Plaintiff (Attorney Kim Jin-young, Counsel for the plaintiff-appellant)

The Government Employees Pension Service

November 12, 2013

Seoul Administrative Court Decision 2010Guhap34217 decided January 6, 2011

1.The judgment of the first instance shall be modified as follows:

A. Of the instant lawsuit, the part of the Defendant’s claim for revocation of the disposition of recovery of limited pension against the Plaintiff on January 29, 2010 is dismissed.

B. The Defendant’s disposition of restricting benefits against the Plaintiff on January 29, 2010 is revoked.

2. All costs of the lawsuit shall be borne by the defendant.

The judgment of the first instance shall be revoked.

On January 29, 2010, the Defendant revoked a disposition to recover limited pensions and a disposition to restrict benefits against the Plaintiff respectively.

1. Restriction on benefits and restitution disposition and decision of unconstitutionality;

The following facts are either in dispute between the parties, or in each description and image of Gap evidence of Nos. 1 through 4, 8, and Eul evidence of No. 1 to 4 (including paper numbers).

[1]

○ Plaintiff was in office as a state public official in the National Science Museum belonging to the Ministry of Education, Science and Technology, and submitted the honorary retirement on March 1, 2009, and received the honorary retirement certificate on March 17, 2009 (the scheduled date of voluntary retirement April 30, 2009) and voluntarily retired on April 30, 2009.

On August 11, 2009, in violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.), etc., the ○○ Plaintiff was sentenced to a two-year suspended sentence in six months of imprisonment with prison labor, and on August 19, 2009, the said judgment became final and conclusive on August 19, 2009.

[2]

On the other hand, on March 29, 2007, the Constitutional Court rendered a ruling of inconsistency with the Constitution to the effect of Article 64 (1) 1 of the Public Officials Pension Act (amended by Act No. 9905 of Dec. 31, 2009, hereinafter referred to as the "former Act") in the case of 2005HunBa33 against Article 64 (1) 1 of the former Public Officials Pension Act (amended by Act No. 9905 of Dec. 31, 2009, hereinafter referred to as the "former Act") that "Article 64 (1) 1 of the Public Officials Pension Act (amended by Act No. 5117 of Dec. 29, 1995) is inconsistent with the Constitution."

The legislative deadline for the decision of inconsistency with the Constitution of ○ was the only time limit for the legislation, and accordingly, Article 64(1)1 of the former Act was invalidated from January 1, 2009.

From May 2009 to December 2, 2009, the Defendant paid to the Plaintiff the full amount of KRW 16,504,000 for retirement pension and KRW 53,418,960 for retirement allowances, to which Article 64(1)1 of the former Act does not apply to the benefit restriction provisions.

[3]

In accordance with the decision of inconsistency with the Constitution of the Republic of Korea, Article 64(1)1 of the former Act was amended by Act No. 9905 on December 31, 2009. The main contents of the amended Public Officials Pension Act (hereinafter “New Act”) are as follows.

- Article 64, Paragraph 1, 1;

"Where a person is sentenced to imprisonment without labor or heavier punishment due to any reason during his/her employment, part of the retirement benefits and retirement allowances shall be reduced and paid: Provided, That "where he/she is due to negligence not related to his/her duties or due to negligence in compliance with the legitimate order of his/her superior" shall be

Article 1 of the Addenda;

This Act shall enter into force on the first day of the month following the month in which the date of its promulgation falls: Provided, That the amended provisions of Article 64 shall enter into force on January 1, 2009.

- Paragraph 1 of Article 7 of the Addenda;

The payment of benefits that occurred before this Act enters into force shall be governed by the previous provisions: Provided, That the amended provisions of Article 64 shall also apply to the payment of retirement pension and early retirement pension received by a retirement pension or early retirement pension recipient on or after January 1, 2009 and retirement benefits and retirement allowances that have occurred after January 1, 2009.

Pursuant to Article 64(1)1 of the New Act, the proviso of Article 1 of the Addenda, and the latter part of Article 7(1) of the Addenda, the Defendant issued a restriction on benefits (hereinafter “instant restriction on benefits”) with the purport that on January 29, 2010, the Plaintiff paid the Plaintiff in full from September 2009 to December 209, 209, KRW 4,126,00 corresponding to KRW 1/2 of the retirement pension paid in full, and KRW 26,709,480 corresponding to KRW 1/2 of the retirement pension paid in full (hereinafter “instant redemption disposition”), and KRW 30,835,480 of the retirement pension paid in full (hereinafter “instant redemption disposition”), and the payment of retirement pension from January 2010 to KRW 1/2 of the △△△△△ (hereinafter “instant restriction on benefits”).

