(영문) 서울고등법원 2016.11.3. 선고 2016누560 판결

The defendant filed a lawsuit with the plaintiff that "the plaintiff shall pay 5% per annum from March 1, 2010 to the delivery date of a copy of the written application for modification of the lawsuit in this case, and 15% per annum from the next day to the day of complete payment (the plaintiff shall be revoked by the Director of the Court Administration's Office's rejection of payment of the judge's voluntary retirement allowances against the plaintiff," but the lawsuit that "the plaintiff shall be revoked by the Director of the Court Administration's Office's refusal of payment of the judge's voluntary retirement allowances against the plaintiff" was changed in exchange for the above lawsuit at the trial after remand).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Basic facts

A. The Plaintiff passed the 30th judicial examination in March 1988, and was appointed as a judicial trainee on or around March 1989, and completed the Judicial Research and Training Institute on March 1, 1991 following the two-year training period, and was appointed as a judge on or around February 1, 1991, and submitted to the Defendant on or around February 28, 2010, and filed an application for the application for the payment of honorary retirement allowances while submitting the honorary retirement center to the Defendant. On February 28, 2010, the Plaintiff was the Plaintiff’s age was 51 years ( February 28, 2011) and was 1 year until the expiration date of the period (the Plaintiff was reappointed once while in office, and the continuous service period under the Public Officials Pension Act, including the active service period, came to 24 years).

B. Meanwhile, Article 74-2(1) of the former State Public Officials Act (amended by Act No. 11489, Oct. 22, 2012; hereinafter “State Public Officials Act”) provides that a person who has served for not less than 20 years as a public official may receive an honorary retirement allowance within budgetary limits if he/she voluntarily retires before his/her retirement age. Article 3(4) of the former Rules on Payment, such as the scope and amount of payment of honorary retirement allowances, and the procedure for payment, of voluntary retirement allowances, etc. (amended by Act No. 2320, Jan. 31, 201; hereinafter “Rules on Voluntary Retirement Allowances”) provides that a person eligible to receive an honorary retirement allowance shall be a judge (excluding a judge higher than the chief judge of high court or a judge higher than the chief judge, and a person who has served as a public official in technical service for not less than 20 years, who has voluntarily retired before his/her retirement age for more than one year before his/her retirement age expires.

C. Regarding the Plaintiff’s application for the payment of honorary retirement allowances, the Defendant paid to the Plaintiff KRW 20,703,60 [20,00 x 12 months x 5] of honorary retirement allowances calculated by setting the remainder of retirement age to one year, the remainder of the remaining term of office according to the calculation method [the number of months remaining after the X retirement age of a half of the monthly salary (the amount of salary in salary table)] under Articles 3(1) and (5) and 4 [Attachment 1] of the Rules on the Calculation of the Payment of honorary retirement allowances to the Plaintiff.

【Ground for recognition】 The fact that there is no dispute, Gap's evidence No. 1, and the purport of the whole pleading

2. The parties' assertion

A. The plaintiff's assertion

Since the main text of the instant provision is null and void for the following reasons, it is unlawful for the Defendant to pay only the honorary retirement allowances (153,360,000 won) calculated by setting the remainder of the Plaintiff’s retirement age as one year, based on the above provision, to the Plaintiff. Therefore, the Defendant is obliged to pay to the Plaintiff the difference between the honorary retirement allowances (153,360,000 won) calculated by setting the remainder of the Plaintiff’s retirement age to seven years, and the honorary retirement allowances (20,703,60 won) already paid (132,

1) In relation to the calculation of the amount of honorary retirement allowances, the main text of the instant provision replaces the “period of retirement age” with the “date of expiration of the term of office in the calculation of the “period of retirement age” in the case of a judge. However, in order to secure the independence of judicial power through the guarantee of a judge’s status, Article 105(3) provides that the term of office of a judge who is not the Chief Justice of the Supreme Court and the Justice of the Supreme Court shall be ten years, and he may be reappointed as prescribed by the Act,” thereby guaranteeing directly the term of office of a judge. Accordingly, the retirement age of a judge who is determined by the Act pursuant to Article 1(4) of the same Act differs from the intrinsic nature of the provision of this case. Accordingly, the main text

2) Since honorary retirement allowances under Article 74-2 (1) of the State Public Officials Act are paid by a public official to retire on his own before retirement age, the main text of the instant provision, which was enacted upon delegation under Article 74-2 (4) of the State Public Officials Act, provides that the amount of honorary retirement allowances shall be calculated based on the remaining term of office, not the remaining period until the retirement age of a judge, but the remaining term of office, not the remaining period until the retirement age of a judge.

