Plaintiff

Public Official Pension Corporation

June 13, 2007

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The defendant shall pay 20,000 won to each of the designated parties listed in the list of the plaintiffs (appointed parties, hereinafter referred to as the plaintiff) and the annexed persons and each of them at the rate of 5% per annum from each of the relevant days to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by adding up the whole purport of pleadings to each entry in Gap evidence 1-1 to 25:

A. The designated parties indicated in the separate sheet including the Plaintiff (hereinafter “Plaintiffs, etc.”) served as public officials in the Eastwestbook, etc., and retired from office on each date indicated in the separate sheet of retirement allowances as of the retirement date stated in the separate sheet of retirement allowances.

B. The defendant decided the plaintiff et al. as the beneficiary of the retirement allowance under Article 61-2 (1) of the Public Officials Pension Act, and paid the retirement allowance calculated under Article 61-2 (2) of the Public Officials Pension Act and Article 52-3 of the Enforcement Decree of the same Act as the corresponding amount in the column for the receipt retirement allowance indicated in the annexed list of retirement allowances. The designated purchaser did not pay the retirement allowance to the above designated purchaser on the ground that there was no retirement allowance system under the Public Officials Pension Act at the time of retirement by the designated purchaser

C. The Plaintiff, etc., other than the designated parties 6, did not file an appeal against the Defendant’s decision on the payment of the above retirement allowance at the time of his retirement, and did not request the Defendant to pay the retirement allowance (the retirement allowance (the retirement allowance computed under the Labor Standards Act and the Act on the Guarantee of Workers’ Retirement Benefits) claimed that additional payment should be made prior to his filing of the instant lawsuit (the relevant provisions under the Public Officials Pension Act and the Enforcement Decree thereof are unconstitutional and invalid, and thus, the amount calculated by deducting the retirement allowance already received pursuant to the Public Officials Pension Act from the retirement allowance calculated under the Labor Standards Act and the Act on the Guarantee of Workers’ Retirement Benefits: Each relevant amount in the balance retirement allowance recorded in the separate retirement allowance list: the designated parties did not request the Defendant to pay the retirement allowance (the

D. As the instant lawsuit, the Plaintiff et al. sought 20,000 won in each of the corresponding amounts in the column for the difference retirement allowances listed in the separate sheet of each of the aforementioned separate retirement allowances and damages for delay.

2. Whether the lawsuit of this case is lawful

A. Defendant’s defense prior to the merits

(1) Absence of illegality

In order for the plaintiff et al. to bring a legal suit against the defendant, there is a violation of the relevant statutes by erroneously applying the period of service, the permission for erroneous calculation of monthly remuneration, or the payment rate of monthly remuneration when the defendant determines and pays retirement allowances, or there is a specific fact of illegality such as causing property loss or infringing rights to the plaintiff et al. due to occupational mistake. However, the lawsuit of this case filed without such unlawful fact is unlawful.

(2) Type of action

In order to receive various benefits under the Public Officials Pension Act, a claim for payment cannot be filed as a party suit even if it falls under the legal requirements. In case where the defendant first requests the defendant to recognize his right and the defendant refuses a claim for recognition or only some of the claims are recognized, an appeal suit should be filed against the disposition. However, since the lawsuit of this case seeking payment of benefits is filed as a party suit, it is unlawful.

B. Determination

(1) Absence of illegality

Since whether or not the defendant has illegally paid or decided a retirement allowance cannot be considered as a litigation requirement for a party suit, the defendant's above defense is without merit.

