The annexed statement "Plaintiff" is as shown in the column (Attorney Yu-ju et al., Counsel for the plaintiff-appellant)

Public Official Pension Corporation

August 27, 2008

1. Seoul Administrative Court Decision 2002Guhap38252 decided Jul. 5, 2007 / 2. Seoul Administrative Court Decision 2002Guhap38252-1 decided Apr. 17, 2008

1. All appeals filed by the plaintiffs are dismissed.

2. All the claims extended in the trial of the relevant plaintiffs stated in the “Comparison of Claim Amount” column for the annexed specifications are dismissed.

3. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

The defendant paid to the plaintiffs the amount corresponding to the "request amount" stated in the separate statement and the amount calculated at the rate of 20% per annum from September 26, 2003 to the date of full payment (the "Comparison of the claim amount" stated in the "Comparison of the amount of the separate statement") by the "amount of reduction" or "extension" stated in the "amount of claim" column of the above detailed statement, the relevant plaintiffs reduced or expanded the claim amount by the "amount of claim amount" in each corresponding amount.

1. The judgment of the court of first instance is revoked in the “Comparison of Claim Amount” column for the annexed specifications: The defendant shall pay to the above plaintiffs the amount corresponding to each of the corresponding items in the “ Claim Amount of the court of first instance” column for the annexed specifications and the amount calculated at the rate of 20% per annum from September 26, 2003 to the date of full payment.

2. The remaining plaintiffs except for the plaintiffs listed in paragraph (1) shall be revoked the first instance judgment. The defendant shall pay to the above plaintiffs the corresponding amount stated in the "amount of claim" column of the attached specifications and the amount calculated at the rate of 20% per annum from September 26, 2003 to the date of complete payment (the pertinent plaintiffs stated in the "Comparison of the above specifications" as "reduction" column were reduced within the scope of the appeal by reducing the claim's purport as above at the trial.)

1. Progress and recognition of the instant lawsuit

A. On September 5, 2002, Nonparty 4 and 11,806 (hereinafter “Plaintiffs”) filed a lawsuit seeking payment of retirement pension with the Seoul District Court. The said lawsuit was transferred to the court of first instance on November 18, 2002 according to the decision of transfer dated November 1, 2002.

Article 43-2 of the former Public Officials Pension Act (amended by Act No. 6328 of Dec. 30, 2000; hereinafter referred to as “former Public Officials Pension Act before amended in 2000”); Article 9 of the Addenda of the former Public Officials Pension Act (amended by Act No. 6328 of Dec. 30, 200; hereinafter referred to as “former Public Officials Pension Act”); sought a payment of the retirement pension calculated pursuant to the amended provisions as above after January 1, 2001, less the retirement pension calculated pursuant to the amended provisions as above (i.e., Article 50,000 won for each plaintiff first of all, as part of the difference in the claim, to expand the claim for the future claim, and (ii) to claim for the amount of a retirement pension calculated pursuant to the amended provisions after January 1, 2001 (hereinafter referred to as “previous claim”).

B. Meanwhile, even in the case of Seoul Administrative Court 2002Guhap43391, which was brought on December 20, 2002, the public officials 4,183 retired from office filed a claim identical to the plaintiffs in the lawsuit of this case and filed a claim for payment of retirement pension (the attorney who accepted the case of this case and the above Seoul Administrative Court 2002Guhap4391 together filed a lawsuit by dividing it into two cases in the order of time entrusted with the lawsuit).

C. On February 5, 2003, the plaintiffs filed an application with the court of first instance for an adjudication on the unconstitutionality of Article 43-2 of the Public Officials Pension Act and Article 9 of the Addenda prior to the amendment in 2000. The Constitutional Court rendered a separate decision on September 25, 2003 to dismiss a request for adjudication on the adjudication on the unconstitutionality of statutes with the same content as the above, Article 43-2 of the above Act, Article 9 of the Addenda, and the plaintiffs dismissed the request for adjudication on the unconstitutionality of statutes from the date for the second trial of the first instance on July 12, 2004.

