Whether the retroactive effect of the Constitutional Court Decision 2004Hun-Ga24 Decided December 22, 2005 on Article 21(5)3 of the former Military Pension Act can be recognized as to the other cases (negative)

Article 21(5)3 of the former Military Pension Act (amended by Act No. 5063 of Dec. 29, 1995), Article 47 of the Constitutional Court Act

Plaintiff

Korea

Seoul High Court Decision 2006Nu26150 decided May 23, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

On September 25, 2003, the Constitutional Court decided that "Article 21 (5) 2 through 5 of the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 2000) shall be in violation of the Constitution," and that "Article 21 (5) 3 of the former Military Pension Act (amended by Act No. 5063 of Dec. 29, 1995) shall be in violation of the Constitution."

Meanwhile, in light of the legislative history of the former Military Pension Act, Article 21(5)2, 4, and 5 of the Act was amended by Act No. 5063 of Dec. 29, 1995, but Article 21(5)3 of the same Act was not amended. Thus, among Article 21(5)2 through 5 of the former Military Pension Act, Article 21(5)3 of the same Act, which was decided to be unconstitutional by the decision of unconstitutionality of the first time, is deemed to have been amended by Act No. 3587 of Dec. 28, 1982, and Article 21(5)3 of the same Act was entirely deleted by Act No. 6327 of December 30, 200.

Therefore, as seen above, the second decision of unconstitutionality should be regarded as a part of Article 21 (5) Item 3 of the former Military Pension Act before it was deleted by Act No. 6327 of December 30, 200 after it had already become null and void due to the decision of unconstitutionality of the first decision of unconstitutionality, as seen in the above. This second decision of unconstitutionality cannot be deemed as a retroactive effect on the other cases, even though the second decision of unconstitutionality can be recognized as a retroactive effect on the other cases, which had already become null and void due to the amendment by Act No. 3587 of December 28, 1982.

In the same purport, the judgment of the court below that the second unconstitutional decision does not affect the retroactive effect of the second unconstitutional decision is just, and there is no error in the misapprehension of legal principles as to the scope of the amended law or the retroactive effect, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)