(2) Type of action

A) Article 26 (1) of the Public Officials Pension Act provides that "All kinds of benefits shall be paid by the Corporation upon request by the head of the agency to which the person entitled to receive them belongs, upon confirmation by the head of the agency to which the public official belongs: Provided, That in the determination of kinds of benefits prescribed by Presidential Decree, it shall undergo deliberation by the Public Official Pension Benefit Council, and disaster relief money and condolence money of local public officials shall be paid by the head of the local government by the decision of the head of the local government." Article 26 (3) of the same Act provides that "the authority of the Minister of Government Administration and Home Affairs concerning the determination of benefits under paragraph (1) may be entrusted to the Corporation as prescribed by Presidential Decree." Article 42 (4) of the same Act recognizes retirement allowances as a kind of long-term benefit, and Article 83 (1) of the same Act provides that "the head of the agency shall investigate and confirm the occurrence of grounds for benefits under this Act, payment of contributions, and other personal status of the person who is or was a public official, and the head of the agency shall immediately transfer them to the Corporation."

In full view of the above relevant provisions, the right to receive various kinds of benefits under the Public Officials Pension Act is not just a specific claim, but it does not arise as a specific claim. Accordingly, as a person who has the right to receive benefits applies for confirmation by the head of the agency to which the relevant public official belongs, the Public Officials Pension Corporation makes a decision on the payment of benefits under the Public Officials Pension Act. Accordingly, as a person who intends to receive various benefits under the Public Officials Pension Act requests the Public Officials Pension Corporation to recognize his right in accordance with the relevant Acts and subordinate statutes, where the Public Officials Pension Corporation refuses a request for recognition or conducts a disposition to recognize only a part of a claim, etc., the person shall be entitled to receive the relevant benefits by filing an appeal litigation against the relevant disposition, and it is not allowed to demand the payment of the relevant benefits by a party litigation against the State immediately without any specific right (see Supreme Court Decisions 96Nu6417, Dec. 6, 196; 2002Du3522, Sept. 5, 2003; 203Nu3538, 195).

However, in order for an administrative agency to file a claim for the payment of unpaid benefits by raising an objection to the reduction measure of benefits following the amendment of laws and regulations after the decision of payment of the administrative agency, it shall be disputed by a party lawsuit, not an appeal litigation (see Supreme Court Decision 2003Du15195, Dec. 24, 2004; Supreme Court Decision 2002Du3522, Sept. 5, 2003). However, such a case pertains to a case where a public official has already a specific right due to the decision of the administrative agency, but the contents of the right are changed without mediating the administrative agency's particular disposition according to the amendment of Acts and subordinate statutes, and it is different from the case where there is no specific right as to the part sought by the plaintiff

B) In light of such legal principles, the claim by the Health Team and the Plaintiff, etc. for the instant lawsuit is a retirement allowance under the Public Officials Pension Act. Therefore, in a case where the Plaintiff, etc. claimed for the recognition of the right to retirement allowances that the Defendant seeks to additionally seek against the Defendant, and the Defendant refuses or partially accepts the claim, etc., the Defendant shall be granted the specific right by filing an appeal, etc.,

However, as seen earlier, the Plaintiff et al. did not appeal against the Defendant’s decision on the payment of the retirement allowance at the time of his retirement, and did not appeal against the Defendant prior to his filing of the lawsuit in this case, and the Appointed 6 also did not appeal against the payment of the retirement allowance. Although the Plaintiff et al. except al. 6 did not appeal against the Plaintiff et al. (i.e., the amount calculated by multiplying the monthly amount of remuneration for each one year of service pursuant to Article 52-3 subparag. 5 of the Enforcement Decree of the Public Officials Pension Act by 60/100), the specific right regarding the retirement allowance occurred within the scope recognized by the Defendant (i.e., the amount calculated by multiplying the monthly amount of remuneration for each one year of service by 60/100) (this part was already paid to the Plaintiff et al. except the Appointed 6, and the lawsuit in this case also does not cover this part), the Plaintiff et al. sought additional payment of the retirement allowance (i.e., 33 years years without limitation for the calculation of the retirement allowance);

C) Therefore, the instant lawsuit is unlawful as it is a party suit instituted by a party who did not have specific rights.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

[Omission of List of Appointed]

Judges Kim Yong-ho (Presiding Justice)