Plaintiff (Law Firm Han-chul, Attorneys Kim Jong-ho et al., Counsel for the plaintiff-appellant)

The Minister of National Court Administration (Attorney Kim Jae-hoon et al., Counsel for the defendant-appellant)

April 2, 2013

Seoul Administrative Court Decision 2012Guhap3095 decided July 19, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's refusal to pay honorary retirement allowances to the plaintiff on January 17, 2012 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Details of the disposition;

A. The Plaintiff passed the 30th judicial examination in March 1988, and was appointed as a judicial trainee on or around March 1989, and completed the Judicial Research and Training Institute on March 1, 1991 following the two-year training period, and was appointed as a judicial officer on or around February 1, 1991, and submitted to the Defendant on or around February 28, 2010, and filed an application for the application for the payment of honorary retirement allowances while submitting the honorary retirement center to the Defendant. On February 28, 2010, the Plaintiff was 51 years old at the time of the Plaintiff’s retirement, and was 1 year until the expiration date of the period ( February 28, 201) (the Plaintiff was subject to the one-time reappointment procedure while in office, and the period of service in the Public Officials Pension Act, including the period of active duty service, was 24 years).

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 his/her retirement age, he/she may pay an honorary retirement allowance within budgetary limits,” and Article 3(4) of the Payment Rules, including the scope and amount of the honorary retirement allowance, judges and court officials who provide for the payment procedure, and honorary retirement allowances, etc. (hereinafter “instant Rules”) shall be the main text of Article 74-2(1) of the State Public Officials Act provides that “Where a judge has served for at least 20 years as a public official, he/she shall be a person who voluntarily retires from his/her retirement for at least one year before the date of his/her retirement, the period shall not exceed seven years before the date of his/her retirement, in cases where the calculation of the remaining retirement age comes first before the date of his/her retirement age, the period shall not exceed seven years.”

C. In relation to an application for the payment of the Plaintiff’s honorary retirement allowances, the Defendant paid to the Plaintiff the amount of the retirement allowances (20,703,600 won [4,260,000 x 0.81 x 0.5 x 12 months] according to the method of calculation [the amount of monthly salary (81% of the salary in salary table) x the remaining number of months of retirement] under Article 3(1) and (5) of the Rules on the calculation of the amount of the honorary retirement allowances paid to the Plaintiff.

D. Thereafter, on December 21, 201, the Plaintiff asserted that “The calculation and payment of honorary retirement allowances based on the above rule is also null and void since the main sentence of Article 3(5) of the instant Rule is contrary to the essence of the judicial term system and the principle of equality guaranteed by the Constitution, and is contrary to the delegation scope of Article 74-2 of the State Public Officials Act, and is also null and void.” Accordingly, the Plaintiff filed an application with the Defendant for the payment of honorary retirement allowances by deducting the remaining period of retirement allowances from the honorary retirement allowances of KRW 153,360,00 calculated by adding the remaining period of retirement allowances to seven years (5 years to not less than five years, and less than ten years, and the monthly salary x [60 + 60,000 x 0 x 0.5 x 60 x 60 x 84-60 / 2] under Article 74-2 of the State Public Officials Act (hereinafter “application for payment of honorary retirement allowances”).

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

[Ground for Recognition: Facts without dispute, entry of Gap evidence 1, purport of whole pleadings]

2. Whether the instant disposition is lawful

A. The parties' assertion

1) 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.

(A) The main text of Article 3(5) of the instant Rule replaces “the date of retirement age” in the calculation of the remaining period of retirement age in the case of a judge in relation to the calculation of the amount of honorary retirement allowances. However, in order to secure the independence of judicial power through the guarantee of a judge’s status, Article 105(3) provides that “the term of office of a judge who is not the Chief Justice of the Supreme Court and the Justice Justice 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. The retirement age of a judge determined by Act pursuant to Article 3(4) of the instant Rule differs from its essence. Accordingly, the foregoing provision is deemed unconstitutional and invalid against the essence of the judicial system under the Constitution.

