2012Guhap3095 Revocation of Disposition rejecting to pay honorary retirement allowances

A

The Minister of Court Administration

June 28, 2012

July 19, 2012

1. The Defendant’s refusal to pay honorary retirement allowances to the Plaintiff on January 1, 2012 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff passed the 30th judicial examination in 198, and was appointed as a judicial trainee on March 1989, and completed the Judicial Research and Training Institute on February 1, 1991 following the two-year training period, and was appointed as a judicial officer on March 1, 1991, and submitted to the Defendant on February 2010, and filed an application for the payment of honorary retirement allowances with the Defendant. On February 28, 2010, the Plaintiff: (a) the Plaintiff voluntarily retired on February 28, 208; (b) the Plaintiff’s age was 51 years old; (c) the Plaintiff was 51 years old (the Plaintiff was reappointed once during his/her service).

B. Meanwhile, Article 74-2 (1) of the State Public Officials Act provides that "If a person who has served as a public official for at least 20 years voluntarily retires before the retirement age, he/she may be paid an honorary retirement allowance within budgetary limits." According to delegation under paragraph (4) of the same Article, Article 3 of the Payment Rules (hereinafter referred to as the "Rules of this case") provides that "the person eligible to receive an honorary retirement allowance" shall be a judge (excluding a judge above the chief judge of high court and a judge with at least 16 higher rank), a public official in general service, or a public official in technical service for at least 20 years, who has served as a public official for at least one year before the retirement date and voluntarily retires from his/her service for at least one year before the retirement date, the remaining retirement age period shall be calculated as the date on which the retirement date first arrives before the retirement date shall be deemed the date on which the retirement date expires."

C. Regarding the application for the payment of the Plaintiff’s honorary retirement allowances, the Defendant paid to the Plaintiff KRW 20,703,60 [20,000 ( KRW 4,260, X00 x 0.81 x 0.5 x 0.5)] calculated by setting the remainder of retirement age to one year, which is the remainder of the term of office, according to the calculation method [the number of months remaining after the X retirement age of the monthly salary (81%) in accordance with Article 3(1), (5), and [Attachment 1] of the calculation method of the payment of honorary retirement allowances to the Plaintiff.

D. After that, the Plaintiff filed an application for the payment of KRW 132,656,400 for the remaining honorary retirement allowances (hereinafter referred to as “instant application”) with the Defendant, who calculated the remaining remaining retirement allowances of KRW 153,360 from the honorary retirement allowances of KRW 153,70,00, which calculated the retirement age of KRW 20,70 from the honorary retirement allowances of KRW 132,656,00, which was calculated by deducting the remaining retirement allowances of KRW 153,360,00 from the honorary retirement allowances of KRW 153,360,00, which was calculated based on the above rule, because the main sentence of Article 3(5) of the instant rule goes against the essence of the judicial term system and the principle of equality guaranteed by the Constitution

E. Accordingly, the Defendant rejected the instant application on January 17, 2012 on the ground that “the Plaintiff does not go against the essence of the judicial term system and the principle of equality guaranteed by Article 3(5) of the Rules of this case, and does not go beyond the scope of delegation under Article 74-2-2 of the State Public Officials Act, and thus, the calculation and payment of honorary retirement allowances under the above Rules is appropriate” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The main text of Article 3(5) of the instant Rule is null and void for the following reasons, and thus, the Defendant’s disposition taken on a different premise is unlawful.

