Where the amount of benefits received by a recipient of a retirement pension from a national financial support institution falls short of half of the retirement pension, whether the payment can be suspended for half of the retirement pension pursuant to Article 47 subparagraph 3 of the former Public Officials Pension Act and Article 40 (2) of the Enforcement Decree of the same Act (negative)

Article 47 subparagraph 3 of the former Public Officials Pension Act (amended by Act No. 6328 of Dec. 30, 200) and Article 40 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17101 of Dec. 30, 200) provide that when a recipient of a retirement pension receives a benefit from a national financial support institution, payment of the relevant pension amount shall be suspended. However, in cases where a recipient of a retirement pension receives a benefit from a national financial support institution falls short of half of the retirement pension, it shall be interpreted that the payment of a retirement pension can be suspended only within the limit of the benefits that the recipient of the retirement pension received from the national financial support institution, notwithstanding the legislative purport of the Public Officials Pension Act and the legislative purpose of the Public Officials Pension Act.

Articles 1, 31(1)3, 42 subparag. 1, 43(2), and 47 subparag. 3 of the former Public Officials Pension Act (Amended by Act No. 6328, Dec. 30, 200); Article 47(2) of the former Public Officials Pension Act (Amended by Act No. 6622, Jan. 19, 200); Articles 1 and 2 of the Addenda of the former Public Officials Pension Act; Articles 26 and 40(2) of the former Enforcement Decree of the Public Officials Pension Act (Amended by Presidential Decree No. 17101, Dec. 30, 200); Article 2 of the former Enforcement Decree of the Public Officials Pension Act (Amended by Presidential Decree No. 1715, Jan. 29, 2001); Article 16 of the former Enforcement Rule of the Public Officials Pension Act (Amended by Presidential Decree No. 17115, Feb. 16, 2001>

A

Public Official Pension Corporation

1. On August 14, 2001, the portion exceeding KRW 8,713,550 out of the redemption disposition of retirement pension of KRW 8,962,320 against the Plaintiff shall be revoked.

2. The plaintiff's request for the suspension of the amount of retirement pension and the revocation of the remaining retirement pension repayment disposition is dismissed, respectively.

3. Seven minutes of the litigation shall be borne by the plaintiff, and the remainder by the defendant.

The defendant's disposition of suspension of the amount of retirement pension paid to the plaintiff on August 14, 2001 and disposition of recovery of KRW 8,962,320 shall be revoked.

1. Details of the disposition;

[Evidence] Each description of Gap evidence Nos. 1 through 3, and the whole purport of the pleading

(a)The plaintiff, while serving for at least 20 years in the Korea Tobacco and Ginseng Corporation, was retired from the retirement age on December 31, 1995, is a person eligible for retirement pension under the Public Officials Pension Act, and has been re-employed from May 15, 1997 to B after retirement.

B. On January 31, 200, Article 47 subparagraph 3 of the former Public Officials Pension Act (amended by Act No. 6328 of Dec. 30, 200; hereinafter referred to as the "Act"), Article 40 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17101 of Dec. 30, 200; hereinafter referred to as the "Enforcement Decree") and Article 5 [Attachment 1] of the Enforcement Rule of the same Act (amended by the Ordinance of the Ministry of Government Administration and Home Affairs No. 89 of Jan. 31, 200; hereinafter referred to as the "Rules") newly designated the Plaintiff as an institution subject to suspension of payment of pension under each of the provisions of subparagraph (a) of Article 1 of the same Act (amended by Act No. 6328 of Dec. 30, 200); Article 40 (2) of the Enforcement Decree of the same Act; Article 30 (2) through (20) of the Enforcement Decree of the same Act; and Article 30 (21) of the Enforcement Decree of the Act.

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The plaintiff received the salary of KRW 16,500 per day until June 30, 200 and KRW 18,500 per day from that day until July 2001. The above salary is less or less than half of the retirement pension received from the defendant. Since the plaintiff was designated as the institution subject to suspension of payment of pension after the plaintiff was employed at the above hospital, the disposition of this case that the plaintiff temporarily recovers the whole amount equivalent to half of the retirement pension, which is more than the salary received from the above hospital, as the plaintiff was designated as the institution subject to suspension of payment of pension, constitutes infringement of the plaintiff's property rights by retroactive legislation, and it is unlawful in violation of the spirit of the Public Officials Pension Act enacted for the purpose of contributing to the stability of the lives and the improvement of the welfare of public officials and their bereaved family members.