[4]

○ The Plaintiff filed the instant lawsuit seeking revocation of the instant disposition with the Seoul Administrative Court, and filed a petition for adjudication on constitutional complaint with respect to Article 64(1)1 of the New Act, the proviso of Article 1 of the Addenda of the New Act, and Article 7(1) of the Addenda of the New Act during the proceeding of the first instance trial, but filed a petition for adjudication on constitutional complaint with the Constitutional Court (201Hun-Ba36, Feb. 16, 201) on January 6, 2011, which was dismissed by the said court.

On August 29, 2013, the Constitutional Court rendered a decision of unconstitutionality with respect to Article 64(1)1 of the new Act in a case involving a unconstitutional suit, including a 2011Hun-Ba36, and rendered a decision of unconstitutionality with respect to the proviso of Article 1 of the Addenda to the new Act, and the latter part of Article 7(1) of the Addenda to the new Act (hereinafter “instant decision of unconstitutionality”).

2. The part concerning the claim for revocation of the restitution

A. The defendant's main defense

After the decision of unconstitutionality of the instant case was rendered, the Defendant revoked the restitution disposition of the instant case and returned the amount recovered from the Plaintiff to the Plaintiff, and thus, the part on the claim for revocation of the restitution disposition of the instant lawsuit

B. Determination

An appeal suit seeking the revocation of an administrative disposition is to restore the right which becomes impossible to enjoy by an illegal administrative disposition. As such, in a case where an administrative agency voluntarily cancels a disposition and an illegal administrative disposition is removed, the validity of the disposition is not to be denied again. An appeal suit seeking the revocation is without a benefit of lawsuit.

In full view of the purport of evidence No. 7 and the purport of the entire argument in the statement of evidence No. 7, the defendant, after the decision of unconstitutionality of this case was rendered, can be acknowledged that the defendant returned KRW 31,098,750, which added interest to KRW 30,835,480, which was recovered from the plaintiff, to the plaintiff while revoking the restitution disposition of this case on November 5, 2013. As such, the part of the claim for revocation of the restitution disposition of this case among the lawsuit of this case is unlawful as there is no benefit of lawsuit.

3. Part on the claim for cancellation of the benefit limitation disposition;

A. The plaintiff's assertion

The Constitutional Court Decision 201Hun-Ba36 rendered a decision of unconstitutionality on the instant case, which was rendered by the Plaintiff in the Constitutional Court Decision 201Hun-Ba36, and thus retroactively applied to the instant case, which was the instant case. Prior to the said decision, Article 64(1)1 of the former Act became null and void as of December 31, 2008 due to the inconsistency with the Constitution prior to the said decision, and the Plaintiff’s retirement pension ground was made before the National Assembly enacted an improvement legislation at April 30, 2009, and there was no provision that limits the Plaintiff’

Therefore, the instant disposition that the Defendant paid the Plaintiff’s retirement pension from January 2010 to 1/2 by retroactively applying Article 64(1)1 of the New Act is unlawful.

B. Determination

(1) Effect of the decision of unconstitutionality of this case

As seen above, the decision of unconstitutionality of this case was rendered in the Constitutional Court Decision 2011HunBa36 decided on the ground that Article 1 of the Addenda to the new law, which is the premise of the trial during the proceeding of this case, and the latter proviso of Article 7 (1) of the Addenda to the new law, the Plaintiff claimed that the

According to the decision of unconstitutionality of this case, the proviso of Article 1 of the Addenda to the new law and the latter part of Article 7 (1) of the Addenda to the new law, in principle, lose its effect from the date when the decision of unconstitutionality is made (Articles 75 (6), 68 (2), and 47 (2) of the Constitutional Court Act). The effect of the decision of unconstitutionality of this case is retroactively applied to the case in which the decision of unconstitutionality was made (see Supreme Court Decision 2001Da48781, Jul. 24, 2003, etc.).