(1) The main text of Article 3(5) of the Rules of this case replaces the "period of retirement age" to the "date of expiration of the term of office" in the calculation of the "period of retirement age" in the case of a judge in relation to the calculation of the amount of voluntary retirement allowances. However, in order to secure the independence of judicial power through the guarantee of the status of a judge, Article 105(3) of the Constitution 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 under the conditions as prescribed by Act," thereby directly guaranteeing the term of office of a judge. Therefore, the retirement age of a judge who is determined by Act pursuant to Article 3(4) of the Rules of this case differs

(2) Since honorary retirement allowances under Article 74-2(1) of the State Public Officials Act are paid by a public official as a requirement to voluntarily retire before retirement age, the main text of Article 3(5) of the instant Rule enacted by delegation under Article 3(4) of the same Act stipulates that the amount of honorary retirement allowances shall be calculated based on the remainder of the term of office not remaining until retirement age for a judge, but on the basis of the remainder of the term of office, not the remainder of the term of office until retirement age.

(3) In the case of other career-based public officials, even if the amount of honorary retirement allowances is calculated based on the remaining period of the retirement age, the amount of honorary retirement allowances is calculated based on the remaining period of the term of office pursuant to the main sentence of Article 3(5) of the instant Rule, and this constitutes unreasonable discrimination. In addition, since the amount of honorary retirement allowances is calculated based on the remaining period of the term of office, not the remaining period of the retirement age, among such judges, there is unreasonable discrimination based on the length of the relevant period. Accordingly, the provision of the said rule is unconstitutional and invalid in violation of the principle

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Legal nature of honorary retirement allowances

The purpose of honorary retirement allowances under the State Public Officials Act is to provide citizens with more quality of administrative services by promoting a livelihood security for a public official to faithfully perform his/her special responsibility and duties under strict conditions when the public official’s status terminates before he/she reaches the retirement age, and by inducing voluntary voluntary voluntary retirement to resolve the personnel status of the public official, and improving the efficiency of the organization of the public officials. Therefore, even if honorary retirement allowances are unfavorable under the pretext of retirement allowance, compensation, special bonus, etc., it is not social security benefits to ensure the future wage to be received when he/she works at retirement age, or livelihood security after retirement, but it is not money to be paid by an employer to his/her employee to induce early retirement, and it is also a compensatory nature for his/her work before retirement. Accordingly, since the legal nature of honorary retirement allowances, it is relatively broad discretion is allowed when legislators form the specific requirements, method, amount, etc. of entitlement to honorary retirement allowances (see, e.g., Constitutional Court Decisions 201Hun-Ba5, Dec. 18, 2002; 2013Hun-Ba136, Apr. 26, 20014.

(2) Whether it goes against the essence of the judicial term system under the Constitution

However, as seen earlier, the main purpose of the honorary retirement allowances system is to induce a public official to retire before the retirement age to facilitate the belief of an organization. On the other hand, the guarantee of a judge’s status through the tenure system is to ensure a judge’s status as a judge, such as where he/she is not removed from office without impeachment or a sentence of imprisonment without prison labor or a heavier punishment during his/her term of office as a judge. Therefore, in cases of a judge who voluntarily renounces his/her status guaranteed under the Constitution and laws and retires and retires from office, it cannot be said to go against the essence of the judicial term system under the Constitution even if the honorary retirement allowances are calculated differently according to the remaining length of office at the time

(3) Whether the delegation of the parent law deviates from the extent delegated by the parent law

However, Article 74-2(1) of the State Public Officials Act only stipulates that a person who has served as a public official for not less than 20 years voluntarily retires before the retirement age as the requirement for the payment of the honorary retirement allowances, and Article 74-2(4) of the same Act delegates to the instant rules concerning the scope of the persons to be paid the honorary retirement allowances, the amount to be paid, and the payment procedure for the honorary retirement allowances. In other words, each of the above provisions is the basis for the payment of the honorary retirement allowances to the public official who voluntarily retires before the retirement age. However, it is difficult to interpret that the amount of the honorary retirement allowances must be calculated based on the remaining period of the 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 a broad discretion in establishing specific payment requirements, and the above provision delegates specific contents to the instant rules, so even if the main sentence of Article 3(5) of the same Act stipulates that the payment amount of the honorary retirement allowances shall be restricted based on the remaining period of his term of office, the Plaintiff’s allegation is not justified.

