[1] The elements for the disposition to recover the amount corresponding to the amount of benefits paid erroneously by the party who received the benefits pursuant to Article 57 (1) of the former National Pension Act

[2] In a case where a pension payment decision was made despite a failure to meet the eligibility requirements under the National Pension Act, whether the decision on the payment of the pension may be revoked separately from the recovery of the benefits already paid (affirmative), and in a case where the exercise of the right to revoke such decision is unlawful, whether the recovery disposition based on the right to revoke the decision on the pension payment ought to be deemed lawful (negative)

[1] In full view of the contents and purport of Article 57(1) of the former National Pension Act (amended by Act No. 14214, May 29, 2016) and Article 9(1)1 of the Addenda (amended by Act No. 14214, Jul. 23, 2007) and the unique characteristics of cancellation of beneficial administrative disposition in the social security administrative field, when recovering the amount equivalent to the amount of benefits erroneously paid from the party who received the benefits pursuant to the said provision, whether there is a cause attributable to the party, such as intentional or gross negligence, whether restitution of the amount of benefits is harsh to the beneficiary; the interval between the amount of the benefits paid; the date of determination on the amount of the benefits paid; the date of determination on the amount of the benefits paid; the amount of the benefits paid; the amount of the benefits paid erroneously paid; and the degree of disadvantage suffered by the party to the public interest; the right to recover the amount of benefits paid erroneously and the degree of disadvantage suffered by the party to the public interest should be compared with the need to protect the party’s rights and interests.

[2] In principle, a disposition agency that issued an administrative disposition can revoke the decision ex officio without a separate legal basis. Thus, in a case where a pension payment decision was made despite a failure to meet the supply and demand requirements under the National Pension Act, the decision of revocation may be revoked separately from the recovery disposition of the already paid benefits. In such a case, the exercise of the right to revocation is an infringement upon the people's vested rights, and where the disadvantage, etc. to be the other party is huge than the necessity of public interest to revoke the decision of revocation, it shall be deemed unlawful as it goes beyond the bounds of discretionary power. However, where a disposition to revoke the decision of revocation of the pension payment and a disposition to recover the amount equivalent to the benefits erroneously paid based on the disposition are deemed legitimate, it shall not be deemed that each circumstance is the same. Thus, the decision of revocation of the pension payment decision shall not be deemed lawful and lawful

[1] Article 57(1) of the former National Pension Act (Amended by Act No. 14214, May 29, 2016); Article 9(1)1 of the Addenda (Amended by Act No. 14214, Jul. 23, 2007) / [2] Article 57(1) of the former National Pension Act (Amended by Act No. 14214, May 29, 2016)

[2] Supreme Court Decision 2013Du27159 Decided July 24, 2014 (Gong2014Ha, 1746)

Plaintiff

National Pension Service

Seoul High Court Decision 2014Nu70985 decided May 21, 2015

The part of the lower judgment against the Plaintiff regarding the disposition to recover the pension amount is reversed, and that part of the case is remanded to Seoul High Court. The Plaintiff’s remaining appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The lower court rejected the Plaintiff’s assertion that the time when the Plaintiff acquired the qualification as a national pension subscriber was around April 199 and that time when the qualification was acquired was around 1997. In light of the relevant legal principles and records, the lower court’s determination is acceptable, and there was no error of misapprehending the facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Regarding ground of appeal No. 2

A. Article 9(1)1 of Addenda to the National Pension Act (amended by Presidential Decree No. 2007, Jul. 23, 2007); Article 9(1)1 provides that a certain amount of pension (hereinafter “special old-age pension”) shall be paid to a person aged between 50 and under 60 as of Apr. 1, 199 and a person aged between 50 and 60 as of Apr. 1, 199 who has become the insurance coverage period between 5 and 10 years before he/she reaches the age of 60 on the date he/she reaches the age of 60. Article 57(1) of the National Pension Act provides that “Where a person who has received benefits falls under any of the following subparagraphs, the Service shall recover the amount, as prescribed by Presidential Decree.” Article 57(1) of the National Pension Act provides that “Where a person who has received benefits by fraudulent or other illegal means has received benefits by failing to report the grounds for extinguishment of entitlement to benefits under Articles 75 and 121(2).

In full view of the content and purport of the provisions of the National Pension Act and the unique characteristics of the revocation of beneficial administrative dispositions on social security, it is reasonable to view that a disposition to recover the amount equivalent to the amount of benefits erroneously paid by the party who received the benefits under the said provision should be taken by comparing and comparing the public interest needs to recover the amount of benefits erroneously paid with the disadvantage that the party would suffer, such as the right to obtain benefits, the protection of trust, and the stabilization of legal life, and the need to recover the amount of benefits to the extent that the public interest needs to be justified only in cases where the public interest needs to be justified, in light of the amount of benefits paid, whether restitution would be harsh to the beneficiary, and the specific contents and degree of the public interest needs to be achieved through the disposition to recover the amount of benefits erroneously paid, and the content and degree of the disadvantage that the party would suffer due to the disposition.