(B) Since honorary retirement allowances under Article 74-2(1) of the State Public Officials Act are paid by a public official to retire on his own before retirement age, the main text of Article 3(5) of the instant Rule enacted upon delegation under Article 3(4) of the same Act stipulates that the amount of honorary retirement allowances shall be calculated on the basis of the remaining period of his/her term of office, not the remaining period until the retirement age, in cases of a judge, based on the remainder of his/her term of office, rather than the remaining period.

(C) 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

2) The defendant's assertion

(A) The main text of Article 3(5) of the instant Rule, which was enacted based on a broad legislative discretion regarding the specific formation of honorary retirement allowances, should be considerably unreasonable and unfair beyond the scope of reasonable discretion to the extent that the exercise of legislative discretion was unconstitutional, and thus, it cannot be implied.

(B) Voluntary retirement of judges is a voluntary choice on the ground that they can take more monetary income. The honorary retirement allowances for retired judges should be adjusted within the reasonable scope, even if compared with other career-based public officials such as Constitutional Research Institute, police officers, fire officers, and military personnel based on their terms of office or rank retirement years.

(C) The main text of Article 3(5) of the instant Rule is irrelevant to the nature of the judicial term system stipulated in the Constitution, and it is natural to pay more allowances to the remaining persons with a large term of office. On the grounds that the foregoing provision is calculated based on the remaining term of office, deeming that a retired judge is premised on deprivation of his/her status as a judge after the expiration date of the term of office due to grounds for restricting the reappointment of a retired judge is excessive. It is unreasonable to deem that there is a special reason to treat a judge who has secured additional tenure of 10 years on the sole ground that a judge is guaranteed retirement age, and that there is no special reason to treat a judge who has secured additional tenure of 10 years on the same basis that he/she is

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. Therefore, honorary retirement allowances are not social security benefits to preserve future wages to be received when he/she serves the retirement age or to ensure a stable livelihood after his/her retirement, but money (special subsidies) to be paid to his/her employee to induce early retirement and have a compensatory nature for work before his/her retirement. In addition, honorary retirement allowances have the nature of compensation for loss of income to be received continuously work or for expenses to obtain new occupation (see Supreme Court Decision 2005Da24646, Nov. 15, 2007). Accordingly, since honorary retirement allowances are unfavorable under the pretext of retirement allowance, compensation, special bonus, or other special bonus, it is not social security benefits to ensure a stable retirement age or to guarantee a stable livelihood after his/her employee’s retirement, it is relatively permissible to declare 2013Hun-Ba5, etc.

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 Acts and subordinate statutes and retires from office, even if the honorary retirement allowances are calculated differently according to the remaining length of his/her term of office at the time of his/her retirement, it cannot be said to go against

3) Whether the delegation of the parent law deviates from the limits of 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 shall voluntarily retire before retirement age, and Article 74-2(4) of the same Act delegates to the instant rule concerning the scope, amount, and payment procedure of honorary retirement allowances. In other words, each of the above provisions is the basis for paying honorary retirement allowances to a public official who voluntarily retires before retirement age. However, it is difficult to interpret that the amount of honorary retirement allowances must be calculated based on the remaining period of retirement age. Rather, it is difficult to interpret that the above provision alone has the nature of special compensation for work before retirement age. Rather, since the honorary retirement allowances have the nature of early retirement or special compensation for work before retirement, legislators recognized a broad discretion in establishing specific payment requirements, and delegates specific contents of the above Paragraph (4) to the instant rule, so even if the main sentence of Article 3(5) of the instant Rule prescribes that the amount of honorary retirement allowances should be restricted based on the remaining period of his term of office, it cannot be said that it exceeded the delegation scope of mother law.

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 before the law. No person shall be discriminated in political, economic, social, or cultural life on account of gender, religion, or social status,” thereby declaring the principle of equality. The principle of equality is a fundamental right that can require equal treatment from the State at the same time, which is the standard that the State should enact, interpret, and enforce laws, and at the same time, should not give equal treatment to the State without reasonable grounds. In addition, the principle of equality is essentially the same, and in essence, requires different treatment from the Constitution. In other words, discrimination that excludes discrimination without reasonable grounds in legislation and application of law is not contrary to the principle of equality. Accordingly, in examining whether there exists discriminatory treatment in terms of determining whether there is a violation of the principle of equality or not, and where it is deemed that there is a 8-year standard of review or decision-making in the territory of the Constitutional Court, 20-year standard of review or decision-making, 20-year standard of review or decision-making, 20-year standard of equality, should be applied.