Therefore, in this case, the new law shall enter into force on January 1, 2010, the first day of the month following the month in which the date of its promulgation falls, and the payment of benefits arising before the enforcement of the new law shall be governed by the main text of Article 1 of the Addenda of the new law and Article 7(1) of the Addenda of the new law, which provides that the payment of benefits arising from the cause of payment

(2) Time when the cause of payment occurred

According to the Public Officials Pension Act, the long-term benefits under Article 42 shall be paid for the retirement, disability, and death of public officials (Article 25), the retirement benefits (retirement Pension, lump-sum retirement pension, etc.), disability benefits (Disability pension, disability compensation), survivor's benefits (Survivor's pension, survivor's pension, bereaved family's pension, etc.), and retirement allowances shall be paid (Article 42). Of such long-term benefits, the amount of benefits shall be paid from the month following the month in which the cause for the payment of benefits occurred to the month in which the cause for the payment of benefits terminates to the month in which the cause for the payment of benefits terminates (Article 43(1) main sentence), and the calculation of benefits shall

Considering that the Public Officials Pension Act stipulates the grounds for the payment of long-term benefits as above, and the payment time of benefits and the standard monthly income of benefits are determined on the basis of the date on which the grounds for the payment of benefits occurred, the term “reasons for payment” under the main sentence of Article 7(1) of the Addenda to the Public Officials Pension Act means the retirement, disability and death of a public official, who is a cause for payment under Article 25 of the Public Officials Pension Act, and Articles 43(1) and 27(1) of the same Act.

Therefore, Article 7 (1) of the Addenda to the new Act in relation to retirement pension refers to the case where a public official retires before January 1, 2010, which is the enforcement date of the new Act (Article 46 (1) of the Public Officials Pension Act, the starting point of the payment of retirement pension is different from the starting point of retirement, but it is merely a provision of the starting point of the actual payment of pension paid every month, and it cannot be deemed that the starting date of the payment of retirement pension under the above provision has been changed to the starting point of each subparagraph of Article 46 (1) of the Act).

Thus, "previous provision" referred to in the main sentence of Article 7 (1) of the Addenda to the new law refers to the provision that applies at the time of retirement of a public official, who is at the time when the ground for payment occurred.

(3) The plaintiff's retirement pension

As seen above, the retirement date of the Plaintiff, which is the date when the ground for payment occurred in the Plaintiff’s retirement pension, is April 30, 2009, and this is before the enforcement of the new law. As such, the Plaintiff’s retirement pension shall be paid according to the provisions that was enforced at the time of the Plaintiff’s retirement under the main text of Article 1 of the Addenda of the new law and Article 7(

However, at the time of April 30, 2009, when the Plaintiff’s retirement date, Article 64(1)1 of the former Act became invalid as of January 1, 2009, and Article 64(1)1 of the former Act became effective as of January 1, 2009. Thus, the Plaintiff’s retirement pension cannot be applied with respect to the benefit restriction provisions under Article 64(1)1 of the former Act and Article 64(1)1 of the former Act.

In addition, since the monthly retirement pension paid by the Defendant to the Plaintiff is merely the Defendant’s obligation under the content of the Plaintiff’s claim for retirement pension that occurred due to the Plaintiff’s retirement, and there is no new ground for payment of retirement pension at each retirement pension payment date that arrives every month, as long as the provision on payment restriction cannot be applied to the Plaintiff’s retirement pension, it cannot be deemed that the provision on payment restriction under Article 64(1)1 of the new Act applies to the payment of retirement pension that arrives after January 1, 2010, which is the enforcement date

Therefore, even if the Plaintiff was sentenced to imprisonment without prison labor or a heavier punishment for the reason that he/she was in office, the retirement pension to be paid to the Plaintiff on the basis of Article 64(1)1 of the former Act or Article 64(1)1 of the new Act cannot be reduced. Thus, the instant provision on the ground that the payment of the Plaintiff’s retirement pension from January 2010 to 1/2 is unlawful on the ground that there is no legal basis.

4. Conclusion

Therefore, the part of the lawsuit of this case concerning the claim for cancellation of the recovery disposition of this case is dismissed as it is unlawful, and the plaintiff's claim seeking cancellation of the benefit restriction disposition of this case is accepted as it is reasonable, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition by the court of first instance as above.

Judicial Enforcement Decree of Judges (Presiding Judge)