[1] Measures to be taken by the court in a case where the standing to be a party suit in relation to a legal relationship under public law, and the plaintiff's filing of a party suit without intention or gross negligence

[2] In a case where the amount of honorary retirement allowances already received by a judge does not exceed the reasonable amount of allowances under Article 4 [Attachment Table 1] of the former Rules on Payment, such as honorary retirement allowances for judges and court officials, and the Minister of National Court Administration expresses his/her intent to refuse to pay the difference, whether the above declaration of intention can be deemed an administrative disposition (negative)

[3] Whether it violates the principle of equality to allow a judge to calculate the amount of honorary retirement allowances, not based only on the remaining retirement age, but also on the remaining remaining period of his/her term of office, in addition to the remaining period of his/her retirement allowances, etc. (negative)

[1] In a party’s lawsuit as to legal relations under public law, one party to such legal relations shall be the defendant (Article 3 subparag. 2 and Article 39 of the Administrative Litigation Act). However, in a case where the plaintiff files a lawsuit as a party’s lawsuit without intention or gross negligence, erroneously files a lawsuit as an appeal litigation, barring cases where the requirements for the lawsuit as a party’s lawsuit are satisfied and it is obvious that the requirements for the lawsuit as a party’s lawsuit are satisfied, so long as it is not unlawful, the court shall deliberate and determine the plaintiff’s lawsuit by having the party’s lawsuit altered

[2] Article 74-2(1) and (4) of the former State Public Officials Act (amended by Act No. 11489, Oct. 22, 2012); Article 3(1) and (2), Article 7, and Article 4 [Attachment Table 1] of the former Rules on Payment of Honorary Retirement Allowances, etc. (amended by Supreme Court Rules No. 2320, Jan. 31, 201; hereinafter “Rules on Honorary Retirement Allowances”) concerning the determination of persons eligible for voluntary retirement allowances and calculation of allowances, etc., may only be paid in cases where the defendant is determined as the person eligible for voluntary retirement allowances after a certain examination. However, since the standard for calculating the amount of allowances to a judge determined as the person eligible for voluntary retirement allowances is merely the right to receive the amount of voluntary retirement allowances calculated in accordance with the above provision, the above judge has a specific right to receive the amount of voluntary retirement allowances calculated in accordance with the legal relations among the applicants for voluntary retirement allowances, who are the party to the voluntary retirement allowances. Therefore, even if the above judge is already aware of the amount of an administrative disposition.

[3] Comprehensively taking account of various circumstances pertaining to the discretion of the system of voluntary retirement, the criteria for calculating the amount of voluntary retirement allowances of judges, the judges’ tenure system under the Constitution, the voluntary retirement of judges, and the result according to the addition of the number of years of service during the period of service, etc., it shall not be deemed to violate the principle of equality by arbitrarily discriminatinging the retired judges at the same time without any reasonable grounds to calculate the remaining term of office by reflecting the amount of voluntary retirement allowances of judges under the main sentence of Article 3(5) of the former Rules on Payment (amended by Supreme Court Regulation No. 2320, Jan. 31, 201) on the basis of broad discretion on the formation of entitlement to voluntary retirement allowances of judges and court officials, etc.

[1] Articles 3, 21, and 39 of the Administrative Litigation Act / [2] Articles 74-2 (1) and (4) (see current Article 74-2 (5)) of the former State Public Officials Act (Amended by Act No. 11489, Oct. 22, 2012); Articles 3 (1), (2), 4 [Attachment Table 1], and 7 of the former Rules on Payment (Amended by Act No. 2320, Jan. 31, 201); Articles 11 (1), 105 (3) of the Constitution of the Republic of Korea; Article 74-2 (4) (5) of the former State Public Officials Act (Amended by Act No. 11489, Oct. 22, 2012); Article 3 (1) and (3) of the former Rules on Payment (Amended by Act No. 113213, Dec. 31, 2011>