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

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 part of 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 that the legal nature of honorary retirement allowances is granted to legislators or administrative agencies delegated by legislation in the form of specific payment requirements, methods, amount, etc. of the entitlement to honorary retirement allowances, it is reasonable to apply relaxed criteria for the examination of equality as to the provision of the above Rule.

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 by each judge, so there is a big difference in duties to guarantee or perform status compared with 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. Furthermore, in light of the legal nature of honorary retirement allowances, it is not reasonable to treat a relatively high class in light of the legal nature of honorary retirement allowances. Accordingly, even if a judge is treated disadvantageously to other public officials in career service pursuant to the main sentence of Article 3(5) of the Rules of this case,

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

(1) A statement of discrimination

Of the judges who retire at the same time, the plaintiff was at less disadvantage than the plaintiff, whose remaining term of office is less than that of the plaintiff. Such disadvantage is generated according to the application of the main sentence of Article 3 (5) of the Rules of this case, and it is not possible to consider any other disadvantage than the remaining period until the expiration of the term for the reason of disadvantageous treatment. If the expiration date comes first under the provisions of the Rules of this case, it is a question whether it is reasonable or arbitrary to place discrimination by limiting the scope of payment between the judges who retire at the same time by the remaining term of office as the retirement date.

(2) Guarantee of status of judge

A judge is a state agency in charge of judicial power among the major three powers of legislation, administration, and justice, which are the sovereignty of the State, and unlike other state agencies or their employees, is one of the independent agencies that independently judge according to conscience and in accordance with the Constitution and laws, and thus, 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 part of the independence of judges, the principle of statutory qualification of judges (Article 101(3) of the Constitution), the term system of judges (Article 105(1) through (3) of the Constitution), the legal principle of retirement age of judges (Article 105(4) of the Constitution), and Article 105(1) through (4) of the Constitution provides that disciplinary action against a judge 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) which was delegated by Article 105(4) of the Constitution provides that the retirement age of judges other than the Chief Justice of the Supreme Court and the Justice shall be 63 years of age, and Article 45-2 of the same Act provides for the reappointment and restriction of judges.

(3) Reasons for exception to the status guarantee

(A) Impeachment of Article 65 of the Constitution

According to Article 65(1) and (2) of the Constitution and Article 53(1) of the Constitutional Court Act, when a judge violates the Constitution or laws in the course of performing his duties, the National Assembly may make a decision of impeachment with the consent of at least 1/3 of all incumbent National Assembly members and with the consent of a majority of all incumbent National Assembly members, and the Constitutional Court, when the National Assembly's request for impeachment is well-grounded, the decision of dismissal of the person against whom the prosecution is made shall be made. Such impeachment proceedings are significant in that a system to protect and maintain the Constitution from the infringement of the Constitution by the administration and the judiciary, which is a system to protect and maintain the Constitution by a senior public official of the judiciary, by abuse of the power of the state agency delegated by the

On the other hand, Article 53 (1) of the Constitutional Court Act provides that "if a request for impeachment has a reason, the Constitutional Court shall order the respondent to be removed from the public office in question." On the other hand, it can be interpreted that the above provision must be automatically removed in all cases where the reason for impeachment under Article 65 (1) of the Constitution is recognized. However, if the above provision must be removed for all minor violations of the law, which correspond to the defendant's responsibility, this would be a violation of the principle of balancing legal interests. Therefore, "when a request for impeachment under Article 53 (1) of the Constitutional Court Act has reason" means not all violations of the law, but all cases of "serious violation of the law" or "whether the violation of the law is justified" itself, and therefore, it should be interpreted that the decision of impeachment has a negative influence on the order or harm to the Constitution and whether the request for impeachment has been dismissed for 204 '14 'the decision of impeachment' or 204 'the decision of the Constitutional Court should be pronounced.