(4) Whether it violates the principle of equality

(A) General legal principles

Article 11 (1) of the Constitution provides that "All citizens shall be equal in front of the law. No person shall be discriminated against in political, economic, social, or cultural life on the basis of gender, religion, or social status," and declares the principle of equality. The principle of equality is the basic right to demand equal treatment of the State, at the same time as the State is required to enact, interpret, and enforce the law, and at the same time, not giving equal treatment to the State without reasonable grounds.

In addition, the principle of equality, in essence, requires different treatment from that of the administration with legislative authority or legislative authority. In other words, it does not mean absolute equality that denies all discriminatory treatment, but it means relative equality that excludes discrimination without reasonable grounds in legislative and legal application. Therefore, discrimination with reasonable grounds is not contrary to the principle of equality. Therefore, in examining whether there exists discriminatory treatment or discriminatory treatment is constitutionally justified, the two stages of examination as to whether it is constitutionally justified. The determination of whether it is based on strict criteria of examination in examining constitutional legitimacy of discriminatory treatment should vary depending on the degree of freedom of formation recognized in the administration with legislative authority or legislative authority, or, even though the Constitution presents the area where standards or discrimination is prohibited, it should not be based on such criteria, and if it causes a serious restriction on relevant fundamental rights due to such discrimination, it shall be reduced legislative formation rights and shall be applied more than 20 Hun-Ma208, 208, 2008, 2005, 2085, 2005, 208, 2016, 296,

(b) the existence of and review criteria for discriminatory treatment;

In light of the main text of Article 3(5) of the instant Rule, there exists discriminatory treatment that differs in terms of the criteria for the calculation of the amount of honorary retirement allowances between a judge and a public official in other career positions, and even among retired judges, there exists a difference in the amount of honorary retirement allowances according to the remaining term of office. However, such discriminatory treatment is difficult to be deemed as a case requiring special equality in the Constitution. Furthermore, considering the legal nature of honorary retirement allowances, it is reasonable to apply the mitigated criteria for the examination of equality as to the provision of the said Rule, considering that the legislative or administrative agency delegated by legislation is permitted to form specific payment requirements, methods, and amount of the entitlement to honorary retirement allowances, etc. of honorary retirement allowances, taking into account that the legal nature of the honorary retirement allowances is relatively broad discretion in forming

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

In the case of a judge, the term of office is prescribed in the Constitution in addition to the retirement age prescribed by the Act, and each judge does not suffer disadvantages in deprivation of status, such as removal from office, during his term of office, unless by impeachment, etc., and exercises the judicial power independently, so there is a big difference in duties of guaranteeing or performing status compared with the public officials in general career service. Therefore, if excluding that a public official who serves citizens in a broad sense, the two comparative groups are in essence the same. In addition, in light of the legal nature of the honorary retirement allowances, it is not reasonable that the two comparative groups should be given preferential treatment because a higher class is given in light of the legal nature of the honorary retirement allowances. Accordingly, even if a judge is treated disadvantageously to other public officials in career service pursuant to Article 3(5)

(D) Whether discrimination between retired judges violates the principle of equality

1) Table of discrimination

As seen earlier, the Plaintiff suffered less disadvantages than the Plaintiff’s remaining term of office among judges retired at the same time. However, it is not possible to consider otherwise in addition to the remaining period until the expiration of the term due to such unfavorable treatment. Therefore, it is a matter of whether the draft of discrimination between retired judges is the remaining term of office and the said draft of discrimination can be accepted as reasonable criteria of discrimination.

