Plaintiff (Attorney Lee Ho-ro et al., Counsel for the plaintiff-appellant)

Korea

January 30, 2008

1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The defendant shall pay 20% interest per annum to each of the designated parties listed in the separate sheet of the retirement pension to each of the designated parties listed in the separate sheet of each case, and 20% interest per annum from the day following the service of a copy of the complaint of this case to the date

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in the statements in Gap evidence 1-1, 2-2, and 2-1, 3-2, 1, 2-4-1, 2, 5-1, 2, 6-1, 2, 3, 7-1 through 33, 10-2, and 10-2.

A. Upon receipt of a retirement pension under the Military Pension Act, the plaintiff (appointed party; hereinafter referred to as the "the plaintiff") and the designated parties who were discharged from military service and retired from military service and were paid a retirement pension under the Military Pension Act, Article 21 (5) 2 and 3 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995; Amended by Act No. 6327, Dec. 30, 200); Article 4 (1) and [Attachment] of the former Enforcement Rule of the Military Pension Act (amended by Ordinance of the Ministry of National Defense No. 0643, Jan. 22, 2008); Article 4 (1) of the former Enforcement Rule of the Military Pension Act (amended by Ordinance of the Ministry of National Defense No. 0643, Jan. 22, 2008); and received remuneration or other benefits while serving

B. However, while the plaintiff and the designated parties work in the Seoul Special Metropolitan City Urban Development Corporation, the War Commemoration Service Association, the Korea Airport Corporation, the Incheon International Airport Welfare Association, the Korean Community Welfare Association, and the Independence Hall of Korea, the above legal provisions and Article 42 (2) of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 19708 of Oct. 23, 2006) were suspended each amount equivalent to half of the retirement pension.

C. However, with respect to the suspension of payment of such retirement pension, the Constitutional Court rendered a decision on September 25, 2003 that "Article 21 (5) 2 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995; Act No. 6327, Dec. 30, 200) delegates the authority to a government-invested institution or re-invested institution which is an institution subject to the suspension of payment of a retirement pension to the Ordinance of the Ministry of National Defense, and delegates the requirements and contents of the suspension of payment of a retirement pension to the Ministry of National Defense, in violation of the principle of prohibition of comprehensive delegation under the Constitution, and on the same ground, Article 21 (5) 3 through 5 of the same Act (hereinafter referred to as the "decision of unconstitutionality of the First Military Pension Act").

D. After the first unconstitutional decision of this case, the Defendant paid the entire retirement pension to the Plaintiff and the designated parties from October 2003, and the Plaintiff and the designated parties filed an application with the Defendant for the return of each amount indicated in the list of the unpaid retirement pension that suspended payment between the time of payment suspension of the retirement pension and September 2003, but the Defendant rejected the return of the unpaid retirement pension to the effect that there is no retroactive effect of the decision of unconstitutionality decision of this case.

E. After that, on December 22, 2005, the Constitutional Court rendered a decision that Article 5(5)3 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995) is unconstitutional for the same reason as the first decision of unconstitutionality (hereinafter “the second decision of unconstitutionality”).

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

(1) The Constitutional Court rendered a decision of unconstitutionality on September 25, 2003 with respect to Article 21 (5) 2 through 5 (hereinafter “the first unconstitutional provision of this case”) of the former Military Pension Act (amended by Act No. 5063 of Dec. 29, 1995, and amended by Act No. 6327 of Dec. 30, 200) shall have a retroactive effect on the general cases brought after the decision of unconstitutionality. Thus, the defendant shall have a duty to pay each amount stated in the purport of the claim to the plaintiff and the selection.