[1] Supreme Court Decision 97Da42250 delivered on November 26, 199 (Gong2000Sang, 14) / [2] Supreme Court Decision 2004Du244 delivered on July 8, 2004 (Gong2004Ha, 1352)

Plaintiff (Law Firm Dong LLC, Attorneys Kim U-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)

Seoul High Court Decision 2012Nu24469 decided June 27, 2013

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

1. The decision shall be made ex officio;

A. (1) In a party’s lawsuit relating to a legal relationship under public law, one party to the legal relationship shall file a lawsuit with the defendant (Article 3 subparag. 2 and Article 39 of the Administrative Litigation Act): Provided, That in a case where the plaintiff files a lawsuit as a party’s lawsuit with an appeal litigation without intention or gross negligence, where the plaintiff misleads that he/she should file a lawsuit as a party’s lawsuit without intention or gross negligence, barring cases where the requirements for the lawsuit as a party’s lawsuit are clearly satisfied and thus becomes illegal, the court shall have the plaintiff make a trial and determination by requiring the plaintiff to make a change into a party’s lawsuit (see Supreme Court Decision 97Da4250, Nov. 26, 199, etc.).

(2) Article 74-2 of the former State Public Officials Act (amended by Act No. 11489, Oct. 22, 2012; hereinafter “State Public Officials Act”) provides that a public official who has served for at least 20 years may be paid honorary retirement allowances within budgetary limits if he/she voluntarily retires before his/her retirement age (Article 1); and matters necessary for the scope of eligible recipients, payment amount, payment procedure, etc. shall be determined by the Supreme Court Regulations, etc. (Article 4). According to the former Rules on Payment, such as the former Judicial Officers and the court public officials, etc., enacted upon delegation (amended by Act No. 2320, Jan. 31, 201; hereinafter “Rules on Honorary Retirement Allowances”), a certain judge, public official in general service or technical service, may be eligible for voluntary retirement allowances (Article 3(1)); if inevitable, the Defendant may limit the scope of those eligible for voluntary retirement allowances if he/she has received the remaining retirement age for at least 7 months after the lapse of the budget (Article 14).

In light of the contents and purport of the relevant Acts and subordinate statutes concerning the determination of persons eligible for the honorary retirement allowances and the calculation of the amount of allowances, etc., the honorary retirement allowances may be paid only when the defendant decided as persons eligible for the honorary retirement allowances after a certain examination from among the applicants for the honorary retirement allowances, but since the amount of allowances to be paid to a judge determined as persons eligible for the honorary retirement allowances is set in Article 4 [Attachment Table 1] of the Rules on the Voluntary Retirement Allowances, the above judge has a specific right to receive the honorary retirement allowances calculated in accordance with the reasonable calculation criteria prescribed in the above provision. Therefore, even if the above judge alleged that the amount of allowances already received falls short of the legitimate amount of the honorary retirement allowances under the above provision and expressed his/her intent to reject the application for the payment of the difference, such expression of intent cannot be deemed an administrative disposition merely because the defendant expressed his/her opinion on the existence and scope of the obligation to pay the amount of the honorary retirement allowances as a party to the legal relationship under public law, rather than an administrative disposition. Ultimately, the right to receive the unpaid amount of the honorary retirement allowances, is a right in public law lawsuit against the State.

B. According to the reasoning of the lower judgment and the record, the Plaintiff was appointed as a judge on March 1991 and was determined as eligible for honorary retirement allowances on February 28, 2010, and the Plaintiff received KRW 20,703,60 on the premise that the remaining term of office is one year, and the Plaintiff filed a lawsuit seeking revocation on the premise that the remaining term of office is one year. On January 2012, 2012, the Plaintiff asserted that Article 3(5) main sentence of the Rules on the Voluntary Retirement Allowances the lawful amount of honorary retirement allowances is null and void and that the legitimate amount of voluntary retirement allowances is KRW 153,360,000, and filed an application seeking payment of the difference between the amount already received to the Defendant (hereinafter “instant difference”). The Defendant notified that the instant difference cannot be paid on January 17, 2012 (hereinafter “instant notification”). The Plaintiff filed a lawsuit seeking revocation on the premise that the Defendant’s instant notification was an administrative disposition.