(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 cases where the judge is a Justice, and the Chief Justice of the Supreme Court in cases where the judge is a judge, may order him/her

(C) The term of office of judge

From the 10-year term of office from the 10-year constitution, the 5-year term of office of judges has been stipulated in the 1962 constitution. In the 1962 constitution, the 6-year term of judges who are the Chief Justice of the Supreme Court, and the 65-year term of general judges has been stipulated in the 195-year term of office, and the 7-year term of judges has been explicitly stipulated in the 65-year term of office, but the 65-year term of judges has been stipulated in the 5-year term of office. However, in the 1972 constitution (1972 constitution), the 7-year term of retirement age has been stipulated in the 1972 constitution, the 5-year term of office is stipulated in the 1972 constitution, and the 197-year term of office is stipulated in the 1980 constitution, and the 196-year term of office has been determined by law.

The judicial retirement age system aims to maintain the judicial system by coping with the fact that physical and mental abilities decline depending on the ordinary age, and by efficiently performing the duties of judicial justice. 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 aimed at preventing 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, a judge is guaranteed a strong status guarantee to the extent that the status of a judge would not be deprived even if he/she is subject to disciplinary action without being subject to “anthracing or imprisonment without prison labor or any heavier punishment.” 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 he/she is sentenced to imprisonment without prison labor or any heavier punishment in a criminal trial, it is practically difficult 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 lack of expertise in performing his/her duties due to the decline of physical and mental capacity due to his/her aging as well as the degradation of his/her duties.

In order to resolve such contradictory situations arising from the special nature of the position of a judge, the Constitution provides for a fixed term system and a continuous term system of a judge, and guarantees the status of a judge during a fixed term of office so that the judicial independence is the top priority task, but where the term expires, it is interpreted that it is intended to secure the legality and loyalty of a judge's daily performance of duties by limiting 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 business ability. Ultimately, it is reasonable to deem that the fixed term system of a judge has the character of supplementing the above system by supplementing the deficiencies of the impeachment system of a judge who is not for limiting his/her service period until his/her retirement age, not for limiting his/her continuous performance

(4) Whether the essentially identical retired judges are discrimination

(A) As seen above, the retirement age system of judges adopted under Article 105(4) of the Constitution and the retirement age system of judges under Article 105(3) of the Constitution should be interpreted harmoniously by considering that they are in a fluent relationship with the provision on the guarantee of status of judges under Article 106 of the Constitution. Therefore, it is possible to interpret that judges employed under the term system shall not be removed from office without the sentence of impeachment or imprisonment without prison labor or a heavier punishment, and that judges shall not be subject to suspension from office, reduction of salary or other unfavorable disposition without any disciplinary action, and that judges employed on the premise of the retirement age system shall not be removed from office without the sentence of impeachment or imprisonment without prison labor or a heavier punishment, and that they shall not be subject to suspension from office, reduction of salary or other unfavorable disposition

In addition, in Article 45-2 (2) of the former Court Organization Act concerning the reappointment of a judge, the Chief Justice of the Supreme Court shall not issue an order of reappointment to a judge who is deemed to fall under any of the following subparagraphs. In addition, the form and meaning of the above provision which provides that a judge shall be reappointed unless he falls under the grounds of each subparagraph of the above Article (if a judge is unable to perform his normal duties due to his physical or mental disorder, he is unable to perform his normal duties due to his substantial poor work performance; 2. In a case where it is substantially difficult to maintain his dignity as a judge; 3. In addition, in addition to the purport of the Constitution on the retirement age system of judges and the guarantee of the status of a judge, the above reasons for disqualification of a judge's reappointment shall be limited to the extent that he is sentenced to impeachment or imprisonment without prison labor or a heavier punishment. In addition, according to Articles 3 (1) 4, 23, and 24 of the Public Officials Pension Act, a judge's automatic retirement age shall not be added to his retirement age.

Therefore, in light of the meaning and purport of the above Constitution and relevant statutes, it is reasonable to view that a judge does not mean the expiration of the term of office in a judge, and that a judge may serve at the retirement age and is guaranteed status unless there are special circumstances, such as grounds for restriction on impeachment and reappointment. Although there are time interval between the expiration date and the reappointment, it cannot be deemed that there is a difference between the former judge and the subsequent reappointed judge, i.e., the starting date of the term between the former judge and the subsequent reappointed. Even if it is viewed as above, it cannot be deemed that the appointment examination right of the Chief Justice is excluded, and it cannot be deemed that there is a conflict between the appointment examination right of the Supreme Court and the appointment examination right of the appointment, or that there is a violation of the essence of the tenure system that has a strong nature of the status guarantee, and the situation of a judge excluded

(C) In addition, the right to expectation or trust that a judge may work until the retirement age is repeated in that a judge is appointed even if he/she has a term of office under the constitutional term system, barring any special circumstances. The right to work up to the retirement age is a vested right guaranteed by the judicial retirement age system, etc. adopted under the Constitution, and the infringement or restriction may be limited to the extent that it does not violate the principle of trust protection.

