Whether the provisions of Article 61-2(2) of the Public Officials Pension Act and Article 52-3 of the Enforcement Decree of the same Act concerning retirement allowances of public officials violate the Constitution (negative)

Article 61-2 (2) of the Public Officials Pension Act does not violate the principle of prohibition of comprehensive delegation because only the legislative purpose and content of the provision can sufficiently predict the contents prescribed by the Presidential Decree.The retirement allowance system is not against the principle of prohibition of comprehensive delegation because it is a system that intends to additionally pay part of retirement benefits, etc. to public officials who can receive retirement benefits, etc. for the purpose of social security, and it does not mean that a right to receive an amount equivalent to retirement allowances for ordinary workers who are naturally public officials under the provisions of Article 61-2 of the Public Officials Pension Act arises. Ultimately, the provisions of Article 52-3 of the Enforcement Decree of the Public Officials Pension Act do not restrict the public officials' right to receive an amount corresponding to retirement allowances on the premise that there is a right to receive an amount corresponding to retirement allowances of ordinary workers. Accordingly, the provisions of the Enforcement Decree do not violate the principle of proportionality and the principle of clarity under the Constitution or infringe on the essential contents of the right to claim subsequent wages.

Article 61-2 of the Public Officials Pension Act, Article 52-3 of the Enforcement Decree of the Public Officials Pension Act, Article 37(2) and Article 75 of the Constitution

Plaintiff

Public Official Pension Corporation

June 27, 2007

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 20,000 won to the plaintiffs (appointed parties, hereinafter the plaintiff) and the designated parties listed in the separate sheet and attached sheet, and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. The Plaintiff and the designated parties indicated in the list of the designated parties were appointed as state public officials and serve as state public officials at the Korea National Railroad and the Korea High-Speed Rail Construction Authority, etc., and the Korea National Railroad and the Korea High-Speed Rail Construction Authority were integrated on January 1, 2004 and converted into the Korea Railroad on January 1, 2005, respectively, retired from their status as state public officials on January 1, 2004 and January 1, 2005.

B. The designated parties indicated in the list of the Plaintiffs and the annexed persons filed an application for retirement allowances to the Defendant upon confirmation by the head of the affiliated agency at the time of retirement, and the Defendant determined the Plaintiff and the designated parties listed in the annexed list as the beneficiaries of retirement allowances under Article 61-2(1) of the Public Officials Pension Act, and paid the retirement allowances calculated under Article 61-2(2) of the Public Officials Pension Act and Article 52-3 of the Enforcement Decree of the same Act

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 3, the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

(1) Type of lawsuit

In order to receive benefits under the Public Officials Pension Act, a specific claim arises only when the defendant makes a decision on the payment thereof. Accordingly, even if a person who wishes to receive benefits under the Public Officials Pension Act falls under the legal requirements, he/she may not immediately file a claim for the payment of benefits through a party litigation, and in cases where the defendant applied for the payment of benefits against the defendant and then makes a disposition not to pay benefits, he/she shall file a lawsuit for the payment of benefits as a party litigation only when the defendant does not pay benefits even after making a decision

In this case, the Defendant recognized the Plaintiff and the designated parties indicated in the annexed list as eligible for the payment of retirement allowances, but imposed a disposition to pay the amount of retirement allowances calculated pursuant to Article 61-2(2) of the Public Officials Pension Act and Article 52-3 of the Enforcement Decree of the same Act. As such, the Plaintiff filed an appeal suit seeking the revocation of the above disposition, even if the Plaintiff wishes to object to the appeal, and the Plaintiff filed the lawsuit of this case seeking payment as a party suit, which is unlawful.

(2) The time limit for filing a lawsuit

As above, an appeal suit seeking the revocation of the Defendant’s disposition regarding the amount of retirement allowances shall be filed within 90 days from the date on which the Plaintiff and the designated parties indicated in the separate sheet of designated parties are informed of the Defendant’s decision on the payment of the Plaintiff and the designated parties indicated in the separate sheet of designated parties. However, the instant lawsuit is unlawful since it is apparent that the instant lawsuit was filed 90 days after the date of disposition

(3) Non-existence of qualification for the defendant

The defendant was entrusted by the Minister of Government Administration and Home Affairs with the duty to pay the retirement allowances for which payment is due under the Public Officials Pension Act, so there is no eligibility to be the defendant in the lawsuit of this case seeking payment outside the Public Officials Pension Act.