2) Guarantee of status of judge

Unlike other state agencies or their employees who exercise jurisdiction over the major three areas of legislative, administrative and judicial powers, which are the sovereignty of the State, a judge is one of the independent agencies that declare and judge the law in accordance with conscience and in accordance with the Constitution and laws, and accordingly, his status is guaranteed by the Constitution for the independence of judicial power (see Constitutional Court Order 2001Hun-Ma557, Oct. 31, 2002). In other words, Article 103 of the Constitution provides that "legal officers shall judge independently according to their conscience and conscience in accordance with the Constitution and laws," thereby declaring the independence of judges in order to guarantee the status of judges who are in charge of judicial power (Article 101 (3) of the Constitution of the Republic of Korea), the term system of judges (Article 105 (1) through (3) of the Constitution of the Republic of Korea), the legal principle of retirement age of judges (Article 105 (4) of the Constitution of the Republic of Korea), and Article 105 (1) through (4) of the Constitution of the Constitution shall not be subject to impeachment or discharge.

Meanwhile, Article 45(4) of the former Court Organization Act (amended by Act No. 10861, Jul. 18, 2011; hereinafter the same) delegated by Article 105(4) of the Constitution stipulates the retirement age of the remaining judges except the Chief Justice of the Supreme Court and the Supreme Court Justice as 63 years of age, and Article 45-2 of the same Act provides for the reappointment and restriction of judges.

3) Grounds for exception to status guarantee

A) Impeachment under Article 65 of the Constitution

According to Article 65(1) and (2) of the Constitution of the Republic of Korea and Article 53(1) of the Constitutional Court Act, when a judge violates the Constitution or laws in the performance of his/her duties, the National Assembly may make a decision of impeachment with the proposal of at least 1/3 of all incumbent members and with the consent of a majority of all incumbent members, and the Constitutional Court shall make a decision of dismissal from his/her public office when a request for impeachment of the National Assembly is well-grounded. Such impeachment procedure is significant in that it is intended to protect and maintain the Constitution from infringement by the administration and the judiciary, which is a system to protect the Constitution from infringement by the high-ranking public officials of the judiciary and to deprive the State agency of its power if it violates the Constitution

On the other hand, Article 53 (1) of the Constitutional Court Act provides that "if a request for impeachment is well-grounded, the Constitutional Court shall decide to dismiss the respondent from the public office in question," and it can be interpreted that the above provision must be automatically dismissed in all cases where the grounds for impeachment under Article 65 (1) of the Constitution are recognized. However, if a request for impeachment is to be removed for all minor violations due to duties, this would be in violation of the principle of balancing legal interests, i.e., the request for disciplinary action corresponding to the respondent's responsibility. Therefore, "if a request for impeachment is well-grounded" under Article 53 (1) of the Constitutional Court Act refers not to all violations of the law, but to the extent that the removal of the public official is justified, the question of "if the violation of the law is serious" or "if it is justified," it cannot be perceived as its own, and therefore, it should be interpreted that the Constitutional Court's decision should be 104 unconstitutional or 204 unconstitutional.

(B) retirement due to mental or physical impairment;

Article 47 of the former Court Organization Act (amended by Act No. 10861, Jul. 18, 2011; hereinafter the same) provides that "When a judge is unable to perform his/her duties due to a serious mental or physical disorder, the President of the Supreme Court in the case of a Justice who is a Justice, and the Chief Justice of the Supreme Court in the case of a judge, may order him/her

C) The term of office of judges

From the 10-year term of office from the 10-year constitution, the 5-year term of office of judges who are the Chief Justice of the Supreme Court in the 1962 constitution, the 6-year term of judges, the 10-year term of general judges, and the 65-year term of judges in the 65-year term of office, and the 7-year term of judges in the 197-amended constitution, however, the 5-year term of office was explicitly provided in the 65-year term of judges in the 65-year term. However, in the 1972 constitution, the 7-amended constitution (1972 constitution), the 195-year term of retirement was stipulated in the 8-amended constitution (1980 constitution), the 195-year term of judges was stipulated in the 198-year term of office, and the 195-year term of office was stipulated in the 197-year term of office.

