[1] Whether a workplace-based insured person of the National Pension Service has a right not to pay the pension premium at his/her discretion even though he/she obtained eligibility to subscribe to the National Pension Service

[2] The case holding that where an employer of a workplace subject to obligatory application under the former National Pension Act submitted a report on the qualification of workplace-based workplace-based subscriber to an employee whose employer was omitted while the employee did not pay pension contributions because he did not report the qualification of workplace-based subscriber to the employee, and submitted the report with the "written desire to pay national pension contributions" attached to the "written desire to

[1] The legislative purpose of the former National Pension Act (wholly amended by Act No. 8541, Jul. 23, 2007) is to contribute to the stabilization of livelihood and the promotion of welfare of the people by embodying the entitlement to social security benefits, one of the social fundamental rights (Article 1); the workers and employers aged between 18 and under 60 are obligated to automatically join the National Pension as workplace subscribers except partial exceptions (Article 8(1)); the time of acquisition of workplace subscribers is objectively determined when the workplace subscribers are employed in the mandatorily applicable workplace or when the workplace becomes the employer thereof; the workplace subscribers or the workplace becomes the mandatorily applicable workplace (Article 11(1)); the period for which the workplace subscribers did not pay the pension contributions is not included in the subscription period of the National Pension (main sentence of Article 17(2)); the employer is obligated to arbitrarily deduct the contributions to the Corporation from the monthly wage to be paid by the workplace subscribers (Article 17(1)5); the period from the time when the workplace does not report the eligibility or loss of workplace subscribers (Article 15).

[2] The case holding that, where an employer of a workplace subject to obligatory application under the former National Pension Act (wholly amended by Act No. 8541 of Jul. 23, 2007) did not report the qualification of workplace-based insured workers, and an employee did not pay pension contributions because the employee did not report the qualification of workplace-based insured workers and did not pay pension contributions, and submitted a report on the qualification of workplace-based insured workers with the omitted employee's workplace-based insured status, the employee is obligated to pay pension contributions as a matter of course from the time when he acquired the workplace-based insured status, and it cannot be said that the employee has the right to pay pension contributions at will, and thus, it shall be null and void in each of the above statements stating that "the employee wishes to acquire the workplace-based insured status from the time of reporting after the time of omission

[1] Articles 8 (1) (see current Article 8 (1) and 77 (1) (see current Article 90 (1)) of the former National Pension Act (wholly amended by Act No. 8541 of July 23, 2007) / [2] Articles 8 (1) (see current Article 8 (1)), 77 (1) (see current Article 90 (1)) of the former National Pension Act (wholly amended by Act No. 8541 of July 23, 2007)

Plaintiff (Attorney Regular Ho-ho et al., Counsel for the plaintiff-appellant)

National Pension Service

Seoul High Court Decision 2008Nu3335 decided October 31, 2008

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

If the legislative purpose of the former National Pension Act (wholly amended by Act No. 8541 of July 23, 2007, which was in force from January 1, 2008, hereinafter referred to as the "National Pension Act") is to contribute to the stabilization of livelihood and the promotion of welfare of the people by embodying the entitlement to social security benefits, one of the fundamental social rights (Article 1), workers and employers aged between 18 and 60 are naturally required to subscribe to the National Pension as workplace subscribers except for some exceptions (Article 8(1)); the time of acquisition of workplace subscribers is when the workplace subscribers are employed in the obligatory applicable workplace or when the workplace becomes the obligatory applicable workplace, or when the workplace subscribers become the obligatory applicable workplace, etc. (Article 11(1)); the period for which the workplace subscribers fail to pay the pension contributions at will, in violation of Article 17(2) main sentence of the National Pension Act; Article 17(1)5 of the Act, the employer is not obligated to pay the pension contributions at will from the applicable workplace to the Corporation.

The lower court determined that, in view of the following, the Plaintiff’s refusal to pay the pension premium (hereinafter “instant pension premium”) is valid when considering the fact that Article 17(2) main text of the National Pension Act provides that “in calculating the subscription period, the period during which the pension was not paid shall not be included in the calculation of the subscription period,” and that the Plaintiff’s refusal to pay the pension premium, which was incurred during the time when the Plaintiff filed a report on the acquisition of his workplace subscriber’s qualification (hereinafter “instant pension premium”), means that the insured could have a period not included in the subscription period despite having acquired the eligibility to subscribe the National Pension, and that the Plaintiff’s refusal to pay the unpaid pension premium, which was submitted by the Plaintiff, does not wish to be retroactive when calculating the subscription period, is not a waiver of the eligibility to subscribe to the National Pension.”

However, in light of the above legal principles, since the plaintiff is obligated to pay the pension premium as a matter of course from the time when he acquired the eligibility as a workplace subscriber, and cannot be said to have the right to not pay it at will, the validity of the above letter of commitment, which the plaintiff prepared from November 1, 2001, at the time of reporting after the omission of the subscription period for the national pension, that the plaintiff wishes to acquire the eligibility as a workplace subscriber and did not raise any objection thereafter, shall be deemed null and void.

Nevertheless, the court below determined that the plaintiff's expression of low-income insured period of the national pension is valid only for the reasons indicated in its holding. In so doing, the court below erred by misapprehending the law on the nature of the workplace subscriber's obligation to pay pension contributions, etc., and the ground of

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)