(b) Markets:

(1) As to the allegation regarding the form of lawsuit

In full view of the provisions of Articles 26(1) and 83(1) of the Public Officials Pension Act, and Article 19-3 of the Enforcement Decree of the Public Officials Pension Act, the right to receive benefits such as retirement pension does not necessarily mean that the right to claim the payment of retirement pension does not directly correspond to the requirements of statutes, but the right to claim the payment of retirement pension, etc. arises when the defendant makes a decision upon request by the head of the agency to which the relevant public official belonged, upon confirmation of the head of the agency to which the relevant public official belongs, and thus, the decision of the defendant's payment of benefits directly affects the citizen's right, and thus it constitutes an administrative disposition (see, e.g., Supreme Court Decision 96Nu6417, Dec. 6, 1996). Therefore, the form of litigation that is erroneous in the determination of the period of office, retirement date, monthly amount of remuneration

However, the Plaintiff’s claim does not seek the amount of benefits under the current Public Officials Pension Act, rather than seeking the benefits under the current Public Officials Pension Act, and sought the payment of benefits under the current Public Officials Pension Act, which is equivalent to the Labor Standards Act, etc., by claiming that the current Public Officials Pension Act is unconstitutional, and the specific amount of benefits to be paid by a public official is finalized pursuant to the provisions of the statutes and the amount is not finalized by the Defendant’s decision and notification. Even if the Defendant already paid a retirement allowance calculated and paid the retirement allowance under the current Public Officials Pension Act to the Plaintiff and the designated parties listed in the annexed list, it cannot be deemed that the Plaintiff’s claim for the unpaid retirement allowance under the Public Officials Pension Act is an administrative disposition, not an administrative disposition, but an actual and legal opinion as to the scope of its payment obligation as a party to a legal relationship under public law, and thus, the lawsuit seeking the payment of the unpaid retirement allowance under the current Public Officials Pension Act constitutes a party litigation under public law (see, e.g., Supreme Court Decision 200Du15354, supra.).

(2) As to the appeal period and argument

As seen earlier, the form of the instant lawsuit falls under a party litigation, not an appeal litigation, and thus, the Defendant’s filing period and assertion based on the premise that the instant lawsuit is a revocation litigation are without merit.

(3) As to the non-existence of defendant qualification

In the instant lawsuit seeking the payment of retirement allowances as a kind of benefit under the current Public Officials Pension Act, asserting that the current Public Officials Pension Act is unconstitutional, the Defendant is a person liable for payment of various benefits pursuant to Article 26(1) of the Public Officials Pension Act, and thus, the Defendant is deemed to have the eligibility for the Defendant. Accordingly, this part of the assertion is rejected.

3. Judgment on the merits

A. The plaintiff's assertion

(1) Article 61-2 (2) of the Public Officials Pension Act, which the Defendant used as the basis for the calculation of the amount of retirement allowances, "amount obtained by multiplying the ratio prescribed by the Presidential Decree" (hereinafter "the legal provisions of this case") shall be delegated to the Presidential Decree without specifying the specific contents on the calculation ratio, and accordingly, Article 52-3 of the Enforcement Decree of the Public Officials Pension Act shall be 10 to 60% of the retirement allowance ratio. Accordingly, the legal provisions of this case and Article 52-3 of the Enforcement Decree of the Public Officials Pension Act violate the prohibition of comprehensive delegation stipulated in Article 75 of the Constitution. Accordingly, by reducing 40% of retirement allowance and paying only 60% of retirement allowance, it violates the principle of proportionality and clarity under the Constitution and violates Article 37 (2) of the Constitution, and violates the principle of equality stipulated in Article 11 of the Constitution.

(2) In addition, Article 52-3 of the Enforcement Decree of the Public Officials Pension Act provides that "the period of service in the public officials' office shall not exceed 33 years" is null and void in violation of Article 75 of the Constitution and Article 61-2 (2) of the Public Officials Pension Act and Article 61-2 (3) of the Addenda of the same Act (No. 4334, January 14, 191).