(D) Ultimately, under the main sentence of Article 3(5) of the instant Rule, discrimination may arise solely on the ground that the remaining term of office is different in calculating retirement allowances among retirement judges who are able to serve on retirement age and whose status was guaranteed and whose status was essentially the same.

(5) Whether the criteria for discrimination are reasonable

(A) Degree of discrimination

In accordance with the main sentence of Article 3(5) of the Rules of this case, the honorary retirement allowances shall be paid differently according to the remaining term of office among the judges who retire at the same time; (1) in the case of the same, the period of application shall be at least six years, and the amount received shall be at least seven.4 times, in calculating the amount paid (the amount of honorary retirement allowances paid to the plaintiff of this case shall be at least 20,703,60,000 if the amount of honorary retirement allowances paid to the plaintiff of this case is calculated for one year, but the difference shall be at least 153,360,000 if the remaining period of retirement age is calculated for seven years based on the remaining period of retirement age, and the difference shall be at least 132,656,40, or

(1) In cases where the Plaintiff is the same as the Plaintiff who retired before one year (19 years of service as a judge) in which the period of active duty service is included in the period of continuous service and the period of active duty service is to be renewed twice from among the retired judges whose period of service to retirement age remains for not less than ten years and whose remaining period is identical or similar to that of retirement judges whose period of service is to be renewed twice, i.e., the period of service as a judge

(2) Where a judge retires before one year (19 years of service as a judge) after having served as a military advocate or as a public-service advocate and has more than 20 years of continuous service and more than two consecutive terms (19 years of service as a judge) the period of service as a judge from among those who have completed the Judicial Research and Training Institute, the period of service as a judge shall be between those who have served 2

(B) While there is a significant difference or significant difference between the remainder of the term as above, it cannot be deemed that there is a reasonable reason to limit the amount to the remainder of the term in calculating the honorary retirement allowances of a judge as follows:

① In light of the legislative intent of honorary retirement allowances, the term system and retirement age system of judges under the Constitution are identical in terms of a certain contribution to the guarantee of the status of judges, and not only the special incentive to induce early retirement before retirement, but also the special incentive to compensate for loss of revenues that can be received due to continuous work or expenses incurred in obtaining new occupation (only the benefits provided within budgetary limits cannot be seen as being simply a mutually advantageous benefit). In light of the legislative intent of honorary retirement allowances, it is more consistent with the legislative intent of honorary retirement allowances as above, rather than the remainder of the retirement age to be the remainder of the term of office (in the case of judges, if the term of office comes first before the retirement date, the term of office shall be deemed the date of retirement). In light of the form of the main text of Article 3(5) of the instant Rule, which provides that “Where the term of office arrives first before the retirement date, the term of office shall be deemed the date of retirement age shall also be deemed the remainder of the retirement age, but it shall be deemed that the provisions of the above Rule are based on

(2) Even if the honorary retirement allowances are able to be paid within the scope of the budget, and are formed as specific rights pursuant to the application and decision procedure for them, it is necessary to establish reasonable standards among the relevant judges in calculating the amount of payment within the scope of the budget. However, in the case of calculating the calculation standard under the main sentence of Article 3(5) of the Rules of this case, despite the fact that the number of judges who retire at the same time can receive the same or a similar amount of money based on the remaining period of retirement age, the remaining term of office can be paid differently. Such discrimination is merely due to the fact that the relevant judge retires at any time, i.e., the time of retirement, the time of retirement, and even if considering the legislative intent of the right to claim the honorary retirement allowances, there is insufficient grounds to deem such discrimination to be justifiable or reasonable. Moreover, even if considering the budget limit and the purpose of legislation of the right to claim the honorary retirement allowances, it is difficult to accept the continuous retirement and continuous retirement allowances even after receiving the retirement age until the retirement age, and thus, the payment amount may be remarkably unreasonable.