C. Examining these facts in light of the legal principles as seen earlier, the Defendant’s instant notification is not an administrative disposition, and the Plaintiff was unable to file an appeal against the Defendant, and had the Plaintiff filed a party suit seeking the payment of the difference in the instant case against the State. However, in light of the relief of rights or the aspects of the litigation economy, it is reasonable to have the Plaintiff have an opportunity to change the lawsuit into a party suit. Therefore, the lower court should have properly exercised the right of explanation as to whether to change the instant case into a party suit in an appeal litigation, thereby having the form

D. Nevertheless, the lower court did not take the aforementioned procedure and determined on the merits on the premise that the instant lawsuit is lawful as an appeal litigation. In so determining, it erred by misapprehending the legal doctrine on party litigation, etc., thereby failing to exhaust all necessary deliberation and procedures, thereby adversely affecting the conclusion of the judgment.

2. Furthermore, the grounds of appeal are examined.

A. Article 3(1) of the Rules on Voluntary Retirement under the delegation of Article 74-2(4) of the State Public Officials Act provides that “A judge eligible to receive voluntary retirement allowances shall have served for at least 20 years as a judge except for “a judge with at least the chief judge of a high court, or a judge with at least 16 salary grade,” and Article 74-2(5) of the State Public Officials Act provides that “Where a judge calculates the remainder of retirement age before the date of his/her retirement, the term of validity shall be deemed the date of his/her retirement: Provided, That in cases of a judge, the term shall not exceed seven years, and the term of validity shall not exceed seven years (Article 3(5) main sentence of the Rules on Voluntary Retirement Allowances).”

Accordingly, the amount of honorary retirement allowances under the criteria for calculation under Article 4 [Attachment Table 1] of the Rules on honorary retirement allowances shall be calculated by multiplying the half of the monthly salary at the time of retirement of a judge by the total or partial number of remaining months according to the remainder of the term within the remainder of the retirement age, and the remainder of the term shall not exceed seven years.

B. On the grounds indicated in its reasoning, the lower court determined that the instant notification was as follows.

(1) The main purpose of the honorary retirement allowances system is to induce a public official to retire before the retirement age to promote the believers of an organization. On the other hand, the guarantee of a judge’s status through a fixed term system is basically a guarantee of a judge’s status through a system that is not removed without impeachment or a sentence of imprisonment without prison labor or a heavier punishment during his/her term of office. In cases of a judge who voluntarily renounces his/her status guaranteed under the Constitution and Acts and subordinate statutes and retires, even if the honorary retirement allowances are calculated differently according to the remaining term of office at the time of his/her retirement, it does not go against the essence of the

(2) However, in light of the Constitution and relevant laws and regulations regarding the reappointment of a judge, the expiration of the term of office does not mean the expiration of the term of office guarantee, and barring special circumstances, such as the occurrence of grounds for impeachment or postponement of the term of office, the status of a judge is maintained and his status is guaranteed, and a judge has the right to expectation or trust to work up to the retirement age by repeating the term of office. However, the main text of the instant provision, which applies the remainder of the term based on the calculation to a judge, prior priority over the remainder of the retirement age as a basis for the calculation, to differentiates the amount of payment by applying the remainder of the term of office to a judge, prior to the retirement age remaining after the remainder of the remaining term of office, between a retirement judge with the same or similar remaining term of office, brings about a difference in the amount of payment between a retirement judge and a retirement judge whose remaining term of office is shorter or the remaining term of office is longer renewed, and thus, the aforementioned difference in the amount of payment in active duty service, military advocate and a public-service advocate is unlawful in essence of the principle of equality.

