively to the past facts or legal relations that have already been completed or terminated, and thus, the infringement

In addition, according to the above decision of inconsistency with the Constitution as to Article 64 (1) 1 of the former Act, it can be sufficiently anticipated that the legislation should be implemented in accordance with the purpose of the decision. Thus, since the National Assembly's delay in legislation has caused a temporary gap in the legislation, it is difficult to limit the application of the new law to protect the plaintiff's trust because the plaintiff's trust is not reasonable and justifiable since it is difficult to view that there is no benefit restriction on the retirement pension right that comes after the due date after the amendment was made.

Nevertheless, the lower court determined that with respect to the entitlement to retirement pension which had occurred before the enforcement of the new Act, the payment cannot be restricted even to the benefits that come due after the enforcement of the new Act, and that the instant benefit restriction disposition that the retirement pension was to be paid by reducing the retirement pension from January 2010 after the enforcement date of the new Act was unlawful. In so determining, the lower court erred by misapprehending the legal doctrine on the legal inden payment and the due date for the payment of retirement pension under the Public Officials Pension Act, thereby adversely affecting the conclusion

3. Conclusion

The part of the judgment of the court below regarding the disposition on the restriction of benefits is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Sang-hoon (Presiding Justice)