D. Meanwhile, in the case of the 200HunBa94, 2001HunBa21, Sept. 25, 2003, the Constitutional Court decided that the payment suspension system itself is unconstitutional because it is possible for legislators to reduce the amount of discretion by taking into account the social policy aspects, the financial situation of the State and the fund, etc. However, in the case of a person who is entitled to receive a retirement pension while serving as a public official and is receiving benefits from a certain institution, Article 47 subparag. 2 through 5 of the Public Officials Pension Act, which is a provision on the suspension of payment of a retirement pension, prior to the amendment in 2000, which is a provision on the suspension of payment of a retirement pension, is subject to the overall property rights protection. However, this system is basically a purpose of protecting the right to receive retirement pension after retirement, and its nature is social security. Thus, if a pension recipient newly gets paid income after retirement, the payment suspension system should be delegated to the Ministry of Government Administration and Home Affairs without specifying specific scope.

E. On January 31, 2004, after the decision of unconstitutionality of the first instance of this case was made, the Plaintiffs submitted a preparatory document to the effect that “In addition, Article 47 subparag. 2 through 5 of the Public Officials Pension Act is unconstitutional and invalid, and thus, they shall claim the payment of the retirement pension suspended based on the above provision” (However, there was no change in claiming 50,000 won by each Plaintiff).

F. On July 10, 2004, six of the plaintiffs, including the joint plaintiffs 30 of the first instance court, filed an application for adjudication on the unconstitutionality of Article 47 subparag. 2 and 3 of the former Public Officials Pension Act (amended by Act No. 5117, Dec. 29, 1995; hereinafter "the Public Officials Pension Act before the amendment of 95") with the court of first instance on the ground that Article 47 subparag. 2 and 3 of the same Act is unconstitutional.

G. The plaintiffs, through the preparatory brief dated October 6, 2004, withdrawn the claim in the previous lawsuit on the premise that Article 43-2 of the Public Officials Pension Act before the amendment in 2000 and Article 9 of the Addenda thereto are unconstitutional. Among the plaintiffs, some of the plaintiffs asserted that Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act before the amendment in 2000 and Article 47 subparagraphs 2 and 3 of the Public Officials Pension Act before the amendment in 200 are unconstitutional and invalid, and thus they are in the position to seek payment of the retirement pension suspended under the above provision, and without specifying the corresponding plaintiffs, request the court of first instance of this case to inform the defendant of the list of persons subject to suspension of payment of retirement pension and the amount of the retirement pension suspended.

H. Meanwhile, in the Seoul Administrative Court case No. 2002Guhap4391, Article 47 subparag. 2 and subparag. 3 of the Public Officials Pension Act before the amendment in 95, the Constitutional Court rendered a decision that “Article 47 subparag. 2 and subparag. 3 of the Public Officials Pension Act delegates to the Prime Minister for the suspension of payment of retirement pension before the amendment in 2005, and delegates to the Prime Minister for the suspension of payment of retirement pension to the Presidential Decree, all of which are contrary to the principle of prohibition of comprehensive delegation, and are in violation of the Constitution” (hereinafter “the second decision of unconstitutionality”).

I. On February 28, 2006, after the second unconstitutional decision of unconstitutionality, the legal representative of the plaintiffs who filed the lawsuit was confirmed to have not received the retirement pension under Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act until the time. However, it is intended to expand the purport of the claim against 935 persons confirmed to have not been paid the retirement pension under Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act, but requested the full bench to question the defendant whether there is any further person subject to the retirement pension payment suspension

(j) On March 8, 2007, the legal representative of the plaintiffs who filed the subsequent lawsuit filed an application for amendment of the purport of the payment suspension retirement pension calculated in accordance with the purport of the decision of unconstitutionality of the first and second instances of this case with the court of first instance on March 8, 2007. After that, on March 16, 2007 and May 9, 2007, the claim for the payment suspension of payment under 1801 was finally revised and confirmed (However, on the other hand, two of the parties who became final after the series of amendments, 766, etc. among the parties who filed the subsequent lawsuit, were already killed before the lawsuit of this case was filed, and two of the parties, including the plaintiff 1 and the plaintiff 24, among the persons subject to the payment suspension of payment suspension, died before the lawsuit of this case was filed, and the plaintiff 2, including the plaintiff 22 and the plaintiff 13 (the plaintiff 284 and the plaintiff 24, etc. of this case, respectively, were deceased.).

(k) From the first instance court to the 95 amendment, only six co-Plaintiffs 30 of the first instance court, who were the parties to the application for an adjudication on the unconstitutionality of statutes regarding Article 47 subparag. 2 and No. 3 of the Public Officials Pension Act before the amendment of the 95 amendment, were partly winning the lawsuit, and the remaining plaintiffs were all dismissed or dismissed and lost.