3) In the case of other career-based public officials, even if the amount of honorary retirement allowances is calculated based on the remaining term of office pursuant to the main text of the instant provision, it constitutes unreasonable discrimination, which is determined based on the remaining term of office pursuant to the main text of the instant provision. In addition, since the remaining term of office, not the remaining term of retirement, is calculated based on the remaining term of office, among the same judges, unreasonable discrimination arises according to the length of the relevant period. Therefore, the main text of the instant provision is unconstitutional and invalid in violation of the principle of equality under the Constitution.

B. Defendant’s assertion

1) The main text of the instant provision, which was enacted based on a broad legislative discretion regarding the specific formation, such as the requirements for the payment of honorary retirement allowances, should be considerably unreasonable and unfair beyond the scope of reasonable discretion to the extent that the exercise of legislative discretion was unconstitutional, and thus, it cannot be implied.

2) Voluntary retirement of judges is voluntary choice on the ground that they can take more monetary income. The honorary retirement allowances for retired judges should be adjusted within the reasonable scope, even when compared with other career-based public officials such as Constitutional Research Institute, police officers, fire officers, and military personnel based on their terms of office or rank retirement years.

3) The main text of the instant provision is irrelevant to the nature of the judge’s tenure system prescribed in the Constitution, and it is reasonable to pay more allowances to the remaining persons with a large term of office. The main text of the instant provision is to determine the honorary retirement allowances on the basis of the remaining terms of office. Inasmuch as the grounds for restricting the reappointment of a retired judge are based on the premise that his status as a judge is deprived after the expiration date of the term of office, deeming that the grounds for restricting the reappointment are premised on the deprivation of his status as a judge is excessive. It is difficult to view that there are special grounds to regard that a judge has to equally treat a judge who has secured additional tenure of 10 years on the sole ground that he is guaranteed retirement age, and that there is no violation of the right to equality

3. Determination

A. Legal nature of honorary retirement allowances

An honorary retirement allowance under the State Public Officials Act, when a public official’s status terminates before his/her retirement age reaches the retirement age, shall provide a livelihood security for the public official to faithfully perform his/her special responsibilities and duties under strict conditions, and encourage voluntary voluntary voluntary retirement to promote the former Ambassador of the organization of public officials and improve the efficiency thereof, thereby allowing the legislators to have relatively wide discretion in establishing specific requirements, methods, and amount of entitlement to honorary retirement allowances (see, e.g., Supreme Court Decisions 2005Da24646, Nov. 15, 2007; 2001Hun-Ba5, Dec. 18, 2002; 201Hun-Ba93, Nov. 25, 2010; and 201Hun-Ba93, Nov. 25, 2010). The wide discretion on the formation of entitlement to honorary retirement allowances is recognized as well as in cases where the National Public Officials Act delegates to the Supreme Court Regulations under Article 74-2(4).

B. Whether it goes against the essence of the judicial term system under the Constitution

The main purpose of the honorary retirement allowances system is to induce a public official to retire before the retirement age to promote the belief of an organization. On the other hand, the guarantee of a judge’s status through the tenure system is basically to ensure a judge’s status as a judge who is not dismissed without impeachment or a sentence of imprisonment without prison labor or a heavier punishment during his/her term of office. Therefore, in the case of a judge who voluntarily renounces his/her status guaranteed under the Constitution and Acts and subordinate statutes and retires from office, even if the honorary retirement allowances are calculated differently according to the remaining term of office at the time of his/her retirement, it cannot be said to contravene the essence of the judicial tenure system under the Constitution.

Article 74-2(1) of the State Public Officials Act only stipulates that a person who has served as a public official for at least 20 years shall voluntarily retire before the retirement age, and Article 74-2(4) of the same Act delegates the scope of the person to whom the honorary retirement allowances are to be paid and the payment procedure for the honorary retirement allowances in this case. In other words, each of the above provisions shall be the basis for paying the honorary retirement allowances to the public official who voluntarily retires before the retirement age. However, it is difficult to interpret that the honorary retirement allowances should be calculated based on the remaining retirement age. Rather, it is difficult to interpret that the honorary retirement allowances should be calculated based on the remaining retirement age. Rather, inasmuch as the honorary retirement allowances have the nature of early retirement allowances or special compensation for work before retirement, the legislators recognized broad discretion in establishing specific payment requirements, and the above Paragraph (4) delegates the specific contents of the subject, scope, amount, etc. to which the honorary retirement allowances are to be paid, so even if the main sentence of the same Article prescribes that the amount of the honorary retirement allowances should be restricted based on the remaining term of office.

