2010Guhap34217 and revocation of disposition of restricting and recovering benefits

A

The Government Employees Pension Service

December 7, 2010

January 6, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On January 29, 2010, the Defendant revoked the disposition of restricting benefits and recovering limited pensions against the Plaintiff.

1. Details of the disposition;

A. The Plaintiff, while serving as a state public official in the National Science Museum belonging to the Ministry of Education, Science and Technology, presented the honorary retirement center on March 1, 2009, and on the 17th day of the same month, voluntarily retired on April 30, 2009.

B. On August 11, 2009, the Plaintiff was sentenced to a two-year decision of suspension of execution in six months of imprisonment with prison labor for the following facts in the case of violation of the Punishment of Violences, etc. Act (a collective, deadly weapons, etc.) (around April 29, 2009, threat the victim to his/her decline at around 09:30). On August 19, 2009, the above decision became final and conclusive on August 19, 2009. Meanwhile, on March 29, the Constitutional Court continued to comply with Article 64(1)1 of the former Public Officials Pension Act (amended by Act No. 9905, Dec. 31, 2009; hereinafter referred to as the "former Act") until the unconstitutionality of Article 64(1)1 of the former Public Officials Pension Act (amended by Act No. 12053, Dec. 13, 2009).

D. However, the above Constitutional Court’s ruling of inconsistency with the Constitution was not enacted even after the legislative deadline. The Defendant paid to the Plaintiff the total amount of KRW 16,504,000 for retirement pension, which did not apply the pension restriction provisions under Article 64(1)1 of the former Act from May 2, 2009 to December 2, 2009, and retirement allowance of KRW 53,418,960 for retirement allowance.

E. Since then, according to the Constitutional Court's decision of inconsistency with the Constitution, Article 64 (1) 1 of the former Act was amended by Act No. 9905 on December 31, 2009. Article 64 (1) 1 of the amended Public Officials Pension Act (hereinafter "the amended Public Officials Pension Act") provides that "where a person is sentenced to imprisonment without prison labor or heavier punishment due to a reason attributable to a reason attributable to his or her former position, he or she shall be paid a reduction of part of retirement benefits and retirement allowances: Provided, That where he or she is due to a negligence unrelated to his or her duties or due to a negligence due to his or her superior's legitimate order, he or she shall be excluded from the grounds for restriction on benefits. In addition, the proviso of Article 1 of the Addenda to the new Act (hereinafter "the proviso to the new Act") provided that "Article 64 (1) of the former Act shall apply from January 1, 2009," and Article 7 (1) of the Addenda to the new Act shall also apply to the retirement pension for 10 years 10.

F. Accordingly, in accordance with Article 64(1)1 of the new Act and each of the supplementary provisions of this case, the defendant issued a disposition restricting benefits that the amount of retirement pension paid to the plaintiff from May 29, 2009 to December 2009 equivalent to 1/2 of total retirement pension amounting to 8,252,000 won and 26,709,480 won out of retirement pension amounting to 1/2 of total retirement pension amounting to 8,252,000 won and 26,709,480 won (hereinafter referred to as the "recollection disposition of this case") and the retirement pension amount paid from January 2010 to 1/2 of retirement pension amount (hereinafter referred to as the "disposition of this case").

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, evidence 4-1, 2, Eul evidence 1 to 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant disposition based on the premise that the Plaintiff is subject to restrictions on retirement benefits is unlawful, since the Plaintiff’s criminal facts that the Plaintiff was sentenced to imprisonment without prison labor or heavier punishment are irrelevant to his/her duties.

2) The proviso to the supplementary decree of this case provides that Article 64 of the new Act shall apply from January 1, 2009, thereby reducing the retirement pension retroactively. Thus, the proviso to the supplementary decree of this case violates the principle of prohibition of property deprivation by retroactive legislation of Article 13(2) of the Constitution, and thus, the disposition of this case based on the unconstitutional law is unlawful.