E. Although the plaintiffs of the first instance appeal appealed against the judgment of the first instance court in entirety, the plaintiff of the first instance court of this case appealed from two co-Plaintiffs of the first instance court, including 1260 during the appellate trial, and withdrawal of the appeal by 134 persons including co-Plaintiffs of the first instance court, etc., and the appeal by 115 persons, including 27 co-Plaintiffs of the first instance court, including 105, were filed, and the claim amount was changed by 106 persons, including 20, and finally, the plaintiff of the first instance court of this case, including Plaintiff 20 (Plaintiffs 12 of the judgment of the Supreme Court), was adjusted to the corresponding amount stated in the "claim amount" of the statement.

(m) Meanwhile, the decedents, including Plaintiff 2 (Plaintiff 1 of the judgment of the Supreme Court), who had already died before the instant lawsuit was filed by his heir, and Plaintiff 4 (Plaintiff 28.A. of the judgment of the Supreme Court) who had died during the instant lawsuit and had been appointed as a public official for at least 20 years, except for Plaintiff 24 (Plaintiff 28.A. of the judgment of the court of first instance) and the above Plaintiffs, who had been subject to the procedure of taking over the lawsuit in the first instance and the first instance trial (hereinafter “beneficiarys of the instant retirement pension”), acquired the right to receive a retirement pension by retiring before December 31, 200, while serving as a public official, and thereafter acquired the right to receive a retirement pension by retiring from office before December 31, 200, and

n. Accordingly, the defendant suspended the payment of each amount stated in the "amount of suspension of payment" column for the annexed statement, which is equivalent to 1/2 of the retirement pension, for each period stated in the annexed statement "amount of suspension of payment" and "amount of suspension of payment" column for each period, under Article 47 subparagraph 2 and 3 of the Public Officials Pension Act and Article 47 subparagraph 2 through 5 of the Public Officials Pension Act prior to the amendment of 95 and Article 47 subparagraph 2 through 5 of the same Act before the amendment of 200.

【Grounds for Recognition】 The facts that there is no dispute between the parties to this court, or obvious facts that Gap evidence 1-1 to 1797, and evidence 4-1 to 4-4, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

Although the Defendant’s act of suspending payment of retirement pension against the beneficiary of the retirement pension of this case constitutes an administrative disposition and thus, in order to seek revocation of the retirement pension payment suspension disposition, the instant lawsuit seeking payment of retirement pension under public law is unlawful.

B. Determination

In a case where the payment of part of the retirement pension is suspended due to the amendment of the Act and subordinate statutes during which a retirement pension was paid upon recognition by the Defendant, it is naturally finalized under the amended Act and subordinate statutes, and the amount is not finalized by the Defendant’s decision and notification of the retirement pension. Thus, even if the Defendant expressed his intention of refusal to pay part of the retirement pension, it shall not be an administrative disposition that establishes and determines the right to claim the retirement pension, but it shall be merely an actual and legal opinion as to the existence and scope of the obligation to pay as a party to a legal relationship under public law. Thus, it shall not be deemed an administrative disposition. Such right to claim the payment of the unpaid retirement pension as a right under public law, which is a legal relationship under public law, shall be deemed a party litigation (see Supreme Court Decision 2003Du15195, Dec. 24, 2004). Thus, the Defendant’s assertion that the instant lawsuit is unlawful because it was filed as a party litigation, not an appeal litigation under public law.

3. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion

Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act and Article 47 subparagraphs 2 and 3 of the Public Officials Pension Act before the amendment in 2000, which was the basis of suspending one half of the retirement pension for the beneficiaries of the retirement pension of this case, shall be determined as unconstitutional by the Constitutional Court. Thus, the defendant shall pay to the plaintiffs each amount indicated in the "request" column of the attached statement, which is the whole or part of the pension amount suspended for the past due to the retroactive effect of each decision of unconstitutionality of this case.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Each of the instant cases is subject to adjudication of unconstitutionality

(1) The amendment of Article 47 of the former Public Officials Pension Act

㈎ 공무원으로 재직하다가 퇴직한 사람의 연금지급을 제한하기 위하여 연금지급제한 대상기관을 정한 구 공무원연금법 제47조 제2호 , 제3호 는 1982. 12. 28. 법률 제3586호로 ‘국가·지방자치단체가 자본금의 2분의 1 이상을 출자한 기관 및 한국은행(이하 ‘정부투자기관’이라 한다.)과 국가·지방자치단체 또는 정부투자기관이 단독 또는 공동으로 출자한 총액이 자본금의 2분의 1 이상인 기관으로서 총리령이 정하는 기관( 제2호 )’, ‘국가 또는 지방자치단체가 직접 또는 간접으로 출연금·보조금 등 재정지원을 하는 기관으로서 총리령이 정하는 기관( 제3호 )’으로 전문개정되었다.

