[1] The scope of the effect of the Constitutional Court's decision of unconstitutionality and whether the retroactive effect of the decision of unconstitutionality can be limited (affirmative)

[2] The case holding that the retroactive effect of each of the general cases filed after the Constitutional Court's decision of unconstitutionality (the first decision of unconstitutionality) with respect to Article 21 (5) 2 through 5 of the former Military Pension Act and the Constitutional Court's decision of unconstitutionality with respect to Article 21 (5) 3 of the former Military Pension Act (the second decision of unconstitutionality) does not affect the retroactive effect

[1] The effect of the decision of unconstitutionality of the Constitutional Court is that the Constitutional Court made a proposal of unconstitutionality or made a request to the Constitutional Court for the same kind of unconstitutionality before the decision of unconstitutionality is made, but the relevant law or provision of law did not make a separate request for the proposal of unconstitutionality, and not only the case pending in the court, but also the general case instituted for the above reasons after the decision of unconstitutionality is made. However, the effect of the decision of unconstitutionality is not unlimited and does not allow the restriction of the retroactive effect by other legal principles, and it is rather necessary to limit the retroactive effect of the decision of unconstitutionality in inevitable cases for the maintenance of legal stability or for the protection of trust of the parties.

[2] The case holding that the retroactive effect of the decision of unconstitutionality of a general case filed after the decision of unconstitutionality of Article 21 (5) 2 through 5 of the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 200) and Article 21 (5) 3 of the former Military Pension Act (amended by Act No. 5063 of Dec. 29, 1995) shall not extend to the case where the retroactive effect of the decision of unconstitutionality of a general case filed after the decision of unconstitutionality is recognized on the grounds that the request for the maintenance of stability in the legal system of the Military Pension established under the previous Act and the request for the protection of trust is significantly superior to that of the parties concerned, compared to the request for the specific validity of protecting their rights.

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

[1] Supreme Court Decision 2005Du5628 Decided November 10, 2005 (Gong2005Ha, 1971) Supreme Court Decision 2006Du1296 Decided June 9, 2006, Supreme Court Decision 2005Du10569 Decided June 15, 2006

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

Korea

Seoul High Court Decision 2008Nu9654 decided October 21, 2008

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The effect of the decision of unconstitutionality of the Constitutional Court is that 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 relevant law or provision of law was a premise of judgment and has been pending in the court as well as the general cases brought for the above reasons after the decision of unconstitutionality was made. However, the effect of the decision of unconstitutionality is not unlimited and does not deny that the scope of its effect cannot be limited by other legal principles, and it is rather necessary to restrict 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 Decisions 93Da42740, Oct. 25, 1994; 2005Du5628, Nov. 10, 2005, etc.).

The court below's decision 201Hun-Ga22 decided September 25, 2003 (hereinafter "the first decision unconstitutionality") that "the above provision of Article 21 (5) 2 through 5 of the former Military Pension Act (amended by Act No. 6327, Dec. 30, 200) is unconstitutional since it is recognized as legitimate based on the facts and records of the first decision citing the reasoning of the court below, that "the right to receive retirement pension is subject to protection of property rights, but the purpose of the payment suspension system is basically to preserve income after retirement pension and its nature is social security. Thus, if the income such as pension was newly created after retirement pension payment, the extent of payment can be reduced at discretion by comprehensively taking into account social and policy aspects of the nation's pension and the situation of the fund, and thus, it cannot be viewed that the above provision of the first decision unconstitutionality decision is unconstitutional since the above provision of the National Pension Act 200-Ga2 was not applied to the above institution subject to suspension of payment."

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the retroactive effect of the decision of unconstitutionality.

2. Regarding ground of appeal No. 2

As seen earlier, the Constitutional Court decided that “Article 21(5)2 through 5 of the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 200) shall be unconstitutional,” and that “Article 21(5)3 of the former Military Pension Act (amended by Act No. 5063 of Dec. 22, 2005) shall be unconstitutional.”

However, Article 21 (5) 3 of the former Military Pension Act was amended by Act No. 3587 on December 28, 1982, and Article 21 (5) 3 was completely amended by Act No. 6327 on December 30, 200, and Article 21 (5) 3 of the former Military Pension Act was completely deleted. Thus, Article 21 (5) 3 of the former Military Pension Act, which was determined as unconstitutional by the first decision of unconstitutionality, was amended by Act No. 3587 on December 28, 1982, and was deleted by Act No. 6327 on December 30, 200.

Therefore, as seen above, the second decision of unconstitutionality should be deemed to be a part of Article 21 (5) 3 of the former Military Pension Act, "before it was deleted after amendment by Act No. 3587 of December 28, 1982 and amendment by Act No. 6327 of December 30, 200." Thus, the second decision of unconstitutionality cannot be deemed to be a retroactive effect on the other cases, regardless of the fact that the second decision of unconstitutionality, which led to the decision of unconstitutionality, can be recognized as a retroactive effect on the other cases.

Although the court below did not contain some inappropriate parts in its reasoning, it is acceptable to accept the court below's decision that the retroactive effect of the second decision of unconstitutionality does not extend to the above legal principles, and there is no error in the misapprehension of legal principles as to the scope of the law subject to the decision of unconstitutionality or the retroactive effect, as otherwise alleged in the ground of appeal.

3. Conclusion

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 Young-ran (Presiding Justice)