[1] Whether the existence of an administrative disposition in an administrative litigation constitutes the matter of ex officio examination (affirmative), and whether the matter constitutes the scope of adjudication in the final appeal in a case where a party asserts the matter of ex officio examination which was not asserted by the parties until the closing of arguments in the fact-finding court (affirmative)

[2] Where the Public Officials Pension Corporation notifies the amendment of the Public Officials Pension Act and the fact that a recipient of a retirement pension is subject to the suspension of payment of some amount of a retirement pension, whether the above notification is an administrative disposition subject to appeal litigation (negative)

[3] In a case where the Public Officials Pension Corporation expressed its intent to refuse payment of part of the retirement pension in accordance with the revision of the Public Officials Pension Act, whether such declaration of intention is an administrative disposition subject to appeal litigation (negative), and in such a case, the nature of the lawsuit seeking payment of the unpaid retirement pension (=party litigation)

[1] The existence of an administrative disposition, which is the object of litigation in an administrative litigation, is subject to ex officio investigation as a litigation requirement, and cannot be subject to confession. Thus, even if the parties do not dispute the existence, it should be determined ex officio in a case where there is doubt as to the existence of such administrative disposition. In a case where a matter falling under the matter to be ex officio which the parties did not dispute at the time of the closing of argument in the fact-finding trial, is asserted only in the final appeal, matters falling

[2] Where a person who retired after being employed as a public official and was receiving a retirement pension under the former Public Officials Pension Act (amended by Act No. 6328 of Dec. 30, 200), was reappointed as an employee of the Korea Workers' Compensation and Welfare Service and received benefits from the Korea Workers' Compensation and Welfare Service, and the former Enforcement Rule of the Public Officials Pension Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 89 of Jan. 31, 200) was amended, and the Korea Workers' Compensation and Welfare Service was designated as a payment suspension agency for some of the retirement pension under Article 47 subparagraph 3 of the former Public Officials Pension Act, regardless of whether to suspend payment of the retirement pension, if the former Enforcement Rule of the Public Officials Pension Act was enforced, and the fact that some of the amount of retirement pension was suspended due to the amendment of the above Act and subordinate statutes is still notified from the Korea Workers' Compensation and Welfare Service. Thus, it cannot be viewed that the payment of some of the retirement pension is suspended due to the notification of the concept of administrative disposition.

[3] Where the payment of some amount of retirement pension is suspended due to the amendment of the Public Officials Pension Act, etc. while receiving a retirement pension due to the recognition of the Public Officials Pension Corporation, the retirement pension is finalized as a matter of course pursuant to the amended Act and subordinate statutes, and the amount is not finalized only by the decision and notification of the retirement pension prescribed in Article 26 (1) of the former Public Officials Pension Act (amended by Act No. 6328 of Dec. 30, 200). Thus, even if the Public Officials Pension Corporation expressed its intent to refuse payment for some amount of retirement pension, the expression of intention is not an administrative disposition that forms and determines the right to claim the retirement pension, but it is merely an administrative disposition that expresses its actual and legal opinion as to the existence and scope of the payment obligation as a party to the legal relationship under public law. Accordingly, the right to claim payment for the unpaid retirement pension is a public law lawsuit seeking its payment as a legal relationship under public law, which constitutes a party litigation under public law.

[1] Article 2 of the Administrative Litigation Act, Article 27 of the Administrative Litigation Act / [2] Article 5 (1) [Attachment 1] 2.A. (28) of the former Enforcement Rule of the Public Officials Pension Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 126 of Feb. 28, 2001), Article 2 of the Administrative Litigation Act / [3] Article 5 (1) [Attachment 1] 2. A. (28) of the former Enforcement Rule of the Public Officials Pension Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs of Feb. 28, 2001), Article 2 and Article 3 subparagraph 2 of the Administrative Litigation Act

[1] Supreme Court Decision 82Nu484 delivered on December 27, 198 (Gong1984, 31) 84Nu653 delivered on July 8, 198 (Gong1986, 104), Supreme Court Decision 91Nu1684 delivered on January 21, 1992 (Gong1992, 92, 93Du8712 delivered on January 15, 1993 (Gong1993, 794, 799) 20Nu2979, 1993, 197Du92949, 2997, 2997Du29496, May 14, 193 (Gong1993, 1706)

Plaintiff 1 and 34 others (Attorney Lee Chang-hoon, Counsel for the plaintiff-appellant)

Public Official Pension Corporation

Seoul High Court Decision 2001Nu139 delivered on November 25, 2003

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

1. The judgment of the court below

According to the records and facts acknowledged by the court below, since the plaintiffs were appointed as public officials and were retired from office and all of them became entitled to retirement pension under the former Public Officials Pension Act (amended by Act No. 6328 of Dec. 30, 200; hereinafter the same shall apply) and were appointed again as employees of the Korea Workers' Compensation and Welfare Corporation on May 1, 1995 and received retirement pension. The defendant notified the defendant of the decision that the amount of retirement pension was unconstitutional and paid to the defendant under Article 47 subparagraph 3 of the former Public Officials Pension Act, Article 40 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17101 of Dec. 30, 200; hereinafter the same shall apply) and Article 5 (1) [Attachment 2] of the former Public Officials Pension Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 89 of Jan. 31, 2000; hereinafter the same shall apply).