㈏ 1995. 12. 29. 법률 제5117호 공무원연금법중개정법률에 의하여 위 구 공무원연금법 제47조 는 제2호 가 ‘국가·지방자치단체가 자본금의 전부 또는 일부를 출자한 기관 및 한국은행(이하 ‘정부투자기관’이라 한다.)과 정부투자기관이 자본금의 전부 또는 일부를 출자한 기관으로서 총리령이 정하는 기관’으로 개정되고, 제4호 ‘국·공유재산의 귀속·무상양여 및 무상대부에 의하여 설립된 기관 또는 국가·지방자치단체의 출연에 의하여 설립된 기관으로서 총리령이 정하는 기관’, 제5호 ‘법령의 규정에 의하여 대통령·중앙행정기관의 장, 지방자치단체의 장 또는 그 권한의 위임을 받은 자가 임원을 선임하거나 그 선임의 승인을 하는 기관으로서 총리령이 정하는 기관’이 각 신설되었으며, 그 부칙 제1조 단서에서 위 제47조 의 개정규정은 2000. 1. 1.부터 시행한다고 규정하였다.

㈐ 1999. 1. 29. 법률 제5716호 공무원연금법중개정법률은 당시 시행되고 있던 구 공무원연금법 제47조 제2호 , 제3호 와 법률 제5117호 공무원연금법 중 개정법률 제47조 제2호 , 제4호 , 제5호 중 ‘총리령’을 각 ‘행정자치부령’으로 하도록 하고, 그 부칙에서는 위 개정법률의 시행일을 공포 후 6월이 경과한 날부터 시행한다고 규정하였다.

㈑ 2000. 12. 30. 법률 제6328호 공무원연금법중개정법률은 위 구 공무원연금법 제47조 를 “① 퇴직연금 또는 조기퇴직연금의 수급자가 이 법, 군인연금법 또는 사립학교교직원연금법의 적용을 받는 공무원·군인 또는 사립학교교직원으로 임용된 때에는 그 재직기간 중 해당 연금의 전부의 지급을 정지한다. ② 퇴직연금 또는 조기퇴직연금 수급자가 연금 외의 소득세법 제19조 의 규정에 의한 사업소득(대통령령이 정하는 사업소득을 제외한다.) 및 제20조 의 규정에 의한 근로소득이 있는 때에는 퇴직연금 또는 조기퇴직연금의 2분의 1 범위 안에서 지급을 정지할 수 있다. 이 경우 소득의 범위 및 지급정지금액 등에 관하여 필요한 사항은 대통령령으로 정한다.”고 전문개정하였으나, 그 부칙 제1조에서 위 규정은 5년의 범위 내에서 대통령령이 정하는 날부터 시행하는 것으로 규정하였다.

Shed Judgment

Article 47 of the former Public Officials Pension Act (amended by Act No. 4716 of Jan. 29, 1999, which is the object of the first decision of unconstitutionality of the instant case, refers to Article 47 subparag. 2 and 5 of the former Public Officials Pension Act (amended by Act No. 4716 of Dec. 28, 1982), and Article 47 subparag. 2 and 3 of the Public Officials Pension Act (amended by Act No. 3586 of Dec. 28, 1982, which is the object of the second decision of unconstitutionality of the instant case, refer to Article 47 subparag. 2 and 3 of the same Act (amended by Act No. 3586 of Dec. 28, 198

D. Whether to recognize the retroactive effect of the decision of unconstitutionality

(1) The effect of the decision of unconstitutionality of the Constitutional Court is as follows: (a) the pertinent case which requested the Constitutional Court to make a decision of unconstitutionality; or (b) the same case which requested the Constitutional Court to make a decision of unconstitutionality before the decision of unconstitutionality; or (c) the same case which requested the court to make a decision of unconstitutionality before the decision of unconstitutionality; (d) the relevant law or the relevant provisions are the premise of the decision of unconstitutionality and are pending in the court; and (e) the general case which was brought for the above reasons after the decision of unconstitutionality has been made. However, the effect of the decision of unconstitutionality cannot be limited to a limited extent; and (e) the restriction of the retroactive effect of the decision of unconstitutionality is rather requested in the principle of unconstitutionality (see Supreme Court Decision 2006Du1296, Jun. 9, 2006).