The judicial retirement age system aims to maintain the judicial system by coping with the fact that physical and mental capacity drops according to the ordinary age, and by efficiently performing the duties of judicial system. On the other hand, it is for the important public interest to promote the truth of the judicial human resources, thereby creating vitality to the judicial organization, and further, it is deemed that the status guarantee of the judge contributes to a certain portion of the status guarantee of the judge by specifying the retirement age (see Constitutional Court Order 2001Hun-Ma557, Oct. 31, 2002).

However, the reason for setting the retirement age system of judges seems to be to prevent the abolition that may arise in cases where a judge strongly guarantees the status of a judge until the retirement age. In other words, the core element of the judiciary is the independence of a judge and for this purpose, even if a judge takes disciplinary action without being subject to "anthrac or a sentence of imprisonment without prison labor or any heavier punishment, it is so strong that the status of a judge would not be deprived. However, even if a judge commits an unlawful act such as violating the Constitution and laws in the course of performing his/her duties, excluding cases where a judge is sentenced to imprisonment without prison labor or any heavier punishment in a criminal trial, it is difficult in fact to deprive him/her of the status of a judge through impeachment procedures strictly provided for in the Constitution and the Constitutional Court Act. On the other hand, since a judge exercises the judicial power independently, it is necessary to observe and properly control the judge's lack of expertise in performing his/her duties or in performing his/her duties, as well as his/her duties, due to the decline of physical and mental capacity following the aging of a judge.

In order to resolve such contradictory situations arising from the specificity of the position of a judge, the Constitution provides for a system of tenure and reappointment of a judge, and provides for the judicial independence as the top priority task during the fixed term of office by guaranteeing the status of a judge, but where the term of office expires, it is interpreted that it is intended to secure the legality and loyalty of a judge's daily performance of duties by restricting the reappointment of a judge who is deemed inappropriate to continue to perform his/her duties, such as committing misconduct through the examination of reappointment or falling short of his/her ability to perform his/her duties. Ultimately, it is reasonable to deem that the fixed term of office system of a judge, not for limiting the fixed term of office as a judge, has the nature of supplementing the above system by supplementing the deficiencies of impeachment system of a judge who is difficult to perform on a regular basis and undergoing corresponding evaluation procedures every certain period of time. Where normal duties as a judge cannot be performed as a judge due to mental disorder, which is the reason for restriction of reappointment under each subparagraph of Article 45-2 (2) of the former Court Organization Act (subparagraph 1), where normal duties as a judge cannot be performed due to considerably poor (subparagraph 2).

Therefore, since the expiration of the period of reappointment does not mean the expiration of the period of guarantee of status, it is reasonable to view that a judge is guaranteed his/her status even after his/her retirement age unless there are special circumstances to deem that there

4) Whether the criteria for discrimination are reasonable

In full view of the aforementioned legal status guarantee, the purpose of the judicial tenure system, the criteria for a judge’s reappointment review, impeachment and reappointment review, etc., it is the premise that Article 3(5) of the instant Rule is deprived of the status of a judge after the expiration of the term of office due to grounds for restricting the reappointment of a judge (i.e., the remaining period until the subsequent reappointment review) on the basis of the calculation of the amount of voluntary retirement allowances of a judge (in the case of a general public official, it is nothing more than that of a judge to estimate that a public official who voluntarily retires would lose his status due to dismissal before reaching the retirement age and to reduce the remaining period until the retirement age, and to calculate the voluntary retirement allowances by reducing the remaining period until the retirement age). However, such discrimination treatment is contrary to the Constitution and law purport that a judge is guaranteed a status guarantee by the retirement age limit, and it is difficult to view that there is a reasonable standard to justify the difference between the amount of voluntary retirement allowances paid by a retired judge who does not go beyond the retirement age limit and the remaining period until the reappointment review.

(4) The theory of lawsuit

Ultimately, since the main text of Article 3(5) of the instant Rule is null and void in violation of the principle of equality under the Constitution, the Defendant’s disposition based on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge shall hear the number of judges

Judges Lee Jae-ho

Judges Hong-seok

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.