[Defendant-Appellee] Plaintiff 1 (Attorney Gyeong-dae, Counsel for defendant-appellee)

Private School Staff Pension Corporation (Government Law Firm Corporation, Attorneys Choi Woo-chul, Counsel for defendant-appellant)

April 10, 2014

1. The plaintiff's claim is dismissed.

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

It is confirmed that there is no debt of KRW 3,953,330 based on the repayment of aggregate on March 29, 2013 to the defendant and the settlement according to the decision to recover the monthly pension amount.

1. Facts of recognition;

A. The plaintiff was appointed as a public official on December 22, 1980 and was dismissed on December 9, 2001, while serving about about 22 years. The plaintiff was appointed as a staff member of a private school on August 1, 2006, when he received a retirement pension reduced to 1/2 pursuant to Article 55(1) of the Enforcement Decree of the Public Officials Pension Act from the Public Officials Pension Service on the grounds that there were grounds for reduction of retirement benefits and retirement allowances under Article 64(1)1 or 2 of the Public Officials Pension Act.

B. On March 2007, the Plaintiff filed an application with the Defendant for adding up the tenure of office pursuant to Article 32(1) of the Pension for Private School Teachers and Staff Act, and recognized that the tenure of office pursuant to the previous Public Officials Pension Act should be added up to the tenure of office of private school teachers and staff, and retired on September 2, 2011.

C. The Defendant was recognized to add the period of service to the Plaintiff on December 22, 2011, and thus, the Defendant returned KRW 50,770,080,00,000, which added interest to the money paid as retirement pension from February 2, 2002 to March 2007, and the Plaintiff won the lawsuit seeking confirmation that the Plaintiff did not have any obligation to return KRW 50,70,080,00 to the money paid as retirement pension from March 2007.

D. The Defendant paid the Plaintiff KRW 38,703,30,00 as retirement pension from October 201 to March 2013. The Defendant returned KRW 12,703,330,00 to the Defendant on March 29, 2013, the Defendant calculated the period of service under the Public Officials Pension Act as retirement pension with a 1/2 limited retirement pension, and paid KRW 22,156,80,00 as a sum of the retirement pension during the above period, and paid KRW 38,70,330,00 as a sum of the remaining retirement pension during the above period. Thus, the Plaintiff is obligated to return the difference to the Defendant, and the Plaintiff returned KRW 12,546,530,00,00 as stated in the above paragraph (c) above to the Defendant, and the Plaintiff returned KRW 12,593,200,000,000 to the Defendant, 305,205,305,305.

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

2. Determination on the cause of the claim

A. The plaintiff's assertion

A person who has received a retirement pension reduced to 1/2 under Article 64(1) of the Public Officials Pension Act and Article 55(1) of the Enforcement Decree of the same Act shall receive a retirement pension which does not restrict the overall period of service when he/she retires after being reappointed as a private school teacher and staff. Therefore, the Plaintiff is not obligated to return to the Defendant the total amount of the retirement pension already received to 38,703,30 won, which is claimed by the Plaintiff, KRW 16,546,530, and accordingly, the Plaintiff’s obligation to the Defendant 3,953,30, based on the settlement according to the decision on the repayment of the total amount of the retirement pension as of March 29, 2013 and the decision on the recovery of the monthly pension amount is not nonexistent.

B. Determination

1) Where a recipient of a retirement pension who retired while serving as a public official is appointed as a teacher or staff of a private school to which the Pension for Private School Teachers and Staff Act applies, the relevant pension shall be suspended during the period of service (Article 47(1) of the Public Officials Pension Act); where a recipient of a retirement pension under the Public Officials Pension Act retires after being appointed as a teacher or staff of a private school and being added up the period of service, the Public Officials Pension Service shall transfer to the defendant an amount equivalent to the retirement pension which the retired teacher or staff is entitled to receive under the Public Officials Pension Act at the time of his/her retirement (Article

Therefore, when a person who has received a retirement pension reduced to 1/2 under Article 64(1) of the Public Officials Pension Act and Article 55(1) of the Enforcement Decree of the same Act is re-appointed as a private school teacher and staff, the Public Official Pension Service shall, when he/she fully suspends the payment of pension during the period of his/her tenure of office and retires from a private school teacher and staff, pay a retirement pension reduced to 1/2 again, and where he/she retires after his/her tenure of office is recognized, the Public Official Pension Service should transfer the amount equivalent to the retirement pension that the teacher and staff can receive under the Public Officials Pension Act at the time of his/her retirement, i.e

As such, the Defendant’s payment of retirement benefits not limited to the Plaintiff solely on the ground that the Plaintiff, who received a limited retirement pension from the Public Official Pension Service even after being transferred, was re-appointed as private school teachers and staff members, is unreasonable to give preferential treatment to the Plaintiff without any basis. In the event of an application for aggregation of the period of service, the Plaintiff would receive limited retirement benefits as already paid by the Public Official Pension Service, and the period of service added up (it does not seem to require any special requirement for adding up the period of service) is not limited to the Plaintiff’s retirement pension, and it is difficult to understand that there is a significant difference between the Plaintiff’s retirement pension not limited to the retirement