B. In light of the following circumstances, the retroactive effect of the decision of unconstitutionality is limited since the request for the maintenance of legal stability and the protection of trust in the public officials pension system established by the previous laws and regulations is significantly superior to the request for the detailed validity of the plaintiffs' rights protection with respect to general cases filed after each of the unconstitutional decisions of unconstitutionality of this case (see Supreme Court Decision 2006Du1296, Jun. 9, 2006, etc.).

㈎ 헌법재판소는 이 사건 각 위헌결정에서 퇴직연금 지급정지제도 자체가 위헌이라고 하지는 않았고, 각 심판대상 조항인 구 공무원연금법 제47조 가 퇴직연금 지급정지대상기관 및 지급정지의 요건·내용을 정함에 있어 구체적으로 범위를 정하지 아니하고 포괄적으로 행정자치부령 또는 총리령 및 대통령령에 위임한 것이 헌법에 위반된다고 하였다.

㈏ 이 사건 각 위헌결정의 소급효가 인정된다고 보면 퇴직연금 수급자에 대하여 퇴직연금 전액을 지급하게 되므로 헌법재판소가 합헌이라고 판단한 퇴직연금 지급정지제도 자체의 적용이 전면 배제되는 결과 주로 입법기술적인 이유로 인하여 사실상 과잉급부를 하는 셈이 될 뿐만 아니라, 그로 인하여 현실적으로 연금기금조성을 담당하는 현역공무원 및 국고의 초과부담을 초래하게 된다.

㈐ 퇴직연금은 그 수급권자들이 재직기간 중 납부한 기여금 및 국가의 부담금을 재원으로 하여 지급되는 것인데, 퇴직연금 수급권자들에게 임금 등 소득이 새로 발생하였다면 이러한 사람들에게는 원래 그들이 납부한 기여금을 초과하여 국가 등의 부담금에 기하여 지급되는 퇴직연금 부분은 지급을 정지하는 것이 오히려 소득상실보전이라는 퇴직연금제도의 취지에 부합한다.

In light of the above legal principles, as seen in Paragraph 1 above, since the plaintiffs filed the lawsuit of this case several times and then there was a decision of unconstitutionality of the first and second cases in the process of modifying the cause of the claim and purport of the claim, the question is whether the case constitutes the pertinent case, the same kind of case, or the general case that does not have effect in relation to each of the above decisions of unconstitutionality.

E. Whether the effect of the decision of unconstitutionality of the first instance of this case affects the instant case

(1) The plaintiffs asserted that the decision of unconstitutionality of the first instance constitutes concurrent cases that had already been pending before the decision of unconstitutionality of the first instance of this case, and thus the said decision of unconstitutionality extends to this case.

In other words, the claim in the previous lawsuit was filed on September 5, 2002, which was before the first decision of unconstitutionality, and continued to exist in this court. Although the Constitutional Court decided that it was constitutional, Article 43-2 of the Public Officials Pension Act before the amendment in 2000 and Article 9 of the Addenda of the former Public Officials Pension Act claimed the difference in the amount of the retirement pension mediation on the premise that the above decision of unconstitutionality is null and void. However, on January 31, 2004, after the first decision of unconstitutionality, the plaintiffs added an argument to seek the payment of the retirement pension suspended under the provisions of subparagraphs 2 through 5 of Article 47 of the Public Officials Pension Act before the amendment in 200, which was declared as unconstitutional after the first decision of unconstitutionality. However, the above two arguments are the same in that the above beneficiary's claim for payment of the retirement pension not received by the above beneficiary was established, and therefore, it cannot be deemed that there was a change in the previous claim.

Shed Judgment

As seen earlier, a claim in the previous lawsuit of this case was filed with respect to the adjustment of the amount of the amount of the pension in the previous lawsuit, and the system was abolished based on the monthly remuneration amount corresponding to the salary class at the time of retirement in the previous lawsuit and changed to the adjustment of the amount of the amount of the pension in 2000 to be linked to the consumer price inflation in the previous year, and on the ground that Article 43-2 of the Public Officials Pension Act and Article 9 of the Addenda of the former Public Officials Pension Act of 2000 was unconstitutional and void, which was calculated pursuant to the previous provisions before and after January 1, 201, deducting the retirement pension calculated pursuant to the above amended provisions from the retirement pension after January 1, 201. The plaintiffs' assertion in the course of the subsequent lawsuit of this case was sought for payment based on these unconstitutional provisions under the premise that Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act of 200 prior to the amendment was unconstitutional and void.

