[1] Where the retroactive effect of the Constitutional Court's decision of unconstitutionality is limited

[2] The case holding that the retroactive effect of the Constitutional Court's decision of unconstitutionality on Article 21 (5) 2, 3, 4, and 5 of the former Military Pension Act is limited to the general cases filed after the decision of unconstitutionality is made

[1] Articles 41 and 47 of the Constitutional Court Act / [2] Article 21 (5) 2, 3, 4, and 5 of the former Military Pension Act (amended by Act No. 6327 of Dec. 30, 200), Articles 41 and 47 of the Constitutional Court Act

[1] Supreme Court Decision 91Nu5747 delivered on January 15, 1993 (Gong1993Sang, 735), Supreme Court Decision 92Da12377 delivered on January 15, 1993 (Gong1993Sang, 698 delivered on August 29, 2002), Constitutional Court en banc Order 2001Hun-Ma7888, 2002Hun-Ma173 Delivered on August 29, 2002 (Hun-Gong72, 760), Supreme Court Decision 2005Du5628 delivered on November 10, 205 (Gong205Ha, 1971)

(1) The term "non-party 1" means "non-party 1 or 121"

Korea

Seoul High Court Decision 2005Nu5545 delivered on December 15, 2005

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the case where the Constitutional Court made a request for adjudication of unconstitutionality, or the case where the request for adjudication of unconstitutionality was made to the Constitutional Court before the decision of unconstitutionality was made, and the case where the relevant law or provision of law was made before the court made a request for adjudication of unconstitutionality, but it is also a general case instituted for the same reason after the decision of unconstitutionality was made. However, the effect of the decision of unconstitutionality is not limited, but it is not limited to that of restrictions on the retroactive effect by other legal principles, and it is rather necessary to limit the retroactive effect of the decision of unconstitutionality in inevitable cases for the maintenance of legal stability or the protection of trust of the parties (see, e.g., Supreme Court Decisions 93Da42740, Oct. 25, 1994; 2004Du7122, Nov. 10, 2005; 2005Du685, May 16, 2005).

Article 21(5)3 of the former Military Pension Act (amended by Act No. 5063, Dec. 29, 1995; hereinafter the same) provides that the scope of retroactive payment of pension should not be determined based on the following circumstances, i.e., the Plaintiffs who were employed for not less than 20 years and were paid retirement pension pursuant to the Military Pension Act. Since the lower court’s determination that the amount equivalent to 1/2 of the respective retirement pension to be paid by the Plaintiffs pursuant to Article 42(2) of the Enforcement Decree of the Military Pension Act was unconstitutional, the lower court’s determination that the above provision on retroactive payment of pension was unconstitutional by comprehensively taking into account the following circumstances, i.e., the status of the institution subject to the Military Pension Act’s unconstitutionality decision, i.e., the status of the institution subject to the Military Pension Act’s unconstitutionality decision, ii., the purpose of which was to prevent retroactive payment of pension after the establishment of its general retirement pension.

Although there is little lack in the reasoning of the court below, the conclusion that the retroactive effect of the decision of unconstitutionality of this case does not extend to this case is just, and there is no error in the misapprehension of legal principles as to the retroactive effect of the decision of unconstitutionality as otherwise alleged in the ground of appeal. There is no ground for appeal.

In addition, the precedents pointed out in the ground of appeal are different from the case and the case, and it is not appropriate to invoke it as it is.

2. Meanwhile, the plaintiffs dismissed the plaintiffs' lawsuit seeking revocation of the disposition rejecting the return of pension, the payment of which was suspended by the judgment of the court of first instance, and even if the plaintiffs changed their claim to a party suit, the court below rejected the appeal by citing the reasoning of the judgment of the court of first instance. However, unlike the allegations, the plaintiffs asserted that the change of claim to a party suit was dismissed in the appeal litigation in the first instance trial, and it is obvious that the changed claim was dismissed. Therefore, there is no reason to

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-soo (Presiding Justice)