③ Although there may be some differences depending on whether the remaining term of office according to the date of commencement of appointment differs among retired judges and whether they underwent an examination of appointment, it may be deemed that there is no little consistency. However, considering these factors, it is an excessive discrimination in lack of proportionality to require a difference of about 7.4 times in terms of the amount of supply and demand, depending on the follow-up period of the remaining term of office, which arises among the same retired judges, in essence, on the grounds that the remaining term of retirement age is identical or similar for not less than 10 years since the remaining term of office is identical or similar to the remaining term of retirement age, and inasmuch as the remaining term of retirement age is essentially identical or similar to the same one among the same retired judges, the remaining term of office is over 10 years (see Supreme Court en banc Decision 2005Du1417, Oct. 29, 2007; 200

(4) Although there is a limit that honorary retirement allowances may be paid within budgetary limits, this is not only equal to that of other public officials in career service, but also may occur under the terms of office regardless of the retirement age, based on the retirement age, and if the retirement age is based, the ratio of the monthly salary, etc. of other items in the calculation method to the monthly salary, etc., which is the maximum amount guaranteed, may be reasonably adjusted by such methods as lowering the ratio of the monthly salary, etc. of other items in the calculation method, or reducing the maximum remaining period of guarantee, etc.

⑤ It cannot be deemed that a judge selects reappointment and voluntary retirement by balancing the benefits at the time of expiration of the term of office. In addition, even if a family judge is able to divide the benefits, it would rather go against the purport of voluntary retirement, such as inducing early retirement, by allowing a judge to choose to retire after reappointment by balancing the benefits.

(6) Where the retirement age is based, there occurs a discrimination based on the age among the judges whose date of appointment begins, but the retirement age is determined based on the age, and thus there exists a legislative purpose in order to alleviate or prevent the decline, repair, and tolerance of judges, and to induce early retirement before the retirement age, which is the period guaranteed to continue to work. Therefore, it is reasonable to pay life-off allowances in order according to the remaining period of the retirement age of judges and the purport of legislation of the retirement age of honorary retirement allowances.

7) According to the rules on the payment of honorary retirement allowances, etc. from among the attached Acts and subordinate statutes and the rules on the payment of honorary retirement allowances from among the honorary retirement allowances for public officials, the same term of office as that of judges in calculating honorary retirement allowances is applied to the Constitutional Research Institute. However, in the case of military personnel and police officers, the number of years for retirement from retirement is considerably different in terms of the nature of judges and duties, qualifications for appointment, appointment procedures, status guarantee, etc. However, in the case of the Constitutional Research Institute, the number of years for retirement from among the public officials, including the police and military personnel, is designed to prevent the non-contentious cases of public officials from being derived when the status guarantee of public officials, improve the opportunity for new human resources to participate in public service, and reasonably supplement and operate the system by seeking democratization of government officials, and this seems to have been prepared only for public officials in need of the rank retirement age in consideration of the nature of duties and the rank of public officials, and in principle, it cannot be deemed that there are no reasonable grounds for calculating the retirement age from the prosecutor’s office or the foregoing.

(6) Sub-determination

Therefore, in paying honorary retirement allowances to judges, the main text of Article 3(5) of the Rules of this case, which prescribes that the remaining term of office shall be preferentially applied to the remaining term of retirement age, and thus discriminates on the amount payable, by applying the same or similar retirement judges whose remaining term of office is shorter than the retirement age, due to the suspension of the remaining term of office, would result in a difference in the amount of payment between the retirement judges whose remaining term of office is shorter than the retirement age and the retirement judges whose remaining term of office is longer, or whose remaining term of office is longer than the remaining term of the reappointment examination. Furthermore, the plaintiff's case would also cause a significant difference, such as the plaintiff, and on the other hand, there is a lack of reasonable grounds or reasons to justify the difference of the above amount of payment, while it is null and void in violation of the principle of equality under the Constitution, by causing a discrimination, which is essentially without any reasonable grounds among the same retirement judges, based on the incidental circumstances

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the first instance court is just in its conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Form 5]

Judges Sung-gu (Presiding Judge)