C. However, we cannot agree with the judgment of the court below for the following reasons.

(1) An honorary retirement allowance under the State Public Officials Act is a system to provide a public official with high-quality administrative services by promoting a new ambassador of the organization of public officials and improving the efficiency thereof through strict requirements when a public official’s status terminates before his/her retirement age reaches the retirement age. Ultimately, the legislators are allowed to relatively broad discretion for establishing specific payment requirements, methods, amount, etc. of the entitlement to honorary retirement allowances (see, e.g., Supreme Court en banc Decision 2005Da24646, Nov. 15, 2007; Constitutional Court en banc Decision 2001Hun-Ba55, Dec. 18, 2002; Constitutional Court en banc Decision 2010Hun-Ba93, Nov. 25, 2010; Constitutional Court en banc Decision 2010Hun-Ba93, Nov. 25, 2010); and a broad discretion on the formation of entitlement to honorary retirement allowances is recognized as well as the Supreme Court Decision 7-24(4) of the State Public Officials Act.

In addition, the principle of equality, based on Article 11(1) of the Constitution, prevents a person from arbitrarily treating the same in essence. It refers to a relative equality that does not mean an absolute equality that denies any discriminatory treatment, but rather does not constitute a discrimination that does not have any reasonable grounds when enacting and applying the law. Thus, discrimination or inequality based on reasonable grounds does not go against the principle of equality (see, e.g., Supreme Court Decisions 99Do2309, Oct. 12, 199; 2005Du1417, Oct. 29, 2007).

(2) For a judge to be eligible for honorary retirement allowances, a person who has served for not less than 20 years pursuant to Article 3 of the Rules on Voluntary Retirement Allowances shall not be eligible for a judge of high court or of not less than 16 or a judge of not less than 16. ③ Voluntary retirement shall meet the requirements for voluntary retirement during not less than one year before the date of retirement (in the case of the expiration of the term of office prior to the expiration of the term of office), in addition to the period of his/her service as a judge, he/she shall be determined according to the period of his/her service as a public official, soldier, etc., who is added up pursuant to Article 23(1) through (3) of the Public Officials Pension Act, and the salary grade shall be determined to be gradually higher-ranking salary grade if he/she has served as a judge for a certain period pursuant to Articles 2 and 2-2 of

However, according to the main text of the instant provision, even if different terms, such as the number of years of continuous service and age, are identical to those of the retired judge, if the point of time and the period of continuous appointment vary due to military service, etc., if the remaining terms of office are different, the amount of voluntary retirement allowances calculated pursuant to the main sentence of the instant provision shall be different.

(3) However, in light of the permission of broad discretion on the formation of entitlement to honorary retirement allowances, it is difficult to deem that the calculation of honorary retirement allowances is reasonable even if it is determined to determine the amount of voluntary retirement allowances by reflecting all various standards to be recognized as eligible for voluntary retirement allowances, in light of the number of years of service, retirement age, remaining period of retirement due to the time of retirement, and remaining term of office, which is determined depending on whether a person is eligible for voluntary retirement allowances, including the period of service

Even if the amount of honorary retirement allowances is calculated according to different standards, such as retirement age, except for the term of office, there is an inevitable difference within a certain range, such as whether to be eligible for honorary retirement allowances or the amount of honorary retirement allowances, depending on the difference in the age, timing of appointment, etc. of retired judges, and this is also the same for judges who completed the same period

(4) The Constitution provides that a judge shall make an independent inquiry according to his conscience and in accordance with the Constitution and laws (Article 103), and that a judge’s term of office shall be ten years, and that a judge may be reappointed within the age of retirement as prescribed by law (Article 105(3)). Furthermore, a judge shall not be removed from office without an impeachment or a sentence of imprisonment without prison labor or a heavier punishment, and a judge shall be allowed to retire from office under the conditions as prescribed by Act when he is unable to perform his duties due to a serious mental or physical impairment (Article 106).