(2) Even if the retroactive effect of the decision of the first unconstitutionality of the instant case on December 22, 2005, the Constitutional Court rendered a decision of the second unconstitutionality of the instant case against the Military Pension Act (amended by Act No. 5063, Dec. 29, 1995) (hereinafter “the second unconstitutional provision”) (hereinafter “the second unconstitutional provision”) in the instant case on December 22, 2005. Since the instant lawsuit was filed on August 10, 2004, which was the second unconstitutional decision prior to the second unconstitutional decision, the Plaintiff and the designated parties did not file an application for the second unconstitutionality decision, but since the pertinent law or the pertinent provision was based on the premise of the trial, and thus, it affect the second unconstitutional decision of the instant case on August 10, 2004.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Determination as to whether the retroactive effect of the decision of the first unconstitutionality of this case also affects this case

The effect of the decision of unconstitutionality of the Constitutional Court is that the Constitutional Court made a request for adjudication of unconstitutionality or made a request for adjudication of unconstitutionality of the same kind before the decision of unconstitutionality was made, but the relevant law or provision of law was a premise of judgment and has been pending in the court as well as the general cases filed for the above reasons after the decision of unconstitutionality was made. However, the effect of the decision of unconstitutionality is not unlimited, and it is not limited to that of restrictions on the retroactive effect 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 to protect the trust of the parties (see Supreme Court Decision 2006Du279, Jun. 15, 2006, etc.).

As seen earlier, since the payment of the amount equivalent to 1/2 of the retirement pension to be paid to the Plaintiff and the designated parties under the Urban Development Corporation in Seoul Special Metropolitan City is suspended when the Plaintiff and the designated parties were retired from active service and were paid a retirement pension under the Military Pension Act, and the purpose of the first decision of unconstitutionality is to “the right to receive retirement pension is basically protected as a whole, but its purpose is to preserve income loss and social security. Therefore, if the income, such as wages, etc., was newly generated after the retirement pension, it would be possible for legislators to reduce the level of payment to be unconstitutional in principle, taking into account the social policy aspect, the state’s financial situation, etc., and the first decision of unconstitutionality to exclude the Plaintiff from the above unconstitutional decision of unconstitutionality because the first decision of unconstitutionality was made based on the provision on the selection requirements and contents of organizations subject to retirement pension payment suspension and payment suspension, the first decision of unconstitutionality cannot be deemed to have been made based on the above unconstitutional decision of unconstitutionality.”

(2) Determination as to whether the second unconstitutional decision of this case also affects this case

㈎ 먼저 이 사건 2차 위헌결정은 구 군인연금법(1988. 12. 29. 법률 제4034호로 개정된 것으로, 1995. 12. 29. 법률 제5063호로 개정되기 전의 것) 제21조 제5항 제3호 에 대하여 이루어진 것인데, 원고 및 선정자들에 대한 퇴역연금 지급정지기간이 빨라도 1999. 1.경부터 시작되는 점에 비추어 원고 및 선정자들에 대하여는 이 사건 2차 위헌법률조항이 적용되지 아니하고 이 사건 1차 위헌법률조항이 적용되는 것으로 보이므로, 이 사건 2차 위헌법률조항에 대한 위헌결정의 효력은 이 사건에는 미치지 않는다고 할 것이다.

㈏ 나아가 헌법재판소가 위헌결정을 선고하게 되면 그 법률조항은 헌법재판소법 제47조 제2항 에 따라 결정이 있는 날로부터 효력을 상실한다 할 것이고, 따라서 이 부분의 위헌여부는 더 이상 위헌여부심판의 대상이 될 수 없다 할 것이다( 1994. 8. 31. 선고 91헌가1 결정 , 1989. 9. 29. 선고 89헌가86 결정 등 참조).

Article 21(5)2 through 5 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995; Act No. 6327, Dec. 30, 200); Article 21(5)3 of the same Act (amended by Act No. 4034, Dec. 29, 198; Act No. 5063, Dec. 29, 1995); Article 21(5)3 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995; Act No. 5063, Dec. 3, 1995; Act No. 5063, Dec. 29, 1995; Act No. 5063, Dec. 29, 200; Act No. 5519, Dec. 3, 1994>

In light of the above, the binding force of the first decision of unconstitutionality of this case extends to the second decision of unconstitutionality of this case. Thus, the second decision of unconstitutionality of this case is merely a re-verification of the same legal provision which has already been declared unconstitutional by the first decision of unconstitutionality of this case and has already lost its validity as to the same legal provision which has already lost its validity. Although the lawsuit of this case was filed before the second decision of unconstitutionality of this case, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment Appellant List and List of Unpaid Retirement Pension]

Judges Kim Yong-ho (Presiding Judge)