However, even if the plaintiffs sought payment of unpaid retirement pension on the premise that the above two arguments were unconstitutional and void under the provision on the grounds that the legal basis, nature, and scope of the above two claims are different from each other, it is reasonable to regard the above two claims as a separate subject matter of lawsuit rather than merely a difference in a simple method of attack. Therefore, even if Article 43-2 of the Public Officials Pension Act before the amendment in 2000 and Article 9 of the Addenda of the former Public Officials Pension Act on the premise that the claim in the previous lawsuit in this case continued in this court on the ground that Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act before the amendment in 200 are unconstitutional and void, it cannot be said that the lawsuit continues in this court on the premise that the above claim in this case on the premise that Article 43-2 of the Public Officials Pension Act before the amendment in 200 and Article 9 of the Addenda of the Public Officials Pension Act is unconstitutional and void, even if the judgment against the plaintiff becomes final and conclusive, it can be filed for the payment of retirement pension before the amendment in 2000.

However, only after the amendment of Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act before the amendment in 2000, the plaintiffs filed a lawsuit or a legal assertion on the premise that Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act is unconstitutional or invalid. Thus, among the plaintiffs' claims in this case, the part on the claim for payment of a retirement pension suspended under Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act before the amendment in 2000 cannot be deemed as a concurrent case pending in this court in relation to the decision of unconstitutionality of the first time, and merely a general case that was instituted thereafter, the validity of the above decision of unconstitutionality is limited and thus is not affected.

In addition, even though the plaintiffs have made an explicit claim in the complaint stating the claim in the previous lawsuit of this case, it is effective within the scope of the subject matter of lawsuit which is claimed by the complaint, and thus, the remaining claim with the effect of continuation of lawsuit is limited to the claim under the premise that Article 43-2 of the Public Officials Pension Act and Article 9 of the Addenda of the Public Officials Pension Act of 2000 are unconstitutional and invalid, and it cannot be deemed that the effect of continuation of lawsuit is limited to the claim under the premise that Article 47 subparagraphs 2 through 5 of the Public Officials Pension Act of 200 which is a separate subject matter of lawsuit is unconstitutional

Therefore, this part of the plaintiffs' assertion is rejected.

F. Whether the second unconstitutional decision of this case affects this case

(1) The plaintiffs' assertion

With regard to the decision of unconstitutionality of the instant case, the Plaintiffs asserted the payment of a retirement pension suspended for payment on January 31, 2004, which was declared unconstitutional after the Plaintiffs’ first decision of unconstitutionality. On July 10, 204, six including the joint Plaintiff in the first instance trial and 30, etc. among the plaintiffs who filed a lawsuit on July 10, 2004, were entitled to the second unconstitutional decision of unconstitutionality of the instant case on the grounds that Article 47 subparag. 2 and 3 of the Public Officials Pension Act was unconstitutional, and thus, they failed to provide specific support to the court prior to the second unconstitutional decision of unconstitutionality of the instant case on the grounds that all the plaintiffs who filed a lawsuit of this case were unconstitutional, or failed to provide specific support to the court prior to the second unconstitutional decision of unconstitutionality of the instant case on the grounds that Article 47 subparag. 2 and 4 of the same Act were unconstitutional.

Shed Judgment

In full view of the following circumstances, the process of the instant lawsuit and the facts of recognition as seen earlier, it cannot be said that the instant case seeking payment of a retirement pension suspended under the above provisions on the premise that Article 47 Subparag. 2 and 3 of the Public Officials Pension Act was unconstitutional before the second unconstitutional decision was made in 95.

㈎ 소제기 원고들이 95년 개정 전 공무원연금법 제47조 제2호 및 제3호 가 위헌임을 전제로 명시적인 소변경을 한 것은 이 사건 2차 위헌결정이 나오고도 상당한 기간이 지난 2007. 3. 8. 이후의 일이다.

