Plaintiff

The Government Employees Pension Service

November 14, 2013

1. On December 21, 2012, the Defendant revoked the decision not to grant the Plaintiff an aggregate of his service period.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On January 1, 2006, the Plaintiff was appointed as a Air Force officer, and was discharged from a disease due to official duty on June 30, 2008, and was determined as a recipient of a pension for wounds.

B. On November 30, 2012, the Plaintiff was appointed as a state public official, and on December 11, 2012, the Plaintiff applied for the aggregation of the military service period to the Defendant.

C. On December 21, 2012, the Defendant rendered a decision not to approve the adding up the period of service to the Plaintiff on the ground that “the Plaintiff, as a recipient of a wounded veterans’ pension, is unable to calculate the amount to be returned because there is no lump sum of retirement benefits under the Military Pension Act, and, if the adding up the period of service of a recipient of a wounded veterans’ pension is recognized, shall receive benefits from both the public official pension and the Military Pension.” (hereinafter “instant disposition”).

D. The Plaintiff filed a request for an examination of the instant disposition with the Public Official Pension Benefit Review Committee, and the Public Official Pension Benefit Review Committee dismissed the Plaintiff’s request on May 28, 2013.

[Ground of recognition] Facts without dispute, entry of Eul 1 to 4 evidence, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① Articles 23 and 24 of the Public Officials Pension Act do not exclude a pension recipient of a wounded veterans' pension from the period of service; ② If the Public Officials Pension Act acknowledges that the recipient of a wounded veterans' pension will be added to the period of service, it is unreasonable to exclude the recipient of a wounded veterans' pension under the Military Pension Act from the period of service; ③ Disability pension and a retirement pension are recognized under the Public Officials Pension Act; ④ If a recipient of a wounded veterans' pension is appointed as a public official, the payment of a wounded veterans' pension is suspended under Articles 25 and 21-2(1) of the Military Pension Act; ④ if the sum of the period of service is not recognized as the sum of the suspension of payment of a wounded veterans' pension and the period of service at the same time, the payment of contributions is made by the plaintiff in the military service; ② If the recipient of a wounded veterans' pension transfers the amount equivalent to the pension for the plaintiff's military service to the defendant Corporation by applying Article 70 of the Public Officials Pension Act mutatis mutandis, the disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

The instant disposition is unlawful for the following reasons.

(1) Article 23(2) of the Public Officials Pension Act provides that “Where a retired public official, soldier, or private school teacher (excluding a person who was not subject to this Act, the Military Pension Act, or the Pension for Private School Teachers and Staff Act) is appointed as a public official, the period of service or service under the previous relevant Pension Act may be added to the period of service under Article 23(1) at his/her own request.” Thus, a retired soldier may add the period of service to the period of service. The

(2) Article 24(2) of the Public Officials Pension Act provides, “Where a person whose tenure of office has been recognized by filing an application for adding up the tenure of office pursuant to paragraph (1) applies for such adding up, he/she shall return to the GEPS the amount of retirement benefits received at the time of his/her retirement [where he/she is subject to restrictions on benefits pursuant to Article 64 (including cases applied mutatis mutandis in Article 42 of the Pension for Private School Teachers and Staff Act) or Article 33 of the Military Pension Act, it shall be the amount of benefits to be received in the absence of such restrictions] by adding interest prescribed by Presidential Decree to the amount of benefits to be returned: Provided, That where a person whose tenure of office has been recognized by adding up the tenure of office is a recipient of a retirement pension, early retirement pension or retirement pension, he/she shall not return the benefits which are the pension.” Article 24(4) of the Public Officials Pension Act provides, “Where a person who has been recognized by adding up the tenure of office applies for exclusion in all or part of the recognized tenure of office, or in arrears of the amount of benefits to be returned.”

(3) Article 19(1) of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “former Military Pension Act”) provides that “where a ground arises to pay a retirement pension, a wounded veterans’ pension, or a bereaved family’s pension due to the death of less than 20 years, it shall be paid by allowing the same person to select benefits favorable to him/her; and Article 24(2) provides that “a person who has the right to receive a wounded veterans’ pension shall not be paid a lump sum retirement pension or a lump sum retirement pension;” Article 24(2) provides that “where the disability of a person who has the right to receive a wounded veterans’ pension does not fall under all levels of a wounded veterans’ pension;” Article 19(3) provides that “Where a person who has the right to receive a lump sum retirement pension becomes unable to receive a lump sum retirement pension;” Article 19(2) provides that “where the person who has the right to receive a retirement pension becomes more than the retirement pension, he/she shall receive a lump sum.”