2) In case where the Supreme Court rendered a judgment of imprisonment without prison labor or heavier punishment on September 24, 2009, in which a retired private school teacher and staff member were reappointed and added up the tenure of office due to an application for adding up the tenure of office during his/her reappointment, and he/she was sentenced to imprisonment without prison labor or heavier punishment for reasons of his/her reappointment, the Supreme Court held that in case where the retired private school staff member and staff member of the same private school apply for adding up the former tenure of office after being appointed as the same teacher and staff member again, unless there is a legitimate exclusion request for adding up the former tenure of office, the said staff member shall be deemed to have served continuously during his/her former tenure of office. Therefore, the retirement benefits and retirement allowances to be paid after his/her reappointment are related only to the entire tenure of office before and after his/her reappointment and the part concerning the tenure of office after his/her reappointment, and therefore, the retirement benefits and retirement allowances should be recovered in excess of the total tenure of office.

The purport of the restriction on benefits is that if the period of service is added to the same status as in the case of reappointment from a private school teacher and staff member in a private school, the grounds for restriction on benefits should be applied to the total period. The same should apply to the case where the grounds for restriction on benefits occurred during the period of service as the former teacher and staff member in a private school, and the period of service is added up.

In a case where adding up the tenure of office is recognized, the grounds for restriction on benefits arising during the previous tenure of office cannot be deemed extinguished. Rather, if adding up the tenure of office to the same status, the grounds for restriction on benefits should also be deemed as applicable to the entire tenure of office. Whether to recognize adding up the tenure of office can be selected by the parties, and thus, deeming this cannot

3) In the case of a retirement lump-sum payment, the recipient of the limited retirement lump-sum payment should also return the retirement lump-sum payment that is not limited (main sentence of Article 32(2) of the Pension for Private School Teachers and Staff Act). The purport of the above provision is that in a case where the recipient of the limited retirement lump-sum payment is recognized to add up his tenure of office and returns the retirement lump-sum payment that is not limited, the Plaintiff would recognize the retirement benefits that are not limited if he retires thereafter, and accordingly

However, the main text of Article 32(2) of the Pension for Private School Teachers and Staff Act only stipulates that a limited lump sum of retirement benefits shall be returned when a person who received the limited lump sum of retirement benefits has been recognized to include the period of his/her service, and cannot be seen as having provided how to deal with the calculation of retirement benefits if he/she retires thereafter. There may be room to interpret that the recognition of adding up the period of service for a person who received the restriction on retirement benefits is more strict. Even if the provision on the purport of the Plaintiff’s claim is stated, this is limited only to the lump sum of retirement benefits, and the above circumstances are taken into account, it cannot be construed as the Plaintiff’s assertion in the case

4) Where a person who had worked as a public official was subject to restrictions on retirement benefits on the grounds of his public official’s tenure of office, but was appointed as a private school employee, even if his tenure of office was aggregated, whether there was a ground for restrictions on retirement benefits in calculating the retirement benefits ought to be divided into the period of service as a public official and the period of service as a private school employee. In other words, the Plaintiff constitutes a case where a person who had served as a public official under Article 63(1) of the Public Officials Pension Act was sentenced to imprisonment without prison labor or a heavier punishment on the grounds of his/her tenure of office, and thus, the Plaintiff should pay the retirement benefits after the reduction of his/her retirement benefits during the period of service as a public official. Such a ground for restrictions on the payment of benefits as a private school employee, i.e., “where he/she was sentenced to imprisonment without

5) In full view of the facts without dispute, Gap evidence Nos. 1 through 2, Eul evidence Nos. 1 through 3 (including each number), and the purport of the entire pleadings, the defendant paid the money to the plaintiff with a retirement pension from October 2011 to March 2013, 201, to 2,073,180 won each month from October 2, 201 to December 3, 2012, 2,156,100 won each month from January 1 to December 3, 2012, 2,203,530 won each month from January 3, 2013 to March 30, 203, 38,703,703,30 won each month from January 2, 205 to March 3, 205, 206, 306, 1/2016, 305, 2016, 2016, 2015, 1636, 2016.

6) The Plaintiff asserted that the Defendant’s payment of retirement pension that was not previously limited to the Plaintiff constitutes a non-payment of debt under Article 742 of the Civil Act, and thus cannot be claimed. However, there is no evidence to deem that the Defendant paid the retirement pension with knowledge that it was not a debt. Therefore, the Plaintiff’

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Jae-young

1) The concept “private school teachers and staff” includes private school teachers and office staff (Article 2(1)1 of the Pension for Private School Teachers and Staff Act).