Accordingly, Article 45(3) of the former Court Organization Act (amended by Act No. 10861, Jul. 18, 201) allows a judge to be reappointed for a ten-year term and the term of office expires. Furthermore, Article 45-2 provides that a judge shall be reappointed by an order of reappointment of the Chief Justice with the consent of the Supreme Court Justices’ Council (Paragraph 1), and Article 45-2 provides that “Where a judge is unable to perform his/her normal duties as a judge due to physical or mental disorder (Paragraph 1); where a judge is unable to perform his/her normal duties as a judge due to his/her substantially poor work performance (Paragraph 2); where it is substantially difficult to maintain his/her dignity as a judge (Paragraph 3), he/she shall be excluded from reappointment.”

As such, the Constitution prescribes the term of office of a judge 10 years, and guarantees that a judge may independently render a judgment by restricting the removal, disciplinary action, and retirement during his/her term of office. After his/her term of office, the remaining term of office shall vary depending on the time of appointment and reappointment of a judge, as long as the term of a judge is determined. Furthermore, voluntary retirement, which is the requirement for voluntary retirement, is a waiver of status guaranteed under the Constitution and laws, and the remaining term of office shall be determined by voluntary retirement and its time. In light of the foregoing, the lower court’s determination that, even if a person eligible for voluntary retirement from office is determined according to the remaining term of office at the time of the judge’s retirement and the amount of allowances is determined differently, cannot be said to be contrary to the essence of the judicial system under the Constitution, and it cannot be concluded that the standard for calculating the amount of voluntary retirement from office is based on the main sentence of this case, reflecting the remaining term of office of a judge or remaining term of office under the Constitution, and it cannot be determined differently solely on the grounds that the remaining term of a judge’

(5) The lower court cited the difference arising from the system of adding up the years of active duty service among similar judges, which violates the principle of equality. However, even if the period of active duty service is less than 20 years as the period of active duty service added up to the years of continuous duty service, if the period of active duty service can be recognized as the person eligible for voluntary retirement, this would be more given the opportunity to receive voluntary retirement allowances than other judges, such as the period of active duty service, and thus, the sum of the years of active duty service cannot be considered to be disadvantageous to the relevant judge. Moreover, as seen earlier, insofar as the judge voluntarily retired can avoid the disadvantage cited by the lower court by selecting the remaining period of active duty service by selecting the remaining period of service by consecutive terms, etc. as seen earlier, it is difficult to view such difference as arbitrary and unreasonable discrimination merely

In addition, the court below compared the case where a military advocate or a public-service advocate retires more than 20 years of continuous service and more than 20 years of continuous service, and the case where he retires immediately after the end of his term of office one year prior to his second consecutive reappointment and the Judicial Research and Training Institute is appointed immediately after the end of his term of office, and the remaining term of office remains more than 2 consecutive terms, and goes beyond the scope of reasonable discrimination due to considerable difference between the amount of voluntary retirement allowances of judges who completed the same term of office. However, even if the Constitution has completed the same term of office as the Judicial Research and Training Institute, it is inevitable that the remaining term of office is changed depending on the difference in the period of appointment of judges, and the procedure for reappointment is made differently. If a judge who was appointed late again again again, then the remaining term of office can be acknowledged as more favorable, and in light of this, it is difficult to recognize that the remaining term of office of a judge is considerably unfavorable to the judge in accordance with the Constitution or the law as the result of his refusal of his remaining term of office.

(6) Therefore, in full view of the circumstances such as the discretion of the honorary retirement system, the general legal principles on the principle of equality, the criteria for calculating the amount of honorary retirement allowances of judges, the system of judicial officer’s tenure under the Constitution, the voluntary retirement of judges, and the result arising from the addition of the number of years of service during the period of service, etc., it cannot be deemed that the main text of the instant provision, based on broad discretion on the formation of the entitlement to voluntary retirement allowances, provided that the amount of voluntary retirement allowances of judges should be calculated by reflecting the remaining period of service of judges at the same time without any reasonable ground,

D. Nevertheless, on a different premise, the lower court determined that the main text of the instant provision was null and void against the principle of equality, and that the instant refusal notification was also unlawful. Therefore, the lower court erred by misapprehending the legal doctrine on the honorary retirement system and the principle of equality, thereby adversely affecting the conclusion of the judgment, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)