D. Whether it violates the principle of equality

1) General legal principles

The principle of equality, based on Article 11(1) of the Constitution, prevents a person from arbitrarily treating the same in essence differently. It refers to a relative equality that does not mean an absolute equality that denies any discriminatory treatment, but rather does not constitute a discrimination that does not have any reasonable grounds when enacting and applying the law. As such, discrimination or inequality based on a reasonable ground does not contravene the principle of equality (see, e.g., Supreme Court Decisions 99Do2309, Oct. 12, 199; 9Do2309, Oct. 10, 2007; 2005Du1417, Oct. 29, 2007).

2) Whether discrimination with other career-based public officials violates the principle of equality

In the case of a judge, other than the retirement age prescribed by law, the term of office is directly stipulated in the Constitution, and each judge does not suffer disadvantages in deprivation of status, such as removal from office, and exercises the judicial power independently, so there is a big difference in duties of guarantee or performance of status compared with the public officials in general career service. Therefore, in a broad sense, excluding that a public official serving citizens in the same sense is in essence the two comparative groups are difficult to view that the two comparative groups are essentially the same. In addition, it is not reasonable to treat a relatively high class in light of the legal nature of honorary retirement allowances. Ultimately, even if a judge is treated disadvantageously to other public officials in career service pursuant to the main sentence of the instant provision,

Therefore, this part of the plaintiff's assertion is without merit.

3) Whether discrimination between retired judges violates the principle of equality

A) For a judge to be eligible for honorary retirement allowances, a person who has served for at least 20 years pursuant to Article 3 of the Rules on Voluntary Retirement Allowances shall not be eligible for a judge of high court or of at least 16 or a judge of at least 16. ③ Voluntary retirement requirements shall be met during the period of at least one year prior to the date of retirement (in the case of the expiration of the term of office prior to the date of the term of office, the term of office shall be set according to the period of service as a public official, soldier, etc. before being appointed as a judge pursuant to Article 23(1) through (3) of the Public Officials Pension Act, in addition to the period of service as a judge, the term of office shall be set by step to a higher grade if a judge is employed for a certain period pursuant to Articles 2 and 2-2 of the Rules on the Standards for Promotion of

However, according to the main text of this case, according to the calculation of the honorary retirement allowances of a judge meeting the above requirements according to the remaining number of months of service, even if different terms, such as the number of years of service, age, etc. of retired judges are identical, if the point of time of appointment and the period of reappointment vary due to military service, etc., if the remaining terms of office

B) However, in light of the permission of various standards, such as the number of years of service, retirement age, remaining period of retirement age at the time of retirement, and remaining term of office, determined depending on whether an employee is eligible for voluntary retirement allowances, such as the number of years of service, retirement age, and the number of years of retirement, which are determined depending on whether the employee is eligible for voluntary retirement allowances, it is difficult to deem that it is unreasonable even if it is determined to calculate the amount of voluntary retirement allowances by reflecting all various standards for recognizing

Even if honorary retirement allowances are calculated according to different standards, such as retirement age, excluding the term of office, it is inevitable that there is a difference within a certain range, such as whether to be eligible for honorary retirement allowances or the amount of honorary retirement allowances, depending on the difference in the age, appointment period, etc. of retired judges, and this is also the same for judges who completed

C) The Constitution provides that a judge shall make an independent inquiry according to his conscience and in accordance with the Constitution and laws (Article 103). To systematically guarantee such a judge’s status, the term of office shall be ten years, and that a judge may be reappointed within the retirement age as prescribed by law (Article 105(3)). Furthermore, a judge shall not be removed from office without being subject to impeachment or imprisonment without prison labor or a heavier punishment, and a judge shall be allowed to retire from office under the conditions as prescribed by Act when he is unable to perform his duties due to a serious mental or physical disorder without being subject to a disciplinary action (Article 106).