B. Relevant statutes

- Laws

Article 1 (Purpose) The purpose of this Act is to contribute to the stabilization of the livelihood and the enhancement of the welfare of public officials and their bereaved families by providing appropriate benefits for the retirement, death, or injury, disease, or disability of public officials caused by the public service.

Article 31 (Recovery of Benefits) (1) Where a person who has received benefits falls under any of the following subparagraphs, the Corporation or a local government shall recover the benefits:

3. Where other benefits are paid by fault or error.

Long-term benefits under this Act shall be as follows:

1. Retirement benefits:

(a) Retirement pension;

(b) Lump-sum retirement pension;

(c) Retirement pension deductions;

(d) Lump-sum retirement benefits;

Article 43 (Payment Period and Time of Pension) (1) The benefit which is a pension shall be paid from the month following the month in which the cause for the benefit occurred to the month in which the cause for the benefit ceases to exist.

(2) In cases where any cause to suspend the payment of pension benefits occurs, the payment of such pension benefits shall be suspended from the month following the month in which such cause occurs to the month in which the date on which such cause ceases to exist: Provided, That where such cause ceases to exist and the date on which such cause ceases to exist falls in

Article 46 (Retirement Pension or Lump-Sum Retirement Pension) (1) When a public official holds office for at least 20 years and retires, a retirement pension shall be paid until he/she dies.

(4) The amount of retirement pension for 20 years in the tenure of office shall be the amount equivalent to 50/100 of the annual amount of remuneration, and if the tenure of office (if the lump sum of retirement pension is paid, the remaining tenure of office after deducting the tenure of office included in the calculation of payment of the lump sum of retirement pension from the tenure of office, if the lump sum of retirement pension is deducted) exceeds 20 years, it shall be the amount calculated by adding the amount equivalent to 2/100 of the annual amount of remuneration for every exceeded one year (one year shall be calculated as 1/12 year; hereinafter the same shall apply). In this case, the amount

When any recipient of a retirement pension or early retirement pension is paid remunerations or other benefits by an institution falling under any of the following subparagraphs, the payment of all or part of the retirement pension or early retirement pension may be suspended, as prescribed by Presidential Decree, during the period of payment thereof:

1. State or agencies of local governments, or school agencies under Article 3 of the Pension for Private School Teachers and Staff Act;

2. An institution designated by the Ordinance of the Ministry of Government Administration and Home Affairs as an institution in which the State or a local government has invested in all or part of its capital, the Bank of Korea (hereinafter referred to as the "government-invested institution"), or

3. Institutions that the State or local governments provide financial support, such as contributions and subsidies, directly or indirectly as determined by Ordinance of the Ministry of Government Administration and Home Affairs;

4.Institution established by the reversion, grant or free lending of State or public property, or institution established by the contribution of the State or local government as determined by Ordinance of the Ministry of Government Administration and Home Affairs;

5. An institution which is designated by the Ordinance of the Ministry of Government Administration and Home Affairs as an institution where the President, the head of the central administrative agency, the head of the local government, or the person entrusted with authority appoints an officer;

Article 65 (Principle of Bearing Expenses) (1) With respect to the expenses required for benefits, the estimated amount of such expenses, the total amount of contributions and charges, and the estimated profits from the operation of the Fund shall maintain the financial balance in the future. In such cases, the expenses required for benefits shall be calculated at least every five years.

Article 66 (Contributions) (1) shall be paid monthly from the month in which the date of appointment as a public official falls to the month in which the day preceding the retirement date or the date of death falls: Provided, That a person whose payment period exceeds 33 years shall not pay contributions.

(2) The amount of the contribution under paragraph (1) shall be prescribed by the Presidential Decree within the limit of 75/1,00 of the monthly remuneration.

Article 69 (Charges) (1) (excluding expenses to be borne pursuant to Article 65 (2) and (3); hereafter the same shall apply in this Article) shall be the amount multiplied by the ratio prescribed by Presidential Decree within the limit of 75/1,000 of the budget for remuneration of each fiscal year: Provided, That where contributions and charges and the fund operation proceeds of the previous year are not able to appropriate for expenditure due to the special circumstances in the current year, such as the conversion and abolition of government organizations, the whole or part of the difference may be subsidized by the State or local governments.

