Whether the reason why the pertinent law, which is the basis of administrative disposition, is against the Constitution before the Constitutional Court’s decision on unconstitutionality is a ground for invalidation of administrative disposition (negative in principle)

Article 19 of the Administrative Litigation Act

Supreme Court Decision 92Nu9463 Decided October 28, 1994 (Gong1994Ha, 3139) Supreme Court Decision 2001Du3181 Decided November 8, 2002 (Gong2003Sang, 75) Supreme Court Decision 201Du16124 Decided November 15, 2012

Plaintiff

The Government Employees Pension Service

Seoul High Court Decision 2011Nu44626 decided July 20, 2012

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

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

Article 64(1)1 (hereinafter “instant reduction provision”) of the Public Officials Pension Act (amended by Act No. 905, Dec. 31, 2009) (hereinafter “the instant reduction provision”) on August 29, 2013 does not conflict with the binding force of the Constitutional Court Decision 2005Hun-Ba3, Mar. 29, 2007; it does not infringe upon the constitutional property rights and the right to a life worthy of human dignity; and does not violate the principle of equality, and the Public Officials Pension Act (amended by Act No. 9905, Dec. 31, 2009; hereinafter “the instant supplementary provision”) did not violate the Constitution on the grounds that property rights are infringed in violation of the principle of retroactive legislation prohibition (see, e.g., Constitutional Court Order 2010Hun-Ba354, Aug. 29, 2013).

If the Constitutional Court, after the issuance of an administrative disposition based on the law, decides that the law, which served as the basis for the administrative disposition, is unconstitutional, the administrative disposition will be identical to that which was conducted without the basis of the law, and thus, it will be deemed that there was a defect. However, in order for the defective administrative disposition to be null and void as a matter of course, the defect is serious, and it must be apparent. In general, it cannot be deemed objectively obvious before the Constitutional Court renders a decision of unconstitutionality. Thus, the reason why the law, which served as the basis for the administrative disposition, is in violation of the Constitution before the Constitutional Court renders a decision of unconstitutionality cannot be deemed objectively clear, barring any special circumstance, can only be the premise for the lawsuit seeking cancellation of the administrative disposition, and it is reasonable to deem that the administrative disposition is not a ground for the rightful invalidation (see Supreme

Examining the records in light of the above circumstances and legal principles, it is inappropriate for the court below to consider the proviso to Article 1 of the Addenda provision of this case as not being unconstitutional, but to dismiss the claim of this case seeking confirmation of invalidity of the disposition of this case conducted against the plaintiff, based on the reduction provision of this case and the Addenda provision of this case, as stated in its reasoning. Accordingly, it is just to dismiss the claim of this case, which affected the conclusion of the judgment by unconstitutionality of the reduction provision of this case or the supplementary provision of this case, or by failing to exhaust all necessary deliberations, or by depriving the plaintiff of opportunity for oral argument, as alleged

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.

Justices Kim So-young (Presiding Justice)