Accordingly, Article 45(3) of the former Court Organization Act (amended by Act No. 10861, Jul. 18, 201) allows a judge to be reappointed for ten years and the term of office expires. Furthermore, Article 45-2 provides that a judge shall be reappointed with the consent of the Chief Justice Justice Justice Justice and shall be reappointed for consecutive terms (Article 45-2). Where a judge is unable to perform his/her normal duties due to his/her physical or mental disorder (Article 45(1)); where a judge is unable to perform his/her normal duties due to his/her poor work performance (Article 1); where a judge cannot perform his/her normal duties due to his/her poor work performance (Article 2); where it is substantially difficult to maintain his/her dignity as a judge (Article 3).

As such, the Constitution prescribes the term of a judge 10 years, and guarantees that a judge may independently render a judgment by restricting the removal, disciplinary action, and retirement during his/her term of office. While the term of a judge requires the reappointment procedure prescribed by the Constitution and the Court Organization Act, as long as the term of a judge has been fixed, the remaining term of a judge shall vary depending on the time of appointment and reappointment of a judge. Furthermore, voluntary retirement, which is the requirement for voluntary retirement, is voluntarily waivers of status guaranteed under the Constitution and laws, and the remaining term of a judge shall be determined by whether or not voluntary retirement is made or at that time. In light of the foregoing, even if a person is determined according to the remaining term of a judge at the time of his/her retirement and his/her allowances are calculated differently, it does not contravene the essence of the judicial term system under the Constitution, and it cannot be concluded that the criteria for calculating the amount of voluntary retirement allowances are based on the calculation of the amount of voluntary retirement allowances by reflecting the remaining term of a judge or remaining term of a judge at the time of his/her retirement.

D) Meanwhile, there is a difference in the amount of voluntary retirement allowances according to the total sum of the years of active duty service among similar judges. However, even if the period of active duty service is less than 20 years as the number of years of active duty service is added to the number of years of active duty service, if the number of years of active duty service can be recognized as eligible for voluntary retirement allowances, this would be more given the opportunity to receive voluntary retirement allowances than other judges such as the number of years of active duty service. Therefore, the sum of the years of active duty service cannot be considered to be disadvantageous to the relevant judge. Furthermore, as seen earlier, insofar as a judge voluntarily retired can avoid disadvantages in calculating the remaining period of active duty service by selecting the remaining period of his voluntary retirement by setting the period of continuous retirement, etc., then it is difficult to view such difference as arbitrary and unreasonable discrimination solely on the

Furthermore, compared with the case where a military advocate or a public-service advocate retires more than 20 years of continuous service before his/her continuous service period exceeds 20 years as his/her continuous service period is added, and the Judicial Research and Training Institute is appointed immediately after the end of his/her term of office one year, and the remaining term of office remains more than 2 consecutive terms after his/her secondary reappointment, there is a considerable difference between the amount of voluntary retirement allowances of judges who completed the same term of office as the Judicial Research and Training Institute. However, even if he/she completed the same term of office as the Judicial Research and Training Institute, it is inevitable that the remaining term of office is changed depending on the difference in the time of appointment of judges, and the procedure for reappointment is changed, if a judge selects the early appointment period of two consecutive terms of office after his/her second consecutive terms of office, and in light of this, it is more favorable that the remaining term of office can be recognized as more favorable than the two consecutive consecutive terms of judges, and the remaining term of office of a judge is considerably unfavorable to the judge in accordance with the Constitution or laws.

E) Therefore, comprehensively taking account of the circumstances such as the discretion of the honorary retirement system as seen earlier, the general legal principles on the principle of equality and the criteria for calculating the amount of honorary retirement allowances of judges, the system of judicial officer’s tenure, the voluntary retirement of judges, and the result of the addition of the number of years of service during the period of service, etc., it cannot be deemed that the main text of the instant provision, based on broad discretion on the formation of entitlement to voluntary retirement allowances, provides that the amount of voluntary retirement allowances of judges should be calculated based on the remainder of the retirement age, not only on the remainder of the retirement age but also on the remainder of the term of office, should be reflected

E. Sub-committee

Therefore, the plaintiff's claim of this case based on the premise that the main text of the provision of this case is null and void is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case changed in exchange at the trial of the party is dismissed as it is without merit (the former judge's refusal to pay honorary retirement allowances is withdrawn from the exchange change of the lawsuit made at the trial after remand, and the judgment of the court of first instance was invalidated) and it is so decided as per Disposition.