- The Public Officials Pension Act (amended by Act No. 6328, Dec. 30, 200)

Addenda

The provisions of Article 1 (Enforcement Date) shall enter into force on January 1, 2001: Provided, That the amended provisions of Articles 26(1), 38, 63, 69(8) and 69-3 shall enter into force on January 1, 2002, and the amended provisions of Article 47 shall enter into force on the date prescribed by Presidential Decree within the extent of five years.

Article 2 (General Transitional Measures Concerning Grounds for Payment of Benefits) With respect to benefits to a person whose grounds for payment have occurred before this Act enters into force, the previous provisions shall govern.

Article 26 (Recovery of Benefits) (1) of the Enforcement Decree (hereinafter referred to as "collection") (1) of the Act, the interest rate to be added to the amount of benefits to be recovered pursuant to Article 31 (1) of the Act, and expenses to be recovered shall be as follows:

1. Amount of benefits: The amount paid under the Act and this Decree;

Article 40 (Suspension of Payment of Retirement Pension, Early Retirement Pension, and Disability Pension) (1) Where a beneficiary of a retirement pension, early retirement pension, or disability pension serves as a public official, soldier, or private school teacher or staff subject to the Act, the Military Pension Act, or the Private School Teachers' Pension Act, the payment of the total amount of the relevant pension shall be suspended

(2) Where a beneficiary of a retirement pension, early retirement pension or disability pension is in office by election or an executive or employee of an institution falling under any of subparagraphs 2 through 5 of Article 47 of the Act and is paid remuneration or benefits equivalent thereto, the payment of the relevant pension amount shall be suspended by half.

(3) Where a beneficiary of a retirement pension, early retirement pension, or disability pension falls under any of the following cases, he/she shall submit a report on reappointment or re-retirement within ten days to the GEPS or a local government upon confirmation by the head of the agency dealing with pensions or the head of the relevant agency

2. When he is appointed or taken office as a public official, officer or employee under paragraph 2, or retires or retires;

3. When an affiliated agency of executive officers and employees under paragraph (2) is changed;

- Enforcement Decree of the Public Officials Pension Act (amended by Presidential Decree No. 17101, Dec. 30, 2000)

Addenda

Article 2 (General Transitional Measures Concerning Grounds for Payment of Benefits) With respect to benefits to a person whose grounds for payment have occurred before this Decree enters into force, the previous provisions shall apply.

Enforcement Rule

Article 5 (Institutions subject to Suspension of Payment of Retirement, Early Retirement, or Disability Pension) (1) Institutions subject to suspension of payment of a retirement pension, early retirement pension, or disability pension under subparagraphs 2 through 5 of Article 47 of the Public Officials Pension Act (hereinafter referred to as the "Act") (including cases applied mutatis mutandis under Article 55 (1) of the Act) shall be as specified in attached Table 1.

[Attachment 1] Institutions subject to Suspension of Payment of Pension (Related to Article 5)

1. Institutions subject to suspension of the payment of pension for the attached Table contained in the main sentence; 1. General Institutions (167) B

(c) Markets:

(1) Facts of recognition

(o) Evidence No. 4-1 to 3, Evidence No. 3-1 and 2-2, and the whole purport of oral argument

(a)The amount of the retirement pension paid by the Plaintiff shall be KRW 1,044,50 per month in 200, KRW 1,068,520 in 201, KRW 522,250 per month in 200, and KRW 534,260 in 201.

(B) On May 15, 1997, the Plaintiff was employed at the hospital B and was in charge of the visit control affairs under the control of the general affairs. The Plaintiff entered into a labor contract every six months between the head of the hospital and the head of the hospital to receive a daily allowance including various allowances for eight hours a day (44 hours a week). From January 1, 200 to June 30 of the same year, the Plaintiff received KRW 16,500 per day and KRW 18,500 per day from July 1 of the same year.

(c)The amount of salaries received by the Plaintiff from March 200, when the first hospital was designated as an institution subject to the suspension of the payment of pensions, to July 2001, from March 200, until the date of the instant disposition, 49,500 won for March 3, 200, 462,00 won for April of the same year, 478,500 won for May and June of the same year, and 55,000 won for July and August of the same year, and 49,500 won for September of the same year, and 49,500 won for October and November of the same year, and 55,00 won for December of the same year, and 49,500 won for February of the same year, 201, 518,000 won for March of the same year, 5,005 won for May 3, 205, 306 won for the same year and year;

(D) On August 20, 2001, the Plaintiff was dismissed from office as a member at the above hospital after the instant disposition was taken.