㈏ 소제기 원고들이 이 사건 2차 위헌결정 전인 2004. 10. 6.자 준비서면을 통하여 95년 개정 전 공무원연금법 제47조 제2호 , 제3호 의 규정이 위헌·무효임을 전제로 소제기 원고들 중 일부가 위 규정을 근거로 지급정지된 퇴직연금의 지급을 청구할 수 있는 지위에 있다는 주장을 하기는 하였으나, 이 사건 2차 위헌결정이 있기 전까지 위 규정을 근거로 지급정지된 퇴직연금을 청구할 수 있는 원고들이 누구인지 전혀 특정하지 아니하였고, 단지 소제기 원고들 중 1심 공동원고 30 등 6명만이 2004. 7. 10. 이 사건 제1심 법원에 95년 개정 전 공무원연금법 제47조 제2호 , 제3호 가 위헌임을 이유로 위헌법률심판제청신청을 하였을 뿐이다.

㈐ 소제기 원고들 중 퇴직연금의 2분의 1이 지급정지되고 있던 해당 본인들은 당연히 그 퇴직연금 지급정지 여부에 관하여 누구보다 잘 알고 있고, 지급정지된 퇴직연금액의 산정을 위한 자료를 가지고 있거나 용이하게 이를 구할 수 있었음에도 불구하고, 소제기 원고들은 이 사건 소를 제기한 지 무려 2년 이상이 지나서야 퇴직연금이 지급정지된 사람이 일부 있다고 밝혔을 뿐 구체적으로 소제기 원고들 중 퇴직연금 지급정지 대상자가 누구인지, 그 지급정지된 퇴직연금액이 얼마인지는 전혀 특정하지 아니함으로써 11,806명에 달하는 소제기 원고들 중 누가 95년 개정 전 공무원연금법 제47조 제2호 , 제3호 에 의하여 지급정지된 퇴직연금의 지급을 구하는 청구를 하고 있는지 전혀 알 수 없는 상태여서, 그 뒤 이 사건 2차 위헌결정이 있고도 1년 4개월 넘게 지난 2007. 3. 8. 이후에야 일련의 소변경 과정을 통하여 비로소 특정된 원고들{최종적으로 소제기 원고들 중 약 15%(퇴직연금 수급권자들 기준)만이 퇴직연금 지급정지의 대상자라고 소변경 하였다.}이 그와 같은 청구를 하고 있었다고 보기 어렵다.

㈑ 소송자료의 확보에 관한 사항은 원칙적으로 원고들을 기준으로 판단하여야 할 것이지 원고들의 소송대리인을 기준으로 판단하여야 할 것은 아니고, 더구나 이 사건에서와 같이 소제기 원고들에 대한 퇴직연금 지급과 관련한 기본적인 내역이나 정보에 대해서는 원고들 개개인이 당연히 알고 있을 사항일 뿐 아니라, 그 자료도 필요한 시점에 스스로 확보할 수 있을 것이어서 그 소송자료의 입수 시기 및 그 가능성 등은 원고들을 기준으로 판단하여야 할 것이고, 원고들 소송대리인이 소제기 원고들의 수가 워낙 많아 그와 같은 소송자료를 확보하기 어렵거나 곤란하여 적기에 청구취지변경 및 원고들 특정을 할 수 없었거나 위헌법률심판제청신청시에 신청인들을 한정할 수밖에 없었다는 사정은 그로 인한 소송행위의 효력을 달리 보아야 할 사유에는 전혀 해당하지 아니한다.

【Finality

Therefore, among the claims in this case, the part concerning the claim for a retirement pension that was suspended under Article 47 subparag. 2 and subparag. 3 of the Public Officials Pension Act before the amendment of 95 is also limited to the retroactive effect of the above second unconstitutional decision because it constitutes a general case in relation to the second unconstitutional decision of this case. Therefore, the plaintiffs' assertion on this part cannot be accepted.

4. Conclusion

Therefore, the judgment of the court of first instance that dismissed the claim of this case, including the claim extended in the trial of the relevant plaintiffs, as stated in the "Comparison of Claim Amount" in the "Comparison of Claim Amount" as stated in the "Expansion" column, and it is legitimate in the judgment of the court of first instance that dismissed the claim of the relevant plaintiffs and the remaining claims of the plaintiffs, and thus, all of the claims extended in the trial of the relevant plaintiffs as stated in the "Comparison of Claim Amount" column of the plaintiffs' appeal and the above specifications are dismissed. It is so decided as per Disposition by the assent.

[Attachment]

Judges Cho Yong-ho (Presiding Judge)