[1] The scope of the effect of the Constitutional Court's decision of unconstitutionality, and whether the retroactive effect of the decision of unconstitutionality may be limited where it is inevitable to maintain legal stability or to protect the trust of the parties (affirmative)

[2] The case holding that Article 64 (1) 1 of the former Public Officials Pension Act which limits the payment of retirement benefits, etc. to a private school teacher and staff member under Article 42 (1) of the Pension for Private School Teachers and Staff Act was amended to the effect of December 31, 2008, but the above time limit has not been revised, as the teacher and staff member of a private school were sentenced to suspended sentence due to intentional crimes while in office and retired from office, the Korea Teachers and Staff paid a retirement allowance and a lump-sum retirement allowance to Gap, and on December 31, 2009, the above provision was excluded from the payment restriction of retirement benefits, etc. as the proviso of Article 1 of the Addenda to the former Public Officials Pension Act which provides that "the provisions of Article 64 are applied from January 1, 2009 to the case where the Corporation already paid part of retirement benefits, etc. to Gap, and it is considerably difficult to readily conclude that the aforementioned provision was unconstitutional for the reason that there was a violation of the former proviso of Article 14 of the Addenda.

[1] The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the "relevant case," where the Constitutional Court made a request for adjudication of unconstitutionality of the same kind before the decision of unconstitutionality was made, or where the Constitutional Court made a request for adjudication of unconstitutionality before the decision of unconstitutionality was made, the application for adjudication of unconstitutionality was not made separately from the "same-type case," but also the "general case," where the relevant law or provision of law is the premise of judgment, and is pending in the court for the same reason after the decision of unconstitutionality was made. However, the scope of the effect of the decision of unconstitutionality cannot be limited, and it is not denied to limit the retroactive effect by other legal principles, and the restriction of the retroactive effect of the decision of unconstitutionality is required under the principle

[2] In a case where Article 64 (1) 1 of the former Public Officials Pension Act (amended by Act No. 905 of Dec. 31, 2009; hereinafter the same shall apply) which limits the payment of retirement benefits, etc. to the private school faculty members applicable mutatis mutandis under Article 42 (1) of the Pension for Private School Teachers and Staff Act was issued a ruling of inconsistency with the Constitution to the effect that the payment of retirement benefits, etc. to the private school staff members shall remain effective until the legislative amendment was made on December 31, 208, but where the above amendment was not made until the legislative amendment was made, it is difficult to conclude that Article 64 (1) of the former Public Officials Pension Act was unconstitutional on the grounds that the provision of the proviso to Article 14 of the former Public Officials Pension Act was unconstitutional on the ground that the provision of Article 64 (1) of the former Public Officials Pension Act was unconstitutional on the ground that the provision of the Act was unconstitutional on the grounds that the provision of Article 166 of the former Public Officials Pension Act was unconstitutional.

[1] Article 47 of the Constitutional Court Act / [2] Article 47 of the Constitutional Court Act, Article 42(1) of the Pension for Private School Teachers and Staff Act, Article 64(1)1 of the former Public Officials Pension Act (Amended by Act No. 9905, Dec. 31, 2009); Article 64(1)1 of the former Public Officials Pension Act (Amended by Act No. 13387, Jun. 22, 2015); Article 1 of the Addenda (Amended by Act No. 13387, Dec. 31, 2009); Article 13(2) of the Constitution

[1] Supreme Court en banc Decision 93Da42740 Decided October 25, 1994 (Gong1994Ha, 3077), Supreme Court Decision 2008Du21577 Decided June 11, 2009 (Gong2009Ha, 1130), Supreme Court Decision 2010Du11016 Decided October 14, 2010 / [2] Constitutional Court en banc Decision 2005Hun-Ba33 Decided March 29, 2007 (Hun-Ba126, 288), Constitutional Court en banc Decision 2013Hun-Ba170 Decided September 26, 2013 (Hun-Ba204, 1354)

Plaintiff (Law Firm Pyeong, Attorneys Lee Jae-hoon et al., Counsel for the plaintiff-appellant)

Private School Staff Pension Corporation (Law Firm, Attorneys Kim Young-chul et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2014Na49323 decided August 19, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

1. Regarding ground of appeal No. 1

The court below rejected the defendant's assertion that the recovery decision of this case cannot be viewed as a disposition of an administrative agency that is subject to appeal litigation, since the court below held that since the private school teacher is appointed by school juristic person or private school manager, and the defendant is an organization that acts as a mutual aid among the private school teacher and the school juristic person or private school manager, as long as the relationship between the school juristic person and the defendant is an organization that acts as a mutual aid among the private school teacher and the school juristic person or private school manager, it cannot be viewed as the power relationship under public law.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles on the legal nature of a redemption decision pursuant to Article 39 of the Pension for Private School Teachers and Staff Act and the grounds for invalidation of administrative dispositions, contrary to what is alleged in