(2) Determination:

(a)According to the above-mentioned legislation, Article 47 subparagraph 3 of the Act provides that when a recipient of a retirement pension receives remuneration and other benefits from an institution designated by the Ordinance of the Ministry of Government Administration and Home Affairs as an institution which has received financial support from the State or a local government, the payment of retirement pension may be suspended in whole or in part as prescribed by the Presidential Decree during the payment period, and Article 40 (2) of the Enforcement Decree provides that when a recipient of a retirement pension serves as an officer or an employee of the institution in question and receives remuneration or other equivalent benefits, the payment shall be suspended in half of the relevant pension amount. Meanwhile, Article 5 [Attachment 1] of the Rules provides that a recipient of a retirement pension shall be subject to suspension of payment, and Article 31 (1) 3 of the Act provides that where retirement benefits have been overpaid, the amount shall be recovered.

(B)First of all, the argument that the instant disposition infringed upon the Plaintiff's property right by retroactive legislation. Of the grounds for the instant disposition, Article 31 (1) 3 of the Act was amended on November 28, 1987; Article 47 of the Act was amended on January 29, 1995; Article 40 subparagraph 2 of the Enforcement Decree of the Act was amended on December 29, 1995; and Article 40 subparagraph 2 of the Enforcement Decree was already enforced on May 15, 1997 when the Plaintiff was employed at the hospital. However, since Article 5 (A) of the Rules was amended on January 31, 2001 after the Plaintiff's employment, the Plaintiff's assertion that the instant retirement pension collection and half payment were subject to the Plaintiff's property right after the above hospital was infringed upon the Plaintiff's suspension of payment, it cannot be viewed that the Plaintiff's claim was retroactively justified.

(C) However, if the above-mentioned provision provides that if the plaintiff receives benefits from the above hospital, regardless of the size of the benefits, the defendant shall suspend the payment of 1/2 of the retirement pension to the plaintiff and shall be 1/2 of the amount of the retirement pension paid during the period for which the payment is suspended pursuant to the above-mentioned provision. It seems that the above-mentioned provision shall apply to cases where other benefits are overpaid and erroneously paid pursuant to the provision of Article 31 (1) 3 of the Income Tax Act. However, as seen in the above-mentioned provision, the amount of the retirement pension shall not be paid within 7 months from March 6, 200, 201, and 201, and the amount of the retirement pension received by the above hospital is less than the amount of the retirement pension received by the government for the purpose of the above-mentioned provision of Article 40 (2) of the Enforcement Decree of the Public Officials Pension Act. Thus, it is sufficient that the above provision of the retirement pension shall not be paid within 7 months from the above-mentioned provision of the retirement pension to the government.

Therefore, as to Article 47 subparagraph 3 of the Act and Article 40 (2) of the Enforcement Decree of the Act, it shall be interpreted that if the number of benefits received by a beneficiary of a retirement pension from the State is less than half of the retirement pension, the payment of retirement pension may be suspended only within the limit of the amount received, notwithstanding its language and text. Based on such interpretation, the benefits received by the plaintiff at the time of August 14, 200, which is the date of disposition in this case, exceeds half of the retirement pension, and as such, it is legitimate to suspend the amount of the retirement pension in this case pursuant to Article 47 subparagraph 3 of the Act and Article 47 (2) of the Enforcement Decree of the Act and Article 40 (2) of the Enforcement Decree of the Act 205 + 206 won to be recovered from March 200 to July 201, 205 + 205 won to 205 won to 405 won, 205 won to be recovered, 205085 won to 445 months to be recovered.

3. Conclusion

If so, the part exceeding KRW 8,713,50 of the Plaintiff’s claim for revocation of the recovery disposition of KRW 8,962,320 of retirement pension shall be accepted on the ground of its ground, and each claim for revocation of the disposition of suspension of retirement pension and the remaining retirement pension recovery disposition shall be dismissed on the ground of its ground, respectively. It

Judge Han-won (Presiding Judge)