Furthermore, in a case where there is a defect in the establishment of an administrative disposition, even if there is no separate legal basis, the administrative agency may revoke the decision ex officio. Thus, in a case where a pension payment decision was made despite the failure to meet the supply and demand requirements prescribed by the National Pension Act, the decision may be revoked separately from the recovery disposition on the portion of the benefits already paid. In such a case, the exercise of the right to revoke is an infringement of the right to enjoy benefits of the people already granted. Therefore, the exercise of the right to revoke is unlawful as it goes beyond the needs of the public interest to revoke the decision of revocation. However, the disposition to revoke the decision of pension payment and the disposition to recover the amount equivalent to the benefits erroneously paid based on the disposition are not the same in determining the legitimacy of the disposition to revoke the decision of pension payment, and thus, the recovery disposition is not necessarily lawful (see Supreme Court Decision 2013Du27159, Jul. 24, 2014).

B. The reasoning of the first instance judgment cited by the lower court and the evidence duly admitted by the lower court reveal the following facts.

① On April 199, the Plaintiff joined the National Pension Scheme and paid the premium from that time until February 2008.

② On February 10, 1948, the date of birth on the family relations register before the Plaintiff’s correction was determined on February 10, 194. However, on February 10, 2008, the Defendant deemed that the Plaintiff’s age became 60 years of age and met the requirements for receiving the special old age pension under Article 9(1)1 of the Addenda to the National Pension Act (amended by July 23, 2007), and decided to pay the Plaintiff special old age pension (hereinafter “instant decision”), and the Defendant paid the special old age pension to the Plaintiff from March 3, 2008 to May 2014.

③ However, the date of birth prior to the Plaintiff’s correction was the “date of birth on February 10, 1948.” On the other hand, the date of birth of the Nonparty, who was the Plaintiff’s chair, was “ March 20, 1948.” However, upon the permission of the court on May 2, 2014, the Plaintiff corrected the date of birth on the family relations register from February 10, 1948 to June 28, 1949.

④ On May 19, 2014, the Defendant issued a disposition to recover the amount of pension that the Plaintiff received from March 3, 2008 to May 22, 2014 (hereinafter “instant disposition to recover the amount of pension”) on the ground that “As of June 28, 2049, the date of birth of the Plaintiff changed, the Plaintiff did not meet the Plaintiff’s requirement to receive special old age pension as of February 10, 2008, namely, “the Plaintiff was at least 50 years of age as of April 1, 199.”

C. The judgment of the court below

The lower court determined that each of the instant dispositions was lawful on the grounds indicated in its reasoning, on the basis of the premise that the Plaintiff did not meet the requirements for receiving the special old age pension at the time of February 10, 2008 on the basis of the corrected date of birth, and on the premise that the Plaintiff did not meet the requirements for receiving the special old age pension as of February 10, 2008, and on the ground that Article 57(1)3 of the National Pension Act provides that “the benefit was paid erroneously due to any other reason,” and does not exclude the case where the Plaintiff failed to meet the requirements for receiving the special old age pension due to a change in circumstances, such as correction of the date of birth, etc., and that the Plaintiff’

D. Supreme Court Decision

1) As to the lawfulness of the instant restitution disposition

In light of the legal principles as seen earlier, even if the date of birth of the Plaintiff after correction of the aforementioned factual basis, the Plaintiff failed to meet the requirements for receiving the special old age pension at the time of the decision to pay the Plaintiff, it is difficult to conclude that there was an intentional or gross negligence on the part of the Plaintiff who received the special old age pension by stating the date of birth recorded in the family relations register, which is an objective supporting material at the time of applying for the payment of pension, and setting the date of birth at the time of the application for the payment of pension. ② It is difficult to recover the benefits already paid to the Plaintiff as the time interval between the starting point of the payment of retirement pension at the time of the retirement pension and the point of each of the dispositions at the time of the instant case, and it is not easy to find that there was no circumstance to deem that the Plaintiff wasting the benefits already paid to the Plaintiff in violation of the purport of the retirement pension. ③ Meanwhile, taking into account the number of benefits to be returned to the Plaintiff by the restitution disposition at issue, and the Plaintiff’s age

2) As to the legitimacy of the disposition of revocation of this case

The instant disposition may be deemed to have ex officio cancelled the instant decision on February 10, 2008 in order to lose the legal basis of the Plaintiff’s pension payment right. In this regard, even if the Plaintiff trusted that the Plaintiff would continue to receive the special old age pension in light of the aforementioned circumstances, insofar as it was confirmed that the Plaintiff did not meet the requirements for receiving the special old age pension on the basis of the corrected date of birth of the Plaintiff, it should be deemed that the need for public interest to secure the financial soundness of the National Pension Fund in a long term by losing the legal basis of the Plaintiff’s pension payment should

3) Sub-decisions

Therefore, the part of the judgment of the court below that held that the disposition of this case was lawful is justifiable, but this part of the judgment that held that the disposition of this case was lawful is erroneous, which erred by misapprehending the legal principles on the principle of protection of trust related to the application of Article 57 (1) 3 of the National Pension Act, and failing to exhaust all necessary deliberations, which affected the conclusion

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff regarding the recovery disposition of this case is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Ki-taik (Presiding Justice)