(3) On the other hand, the legal provision of this case is in a state of making a request for adjudication on unconstitutionality. Thus, when the Constitutional Court makes a decision of unconstitutionality on the legal provision of this case, the designated parties listed in the plaintiff and the annexed list of the designated parties will be settled the difference between the retirement allowance already received from the legitimate retirement allowance under the Public Officials Pension Act which is constitutional. Thus, the defendant is obligated to pay 20,000 won and its delayed damages first as part of the retirement allowance to be settled to the designated parties listed in the plaintiff and the annexed list of designated parties.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

(1) Whether the legal provisions of this case are unconstitutional

(A) Whether the principle of prohibition of blanket delegation is violated

(1) The legal nature of retirement allowances.

However, the public officials pension system is a kind of social insurance system to contribute to the stabilization of the livelihood and the improvement of the welfare of public officials and their bereaved family members when public officials retire or die, and the retirement benefits or bereaved family benefits under the Public Officials Pension Act are basically social security benefits and the contributions paid by the public officials are considered as part of the financial resources.

In particular, the part corresponding to the contributions paid by the person in question among retirement benefits is of the nature of the follow-up payment of the wages that should have been paid in return for his/her service while in office, and the part corresponding to the contributions by the State or local governments is of the nature of benefits of benefits or social security benefits (see Constitutional Court Order 2000HunBa94, 200HunBa21, Sept. 25, 2003). In the case of retirement allowances, Article 65 (3) of the Public Officials Pension Act provides that the State or local governments shall bear the expenses of retirement allowances, so it is of the nature of benefits of benefit or social security benefits.

In addition, since retirement allowances are not paid as a matter of course the amount corresponding to the retirement allowances of ordinary workers, but paid some amount for the purpose of beneficial benefits and social security, Article 61-2 (2) of the Public Officials Pension Act, including the legal provisions of this case, is not a provision that limits the liability to pay the amount corresponding to the retirement allowances of ordinary workers in the form of the legal provisions, but a provision that creates new benefits, under the premise that there is a duty to pay the amount corresponding to the retirement

(2) The necessity and limits of delegated legislation.

In modern social welfare countries, as social phenomenon becomes complicated and complicated and professional and technical administrative functions are required, there is a growing need to respond promptly and appropriately to changes in the social and economic situation at that time, while it is difficult to define all matters only by law enacted by the National Assembly, since technical and professional capabilities or time adaptation ability of the National Assembly is limited. Therefore, it is inevitable to delegate legislative power to the administration with respect to certain matters.

However, the delegation of legislative power must be limited. If a general and comprehensive delegation is made, it would result in denying the principles of parliamentary legislation or the rule of law by means of blind delegation of legislative power, and would result in arbitrary infringement of fundamental rights by administrative power. Article 75 of the Constitution of the Republic of Korea provides that "The President may issue Presidential Decree with regard to the matters delegated by the law, the specific scope of which may be determined by the law," which requires the basis of delegation legislation and the identity and clarity of delegation. Here, the clarity and clarity of delegation means that any person can predict the outline of the matters to be prescribed by the Presidential Decree from the law in question, if the basic matters of the contents and scope of delegation are specified by the Presidential Decree already, shall not be determined with only one specific provision in determining such predictability, but shall be determined with an organic and systematic consideration of all relevant provisions in accordance with the specific and individual nature of each law.

In particular, in the area where people's fundamental rights are likely to be directly restricted or infringed, the requirements and scope of delegation should be more strictly limited than the area of general performance administration due to the strengthening of the demand for specification and clarity. However, in the case where regulating the beneficial benefit administration or various factual relations or where it is anticipated that the factual relations will change from time to time, the demand for specification and certainty of delegation should be mitigated (see Constitutional Court Order 2002Hun-Ba52, Nov. 25, 2004, etc.).

(3) Markets

Since the legal provision of this case is a provision concerning retirement allowances with a strong nature of benefits or social security benefits, the legislative provision of this case can be mitigated and the demand for clarity and clarity that the legal provision of this case should have as a delegated legislation.

On the other hand, whether the law delegated legislative power is sufficiently clear or not should be determined through the systematic interpretation of the relevant legal provisions, including the entire legal provisions, rather than the pertinent legal provisions harbor. In particular, since the contents of the power can be embodied from the purpose of the power and the scope of the power can be predicted to some extent, the legislative purpose of the pertinent legal provisions has important meaning (see, e.g., Constitutional Court Order 2002Hun-Ba52, Nov. 25, 2004).

However, the legislative purpose of the retirement allowance system is to promote equality with the private sector and meet temporary financing requirements at the time of retirement, considering that there is no retirement allowance for pure employer's burden, such as the payment to the general workers, if the public excludes retirement benefits, etc. paid to the public according to the social insurance principle.