2. The judgment of this Court

A. The existence of an administrative disposition, which is the object of an administrative litigation, in an administrative litigation, is a litigation requirement, and it cannot be a confession. Thus, even if the parties do not dispute the existence of the opinion, it should be determined ex officio if there is doubt as to the existence of the opinion (see, e.g., Supreme Court Decisions 92Nu15499, Jul. 27, 1993; 98Du892, Nov. 9, 2001; 98Du892, Nov. 9, 2001; etc.). In a case where a party asserts matters falling under the matters to be ex officio which are not asserted by the time of the closing of argument in the fact-finding court, the matters falling under such ex officio fall under the scope of adjudication in the court of final appeal (see, e.g., Supreme Court Decisions 97Nu1235, Dec. 12, 197; 97Da5126, Mar. 27, 1998).

B. Whether notification by the defendant around March 13, 200 constitutes an administrative disposition

Where a person who retired and was receiving a retirement pension under the former Public Officials Pension Act was appointed again as the employee of the Korea Workers' Compensation and Welfare Service, and the Korea Workers' Compensation and Welfare Service receives benefits from the Korea Workers' Compensation and Welfare Service, and the Korea Workers' Compensation and Welfare Service is designated as the payment suspension agency for some of the retirement pension under Article 47 subparagraph 3 of the former Public Officials Pension Act, regardless of whether to suspend payment or not, the payment of some of the retirement pension is naturally suspended pursuant to the relevant provisions of the former Public Officials Pension Act. Therefore, notification of the amendment of the above Acts and subordinate statutes and the fact that the recipient of the retirement pension is subject to suspension of payment of some of the retirement pension is merely notification of the concept that the payment of some of the retirement pension is suspended due to the occurrence of the reasons prescribed in the above Acts and subordinate statutes, and it cannot be viewed as an administrative disposition that becomes subject to appeal litigation (see Supreme Court Decision 9Da64308, Dec. 22, 200; Supreme Court Decision 201Du428, Jul. 24, 2004).

In addition, the defendant's remaining grounds of appeal, i.e., notification of around March 13, 200, an excessive time limit for filing a lawsuit, or as long as the notification of the decision of unconstitutionality under Article 47 subparagraph 3 of the former Public Officials Pension Act has become final and conclusive on March 13, 200, which was conducted before the decision of unconstitutionality, the defect of the disposition does not necessarily become null and void or have no retroactive effect on the decision of unconstitutionality in the administrative disposition that became final and conclusive. As seen above, the notification is premised on the fact that the administrative disposition was made after March 13, 200 is an administrative disposition. As long as the notification of March 13, 200 is not an administrative disposition, this part of the grounds of appeal on the premise that the notification is an administrative disposition cannot be accepted.

C. Whether the defendant's response on August 29, 200 constitutes an administrative disposition

The payment of retirement pension under the former Public Officials Pension Act is a specific right when the person entitled to receive benefits applies for the decision of the Public Officials Pension Corporation upon the confirmation of the head of the agency to which the public official belongs. Thus, the decision of the Public Officials Pension Corporation's payment of benefits directly affects the rights of the people and thus constitutes an administrative disposition (see Supreme Court Decision 96Nu6417 delivered on December 6, 1996). However, in cases where some amount of retirement pension is suspended due to the amendment of the former Public Officials Pension Act when the payment of retirement pension was made upon the recognition of the Public Officials Pension Corporation's payment of retirement pension, the retirement pension is determined according to the amended Acts and subordinate statutes, and the amount is not determined only by the decision and notification of the retirement pension under Article 26 (1) of the former Public Officials Pension Act. Thus, even if the Public Officials Pension Corporation expressed its intention to refuse payment of some amount of retirement pension, the expression of intention is not an administrative disposition establishing and confirming the right to claim the retirement pension, but it is merely an actual and legal opinion as to the existence and scope of payment obligation.

In addition, the right to claim the payment of such unpaid retirement pension is a public law right and a lawsuit seeking such payment is a party lawsuit under public law, which is a lawsuit related to legal relations under public law.

Examining the above legal principles in light of the records, since the response of August 29, 200, which the defendant expressed his/her intention to refuse to pay part of the retirement pension cannot be deemed an administrative disposition. In such a case, the fact-finding court should first examine whether the response constitutes a disposition subject to appeal litigation and then explain the intent to seek direct payment of the unpaid retirement pension to the plaintiffs, and should have taken measures, such as dismissing the lawsuit in this case, unless the plaintiffs do not bring a lawsuit due to a party suit under public law, but the court below accepted the above response as it is an administrative disposition. Thus, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on administrative disposition.

3. Conclusion

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 Park Jae-chul (Presiding Justice)