[1] Where the retroactive effect of the Constitutional Court's decision of unconstitutionality is limited

[2] The case holding that the retroactive effect of the Constitutional Court's decision of unconstitutionality on Article 21 (5) 3 of the former Military Pension Act is limited

[1] Articles 41 and 47 of the Constitutional Court Act / [2] Article 21 (5) 3 of the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 200)

[1] Supreme Court Decision 91Nu5747 delivered on January 15, 1993 (Gong1993Sang, 735) Supreme Court Decision 92Da12377 delivered on January 15, 1993 (Gong1993Sang, 698) Supreme Court Decision 2006Du1296 delivered on June 9, 2006

Kim Jong-soo (Attorney Lee Dong-soo, Counsel for the defendant-appellant)

Korea

Seoul High Court Decision 2004Nu19240 delivered on July 28, 2005

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the case in which the Constitutional Court made a proposal of unconstitutionality or made a request for the same kind of unconstitutionality before the decision of unconstitutionality was made, but the case in which the Constitutional Court made a request of unconstitutionality with respect to the same kind of unconstitutionality before the decision of unconstitutionality was made, but the relevant law or provision of law is the premise of judgment and has been pending in the court, but also to the general case brought for the above reasons after the decision of unconstitutionality was made. However, the effect of the decision of unconstitutionality is not limited to the case in which the scope of its effect cannot be unlimited and it is limited by other legal principles, and it is rather necessary to limit the retroactive effect of the decision of unconstitutionality when it is inevitable to maintain legal stability or protect the trust of the parties (see Supreme Court Decisions 93Da42740, Oct. 25, 1994; 205Du5628, Nov. 10, 2005).

According to the facts duly established by the court below and records, since the designated parties including the plaintiff (appointed parties; hereinafter "the plaintiff et al.") were to retire after serving as military personnel for at least 20 years and to receive the retirement pension under the Military Pension Act, Article 21 (5) 3 of the former Military Pension Act (amended by Act No. 5063 of Dec. 295; hereinafter the same) and Article 4 (1) of the Enforcement Rule of the same Act (amended by Presidential Decree No. 510 of Jan. 31, 2000) provides that the National Park Management Corporation shall be entitled to suspend payment of the entire or partial amount of the pension under Article 21 (2) of the former Military Pension Act (amended by Presidential Decree No. 2010 of Jan. 31, 200) and the purpose of the two-year Military Pension Act (amended by Presidential Decree No. 2010 of Jan. 29, 200) is unconstitutional.

In light of the following circumstances, in cases where the retroactive effect of the instant decision of unconstitutionality is recognized as to a general case brought before the court after the instant decision of unconstitutionality, the Constitutional Court itself completely excluded the application of the retirement pension payment suspension system itself, which the above decision of unconstitutionality and could not prevent the outcome excessive payment. Furthermore, the retroactive effect of the instant decision of unconstitutionality is recognized as to a general case, and thus, Article 21(5)2 through 5 of the former Military Pension Act came into effect from January 1, 2001 until the instant decision of unconstitutionality is made, and the recipient of a retirement pension serves as an officer or employee of the institution subject to suspended payment of a retirement pension before the date of the instant decision of unconstitutionality, and pays the entire retirement pension to the Defendant retroactively, it is reasonable to view that the legal stability of the instant decision of unconstitutionality is significantly limited compared to the request of the Plaintiff et al. to maintain the existing legal stability and protection of rights.

Therefore, we affirm that the court below's conclusion that the retroactive effect of the decision of unconstitutionality of this case does not extend to this case is just. The court below did not err in the misapprehension of legal principles as to the retroactive effect of the decision of unconstitutionality as

In addition, the precedents pointed out in the grounds of appeal are inappropriate to be invoked as they differ from this case.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)