2. Regarding ground of appeal No. 2

A. The effect of the decision of unconstitutionality of the Constitutional Court is not limited to “the pertinent case,” where the Constitutional Court made a request for an adjudication on unconstitutionality of the same kind before the decision of unconstitutionality is made, or where the Constitutional Court made a request for an adjudication on unconstitutionality of the same kind before the decision of unconstitutionality was made, but the relevant law or provision of the law has not been applied for an adjudication on the unconstitutionality of the same kind, but also to “the general case,” which was brought before the court for the same reason after the decision of unconstitutionality was made. However, the scope of the effect of the decision of unconstitutionality cannot be limited, and it does not deny that the effect of the decision of unconstitutionality is limited by other legal principles, and the restriction of the retroactive effect of the decision of unconstitutionality in inevitable cases for the maintenance of legal stability or the protection of the trust of the parties is in need of the rule of law (see Supreme Court Decision 2010Du1

B. The lower court acknowledged the following facts.

1) The Plaintiff, while serving as a teacher of a private school, was sentenced to a suspended sentence, and retired from office on August 31, 2009.

2) Article 42(1) of the Pension for Private School Teachers and Staff Act provides that the Public Officials Pension Act shall apply mutatis mutandis to matters relating to restrictions, etc. on benefits. The Constitutional Court en banc Decision 2005Hun-Ba3 Decided March 29, 2007, rendered that Article 64(1)1 of the former Public Officials Pension Act (amended by Act No. 9905, Dec. 31, 2009; hereinafter the same) that limits the payment of retirement benefits and retirement allowances does not conform with the Constitution, and that the said provision of the said Act shall continue to remain in force until the legislators amended on December 31, 2008.

3) However, the former Public Officials Pension Act was not amended until December 31, 2008, and the Defendant paid the Plaintiff a retirement allowance and a lump-sum retirement allowance on September 2009 when the former Public Officials Pension Act was not amended.

4) Article 64(1)1 of the Public Officials Pension Act (amended by Act No. 9905, Dec. 31, 2009; hereinafter “the amended Public Officials Pension Act”) provides that “where a person was sentenced to imprisonment without prison labor or heavier punishment due to a cause in the line of duty” is excluded from retirement benefits and retirement allowance restrictions. The proviso to Article 1 of the Addenda thereto stipulates that “the amended provisions of Article 64 shall be applicable from January 1, 2009,” (hereinafter “the Addenda provision of this case”).

5) On August 9, 2010, pursuant to the amended Public Officials Pension Act, applicable mutatis mutandis under the Pension for Private School Teachers and Staff Act, and the provisions of the Addenda of this case, the Defendant decided to recover half of the retirement allowances and the lump sum of retirement allowances already paid to the Plaintiff on September 2009. The Plaintiff paid KRW 35 million out of the total sum of the amount to be recovered to the Defendant.

6) On September 26, 2013, the Constitutional Court rendered a decision that Article 64(1)1 of the amended Public Officials Pension Act, among the supplementary provisions of the instant case, applies ex post facto retroactively to the portion for which the claimant received all retirement pension due to the arrival of the due date, and thus constitutes a retroactive legislation prohibited in principle pursuant to Article 13(2) of the Constitution, and thus, is in violation of the Constitution on the ground that the retroactive legislation is not permissible exceptionally.

C. After recognizing the above facts, the court below determined that the decision of unconstitutionality of this case has a retroactive effect on this case, which is a general case brought for the same reason, since the decision of recovery of this case was made without any legal basis, and thus the defendant should return the money recovered from the plaintiff as unjust enrichment, on the grounds that the request of concrete validity for the remedy of the plaintiff's right is significant, while recognizing the retroactive effect is not likely to infringe on legal stability, and the denial of the retroactive effect is extremely contrary to the constitutional ideology, such as justice and equality.

D. However, the lower court’s determination is difficult to accept for the following reasons.

In other words, the Constitutional Court en banc Decision 2005Hun-Ba33 Decided March 29, 2007 ruled that the restriction on payment of retirement benefits and retirement allowances under Article 64 (1) 1 of the former Public Officials Pension Act which limits the payment of retirement benefits and retirement allowances is unconstitutional, rather than the restriction on payment itself, on the ground that “an act that restricts retirement benefits, etc. is not an appropriate means to prevent public officials from committing a crime and to lead public officials to faithfully perform their duties while in office” (Article 64 (1) 1 of the former Public Officials Pension Act which limits the payment of retirement benefits and retirement allowances cannot be deemed as unconstitutional, and thus, it still remains effective until December 31, 2008; (2) it is generally accepted that the payment of retirement benefits and retirement allowances has been made upon request by a public official or private school teacher of the former Public Officials Pension Act for reasons of maintaining the status of a public official and his/her duty; and (3) it is difficult to recognize that the Plaintiff still has been subject to the legal protection of retirement benefits and retirement allowances by negligence.

E. Therefore, the lower court erred by failing to exhaust all necessary deliberations and by misapprehending the legal doctrine on the retroactive effect of the decision of unconstitutionality, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

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 Ki-taik (Presiding Justice)