3) Since the Plaintiff was excluded from the duties of a public official on April 17, 2009, the instant disposition based on the premise that the Plaintiff was a public official at the time of committing the instant crime was unlawful. 4) The instant disposition that retroactively redeems 1/2 of retirement pension, etc. on the ground that the Plaintiff committed a crime one day before the end of the public official’s status, violates the principle of proportionality, and is unlawful by abusing and abusing discretion.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) According to Article 64(1)1 of the new Act regarding the first argument, where a former public official is sentenced to imprisonment without prison labor or heavier punishment for a reason that he/she is in office, part of the retirement benefits and retirement allowances shall be reduced and paid as prescribed by Presidential Decree, but the same shall not apply to cases due to negligence unrelated to his/her duties or due to negligence while complying with a legitimate order of his/her superior. In light of the language and text of the above legal provision or the form of the provision, “where he/she is not related to his/her duties” and “cases due to negligence” shall not be separately defined, but where a former public official is sentenced to imprisonment without prison labor or heavier punishment due to a reason that he/she is in office, part of the retirement benefits and retirement allowances shall be reduced. However,

As seen earlier, the Plaintiff was sentenced to imprisonment without prison labor or a heavier punishment due to a violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.) and the crime appears to be unrelated to the Plaintiff’s official duties or is an intentional crime. As such, the Plaintiff’s case does not constitute “a case where he was sentenced to imprisonment without prison labor or a heavier punishment due to a negligence unrelated to his duties” under Article 64(1)1 of the new Act. Therefore, this part of the Plaintiff’s assertion is without merit.

2) As long as the Constitutional Court rendered a ruling of inconsistency with the Constitution as to the second legal provision, and entrusts the legislative discretion to establish the legislative branch with the right to revise or abolish such provision constitutionally, the retroactive application of the amended provision and the scope of retroactive application, in principle, depends on the legislative discretion (see Supreme Court Decision 2007Du21563, Jan. 17, 2008). The purpose of the instant ruling of inconsistency with the Constitution is to reduce retirement benefits, etc. when a public official is sentenced to imprisonment without prison labor or heavier punishment due to a reason during which he/she is in office, to compensate for his/her duties during the period of his/her retirement, it is rather unreasonable to equally treat public officials who have failed to perform the duty (such as duty of loyalty, duty of compliance with statutes, duty of order, confidentiality, duty of confidentiality, etc.) due to the fact that the above provision is unreasonable, and thus, it is difficult to view that the Plaintiff is a public official who has been subject to a new provision of the Act or duty of ex officio to prevent a public official from performing his/her duty or duty.

3) As seen earlier, the Plaintiff’s awareness of honorary retirement around April 17, 2009 and the fact that the Plaintiff voluntarily retired on April 30, 2009 with respect to the third assertion is clear that the date of such voluntary retirement is April 30, 2009, and even if the Plaintiff was aware of such voluntary retirement, the Plaintiff maintained his status as a public official at the time of April 29, 2009, which is the date of the instant crime, and thus, the instant crime should be deemed as a ground for during his term of office, and therefore, this part of the assertion based on the premise that the Plaintiff retired on April 17, 2009 cannot be accepted.

4) According to Article 64(1) of the new Act and Article 55(1)1 of the Enforcement Decree thereof regarding the fourth argument, where a person who was a public official was sentenced to imprisonment without prison labor or heavier punishment for reasons of his/her term of office, the retirement benefits of a person whose term of office is not less than five years shall be reduced by 1/2 of that amount, and retirement allowances shall be reduced by 1/2 of that amount, and the disposal agency’s discretion shall not be permitted to such reduction. Thus, even if there are such reasons as asserted by the Plaintiff, there is no room for the issue of deviation from or abuse of

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The assistant judge of the presiding judge;

Judges Cho Jae-he

Judges Cho Jong-chul