[1] Whether it is permissible to immediately file a lawsuit against the State as a party suit without going through the procedure of appeal, etc. for recognizing the right to receive a retirement pension, etc. under the former Military Pension Act (negative)

[2] Whether a beneficiary of a retirement pension who has an objection to a measure to reduce the amount of the retirement pension by amendment of the statute can directly file a lawsuit against the State in public law (affirmative)

[1] Comprehensively taking into account the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 200) and the Enforcement Decree of the same Act (amended by Presidential Decree No. 17099 of Dec. 30, 200), the right to receive retirement pension, etc. under the same Act arises only when the Minister of National Defense recognizes it as a result of the confirmation by the Chief of Staff of each service branch, rather than directly arising from the provisions of the relevant Act and subordinate statutes, and the person who wishes to receive the above benefits has a specific right only when the Minister of National Defense recognizes it through the confirmation by the Chief of Staff of each service branch. First of all, in a case where the Minister of National Defense requests the Minister of National Defense for the recognition of the right to claim the recognition of the right, or conducts a disposition to recognize only a part of the claim, he/she shall request the payment of the benefits as a party litigation. It is not allowed to demand

[2] In a case where the amount of a retirement pension is changed due to the revision of a salary class or salary amount under the Military Remuneration Act and the Public Officials Remuneration Regulations while a retirement pension was paid upon the recognition of the Minister of National Defense, the amount of a retirement pension under the amended provisions is not determined by the determination and notification of the amount of a retirement pension of the Minister of National Defense under Article 18(1) and (2) of the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 200). Thus, the beneficiary of a retirement pension who has an objection to the measures for reduction of the amount of a retirement pension of the Minister of National Defense pursuant to the amendment of statutes does not dispute the validity of the measures for reduction by filing an appeal lawsuit against the State directly, but can dispute by filing a lawsuit against the State in the public law seeking the payment of the difference between the amount of a retirement pension and the amount of a retirement pension notified. A person who has an objection to the benefits under Article 5(1) of the same Act may file a request for examination with the Military Pension Review Committee.

[1] Articles 5(1), 6 subparag. 1, 10(1), and 18 of the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 200), Articles 21(1), and 34 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 17099 of Dec. 30, 200), Articles 2 and 3 subparag. 2 of the Administrative Litigation Act / [2] Articles 5(1), 6 subparag. 1, 10(1), and 18 of the former Military Pension Act, Article 2 subparag. 30 of the former Enforcement Decree of the Military Pension Act (amended by Act No. 6327 of Dec. 30, 200), Article 21(1), and 30 subparag. 1, Article 30 of the Military Pension Act (amended by Presidential Decree No. 17099 of Dec. 30, 200), Article 21(3) of the former Enforcement Decree of the Military Pension Act

[1] Supreme Court Decision 87Nu2000 delivered on December 8, 1987 (Gong1988, 275), Supreme Court Decision 92Nu335 delivered on December 24, 1992 (Gong1993Sang, 627), Supreme Court Decision 93Nu18532 delivered on September 15, 1995 (Gong195Ha, 3413), Supreme Court Decision 96Nu6417 delivered on December 6, 1996 (Gong197Sang, 224)

Plaintiff

Korea

Gwangju High Court Decision 2001Nu99 delivered on April 3, 2002

The judgment below is reversed and the case is remanded to the Gwangju High Court.

1. The court below held that the right to receive benefits, such as retirement pension, under the Military Pension Act does not directly arise under the provisions of Acts and subordinate statutes, but arises only when the Minister of National Defense approves the effect of the reduction of the pension upon the request of the Chief of Staff of the military branch to which the person who wishes to receive benefits belongs, and therefore, the person who wants to receive benefits, claiming the effect of the reduction of the pension pursuant to the amendment of the Acts and subordinate statutes, should first seek the payment of benefits through a party suit only after obtaining the recognition of specific right by filing an appeal suit against the disposition, where the Minister of National Defense refuses a request for recognition of the right or only part of a claim, etc., upon receiving a request from the Minister of National Defense, and the Minister of National Defense makes a disposition to recognize the right to receive benefits. The court below held that it is not allowed to demand the confirmation of the right or demand payment of benefits through a party suit against the State immediately without any specific right to receive benefits, and on the premise that the payment of benefits is unlawful on the ground that Article 30-2 (3) of the Military Remuneration Act was in violation of Article 10 of the former Salary Salary Act.

2. Comprehensively taking account of the Military Pension Act (amended by Act No. 6327 of Dec. 30, 200; hereinafter referred to as the "Act") and the Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 17099 of Dec. 30, 200), the right to receive retirement pension, etc. under the Act arises only when the Minister of National Defense recognizes the right to receive benefits through the confirmation of the Chief of Staff of each service branch, not directly arising from the provisions of the Act. A person who intends to receive the above benefits must first seek recognition of the right to request recognition from the Minister of National Defense in accordance with the relevant Acts and subordinate statutes, and then seek payment of the benefits through a party suit only when the Minister of National Defense rejects a request for the recognition of the right or takes a disposition to recognize only a part of the claims, such as filing an appeal lawsuit against the Minister of National Defense, and it is not allowed to immediately seek confirmation of the right or demand payment of benefits through a party suit against the State (see Supreme Court Decision 93Nu532325, Sept. 15, 19995).

However, in accordance with the above procedures, in cases where the amount of a retirement pension is changed due to the revision of a salary class or salary amount under the Military Remuneration Act and the Public Officials Remuneration Regulations while a retirement pension was paid upon the recognition of the Minister of National Defense, the amount of a retirement pension under the amended provisions is naturally determined according to the amendment of the statutes, and the amount is not determined only by the determination and notification of the amount of a retirement pension of the Minister of National Defense as stipulated in Article 18(1) and (2) of the Act. Thus, a beneficiary of a retirement pension who has an objection to a measure to reduce the amount of a retirement pension of the Minister of National Defense pursuant to the amendment of the statutes does not dispute the validity of a measure to reduce the amount of a retirement pension by means of filing an appeal, not by directly filing a lawsuit by a party to a lawsuit seeking the payment of the difference between the amount of a retirement pension and the notified amount of a retirement pension, and the person who has an objection to the benefits pursuant to Article 5(1)

Nevertheless, the court below rejected the lawsuit of this case on the ground that the lawsuit of this case is unlawful as seen earlier, and there is an error of law by misapprehending the legal principles on party litigation in public law.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ji-dam (Presiding Justice)