In light of such legislative purpose, it can be easily predicted that the amount of retirement allowances would be determined as necessary amount for temporary financing of retirement public officials in consideration of the amount of retirement allowances and the amount of retirement allowances of ordinary workers. In particular, given that the amount of retirement allowances, etc. of public officials is not much than the amount of retirement of ordinary workers, the legislative purpose of “requirements for Temporary Financing” rather than the equity with the private sector is more important in determining the amount of retirement allowances, and thus, it can also be easily predicted that the number of years of service would be paid higher than the amount of retirement allowances of long-term retirement public officials. In addition, Article 61-2(2) of the Public Officials Pension Act directly provides for the elements of “amount of monthly remuneration” and “period of service” in calculating the amount of retirement allowances, and as such, it is possible to predict that the amount of retirement allowances would be differentiated depending on the amount of monthly remuneration and the period of service.

Ultimately, since the legislative purpose of Article 61-2(2) of the Public Officials Pension Act, including the instant legal provision, and the legislative purpose of Article 61-2(2) of the same Act, which can sufficiently predict the contents prescribed by Presidential Decree even though the legislators have direct provisions, the instant legal provision does not violate the principle of prohibition of comprehensive delegation.

Therefore, the prior plaintiff's assertion on a different premise is without merit.

(B) Whether Articles 37(2) and 11 of the Constitution are violated

The reason why the amount of retirement allowances was reduced is not due to the legal provisions of this case, but due to the provision of Article 52-3 of the Enforcement Decree of the Public Officials Pension Act according to delegation of the legal provisions of this case. Thus, even if it is assumed that the above provision of the Enforcement Decree of the Public Officials Pension Act is unconstitutional as the plaintiff's assertion, the legal provisions of this case cannot be deemed unconstitutional, and therefore, the plaintiff's assertion on this part is without merit.

(2) Whether Article 52-3 of the Enforcement Decree of the Public Officials Pension Act is unconstitutional

(A) As seen earlier, the retirement allowance scheme is a system that intends to additionally pay part of the amount to public officials who are entitled to receive retirement benefits, etc. for beneficial and social security purposes, and it cannot be deemed that the right to receive the amount corresponding to the retirement allowance for ordinary workers who are naturally public officials under Article 61-2 of the Public Officials Pension Act has been created. Ultimately, Article 52-3 of the Enforcement Decree of the Public Officials Pension Act does not limit the scope of public officials’ right to receive the amount corresponding to the retirement allowance for ordinary workers, on the premise that public officials have the right to receive the amount corresponding to the retirement allowance for ordinary workers, but does not specify the right to claim the retirement allowance established under Article 61-2 of the Public Officials Pension Act. Therefore, the above provision does not violate the principle of proportionality under the Constitution or the principle of clarity, or violates the essential contents of the right to claim the subsequent wages, which are property rights.

(B) The principle of equality prohibits a legislative person from arbitrarily and arbitrarily treating the same essentially differently from what is essentially different. Therefore, if two factual relations are treated differently even though there is no difference to the degree to justify different treatment among the two factual relations, which constitute the subject of comparison, the legislators would thereby infringe the right of equality (see Constitutional Court Order 96Hun-Ga18, Dec. 26, 1996).

The Public Officials Pension Act is a special law under the Labor Standards Act, and therefore, the public officials are not entitled to request the payment of retirement allowances under the Public Officials Pension Act. In addition, as seen earlier, there is a system such as retirement allowances under the Public Officials Pension Act, and the amount of retirement allowances cannot be said to be less than the retirement allowances of ordinary workers. In view of the fact that the retirement allowance system is re-established, it is a separate system. Thus, even if the method of calculation differs, it cannot be said that there is no reasonable basis. Thus, the plaintiff's assertion that the above provision violates the principle of equality is without merit.

4. Conclusion

Therefore, the defendant paid all retirement allowances to the designated parties in accordance with the provisions of Article 61-2 (2) of the Public Officials Pension Act and Article 52-3 of the Enforcement Decree of the same Act, which is not unconstitutional or unlawful, not to mention the unconstitutionality of Article 61-2 (2) of the same Act and Article 52-3 of the Enforcement Decree of the same Act. Thus, the

[Attachment] Relevant Statutes: omitted

Judges Lee Young-young (Presiding Judge)