In full view of the above provisions, a pension for wounds under the former Military Pension Act is merely a case where a soldier retires due to the disability caused by a disease or injury incurred in the course of performing his/her duties, or is disabled due to such disease or injury after his/her retirement (Article 23(1) of the former Military Pension Act), and it is merely a case where a soldier paid the amount equivalent to a retirement lump sum or retirement pension by changing the name of the “retirement lump sum or retirement pension” to a pension for wounds until it reaches the amount corresponding to the “retirement lump sum or retirement pension,” and it is meaningful as an accident compensation, which is distinguished from the “retirement lump sum or retirement pension” only for the amount exceeding the “retirement sum or retirement pension.” Therefore, even if the amount exceeds the above amount (hereinafter “excess portion”), it can be deemed that the amount in substance differs from the retirement benefit in this respect (Article 42 subparag. 1 of the Public Officials Pension Act and Article 45(1)4 of the Public Officials Pension Act).

As such, the retirement portion is merely a substitute of the “retirement lump-sum or retirement pension,” even if the recipient of a pension for wounds was paid the retirement portion, there is no reasonable ground to be treated as discrimination in adding the period of service to the person who received the “retirement lump-sum or retirement pension.” Since the recipient of a pension for wounds is paid disability benefits corresponding to the “Lump-sum or retirement pension” under the former Military Pension Act, and the recipient of a pension for wounds is paid the amount of disability benefits and retirement benefits together, there is no reasonable ground to be treated as discrimination in adding the period of service, compared to the recipient of disability benefits and retirement benefits.

Therefore, it is reasonable to interpret that the recipient of a pension for wounds who was entitled to receive a lump sum of retirement should return the money equivalent to the lump sum of retirement under Article 24 (2) of the Public Officials Pension Act after being added to the service period, and the Minister of National Defense should transfer the "amount equivalent to the retirement pension" under Article 70 (1) of the Public Officials Pension Act to the defendant Corporation in case the recipient of a pension for wounds who could have received a retirement pension retires or dies after being added to the service period.

(4) The defendant asserts that the plaintiff would receive a pension for wounds under the former Military Pension Act in addition to the retirement benefits under the Public Officials Pension Act if the plaintiff retires, and that the same beneficiary will receive double benefits for the same service period.

On the other hand, the defendant's double beneficiary argument is premised on the plaintiff's receipt of a pension for wounds when the plaintiff becomes a retirement benefit under the Public Officials Pension Act in the future. However, Article 24 of the former Military Pension Act provides that the disability rating which serves as the basis for calculating the amount shall be changed or extinguished according to the disability of the beneficiary of a pension for wounds, and therefore, the plaintiff may not receive a pension for wounds under the condition of disability.

Even if the condition of disability is maintained, in the case of the recipient of a pension for wounds who was entitled to receive a lump sum of retirement benefits, the amount equivalent to the lump sum of retirement benefits will remain more than the amount of the pension for wounds by returning the amount equivalent to the lump sum of retirement benefits after adding up the period of office to the defendant Corporation, which cannot be considered as a benefits of the same nature as retirement benefits under the Public Officials Pension Act. Therefore, even if the pension for wounds and retirement benefits

Next, Article 19 (1) of the former Military Pension Act provides that "where a ground arises to pay a retirement pension or pension for wounds or a bereaved family member's pension due to the death of a soldier who has served for less than 20 years, the benefits shall be paid alternatively to him/her." Article 24 (6) provides that "a person who has already received a retirement pension, a lump-sum retirement pension, or a lump-sum retirement pension deductions shall return the benefits received at the time of retirement, the lump-sum retirement pension, or the lump-sum retirement pension deductions shall add interest thereto to the Military Pension Fund." Since Article 19 (1) of the former Military Pension Act provides that the Minister of National Defense shall pay a pension for wounds on the premise that financial resources of the retirement pension are reserved in the Military Pension Fund, the financial resources of the national or local government shall be extinguished by deducting "amount equivalent to the retirement pension" from the national or local government's pension under Article 70 (1) of the Public Officials Pension Act, and the defendant shall not pay benefits equivalent to the benefits of the State or local government under this Act."

Therefore, the fact that the plaintiff is entitled to both the pension for wounds and the retirement benefits under the Public Officials Pension Act cannot be a ground for the decision of non-approval of adding up the tenure of office.

[As a result, a recipient of a pension for wounds who could have been paid a lump sum of retirement benefits does not actually receive any accident compensation in cases where the amount of a pension for wounds is less than the temporary amount of retirement benefits due to improvement of disability, etc. In addition, a recipient of a pension for wounds who could have received a retirement pension does not actually receive any accident compensation in cases where the amount of a pension for wounds does not exceed the amount of a retirement pension, and there is a high risk that the payment of the total amount of a pension for wounds or the amount equivalent to a retirement pension would be refused or deducted from the retirement benefits under the Public Officials Pension Act. On the other hand, the Public Officials Pension Act provides that the recipient of a pension shall be paid both retirement benefits and disability benefits, even if the amount of a pension falls short of the "retirement lump sum or retirement pension", it would be sufficient to return the retirement lump sum which was actually paid at the time of retirement to the defendant Corporation, and there is no possibility that the payment of a pension for wounds benefits would be deducted from the retirement benefits under the former Public Officials Pension Act or the retirement pension for the same reason.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

[Attachment]

Judges Lee Lee (Presiding Judge) (Presiding Judge)