Plaintiff (Law Firm Vindication, Attorneys Su Dong-dong et al., Counsel for the plaintiff-appellant)

The Korea Teachers Pension Foundation (Law Firm Jin, Attorneys Lee Jae-min, Counsel for defendant-appellant)

June 13, 2007

Seoul Southern District Court Decision 2006Gahap2835 Decided October 19, 2006

1. The plaintiff's appeal and the changed claim for exchange in the trial are dismissed, respectively.

2. The costs of lawsuit after the appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 41,344,200 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

(1) In the first instance trial, the Plaintiff sought confirmation of the absence of any part of the Plaintiff’s obligation among the Plaintiff’s obligation to return the retirement benefit to the Defendant, and additional payment of the retirement pension for December 2005 and January 2006. In the first instance trial, the Plaintiff changed the claim for confirmation of the existence of the above obligation to claim the return of part of the retirement benefit returned to the Defendant, and sought additional payment of the above retirement pension.

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the entire pleadings in Gap evidence 1, 2, 3-1, 2, 4, 5-1, 5-2.

A. On February 10, 1957, the Plaintiff was appointed as a teacher and staff of a private school and retired on August 23, 1988. On February 13, 1989, the Plaintiff was reappointed as the principal of ○○ High School, a private school, and served for adding up his tenure of office pursuant to Article 32 of the Pension for Private School Teachers and Staff Act (hereinafter “Private School Pension Act”), and retired on March 2, 2004. After receiving 76,346,070 won as retirement allowance from the Defendant on December 30, 2004, and received 3,067,380 won as retirement pension.

B. However, on February 16, 2005, the Plaintiff was sentenced to imprisonment with prison labor for one year and six months in the Daegu District Court Branch of ○○ High School and for three years in suspended execution on June 28, 2005, and was sentenced to imprisonment with prison labor for one year and two years in suspended execution at the Daegu District Court which was the appellate court on June 28, 2005, and the said judgment became final and conclusive on July 6, 2005.

C. Accordingly, on December 2, 2005, the Defendant paid to the Plaintiff the amount equivalent to 1/2 of the monthly retirement pension from August 2, 2005, which is the month following the month in which the judgment of the above criminal case became final and conclusive under Articles 39 and 42 of the Private School Pension Act, Articles 66 and 25 of the Enforcement Decree of the same Act, and Article 64 of the Public Officials Pension Act, to the limit on the amount corresponding to 1/2 of the monthly retirement pension from August 2, 2005, and notified the Plaintiff that the amount corresponding to 1/2 of the retirement allowance and retirement pension already paid and the interest redemption interest should be returned, and from December 2, 2006, the Defendant paid 1/2

D. The Plaintiff returned KRW 5,186,630 in total to the Defendant on October 30, 2006 and KRW 55,186,630 in total on April 16, 2007, and KRW 7,552,50 in accordance with the above notification.

2. Related statutes;

(a) Private School Pension Act;

Article 32 (Aggregation of Periods of Service)

(1) Where the retired teachers and staff, public officials or soldiers (excluding those who were not subject to this Act, the Public Officials Pension Act or the Military Pension Act) are appointed as teachers and staff and apply for the aggregation of the period of service within two years from the date thereof, the period of service or service under the previous relevant Pension Act may be added to the period of service under Article 31, as prescribed by Presidential Decree.

(2) Where a person who desires to be added up the tenure of office under the provisions of paragraph (1) has been recognized to be added up by the Foundation, he shall return to the Foundation the amount of retirement benefits or the amount of retirement benefits received at the time of his retirement (where he is subject to the restrictions on the amount of benefits under the provisions of Article 64 (including the cases applied mutatis mutandis in Article 42) of the Public Officials Pension Act or Article 33 of the Military Pension Act, referring to the amount of benefits to be received if there is no such restrictions) plus the interest as prescribed by the Presidential Decree: Provided, That where the teachers and staff recognized to be added up the tenure of office are beneficiaries of the retirement pension,

(4) In case where a person who is recognized to sum up the tenure of office applies for the whole or part exclusion from sum-up of the recognized tenure of office, or fails to pay the returned money for not less than six months, the Foundation may exclude sum-up of the period which deducts the tenure of office equivalent to the returned money paid from the recognized tenure of office.

Article 42 (Application Mutatis Mutandis of the Public Officials Pension Act)

(1) The relevant provisions of Articles 34 through 49, and 51 through 64 of the Public Officials Pension Act shall apply mutatis mutandis to matters concerning the types of benefits for short-term benefits and long-term benefits under Article 33, grounds for benefits, the amount of benefits, restrictions on benefits, etc.

(b) Public Officials Pension Act;

Article 64 (Restriction on Benefits by Penalties, etc.)

(1) If a person who is or was a public official falls under any of the following subparagraphs, part of the retirement benefits and retirement allowances shall be reduced and paid under the conditions as prescribed by the Presidential Decree. In this case, the amount of the retirement benefits shall not be reduced less than the amount calculated by adding the interest specified in the Civil Act to

1. Where he/she is sentenced to imprisonment without prison labor or heavier punishment;

Article 70 (Transfer of Amount of Pension)

(1) Where a recipient of a veteran's retirement pension, retirement pension or early retirement pension under the Military Pension Act or the Pension for Private School Teachers and Staff Act retires or dies from a public official after being appointed as a public official and having his service period added up under Article 24 (1), the Minister of National Defense or the Korea Teachers and Staff Pension Foundation shall transfer to the GEPS the amount equivalent to the veteran's retirement pension, retirement pension, early retirement pension or survivor's pension (including the amount payable pursuant to Article 30 and the bereaved family's retirement pension, early retirement pension or survivor's pension (including the amount payable pursuant to Article 30 and the amount equivalent to the bereaved family's pension, early retirement pension and the amount equivalent to the bereaved family's pension)

3. Judgment on the plaintiff's claim

A. The plaintiff asserts as the cause of the claim of this case as follows.

(1) The retirement benefits received by the Plaintiff from the Defendant after his retirement are mixed with the part regarding the period of service before his reappointment and the part regarding the period of service after his reappointment. The Defendant reduced the retirement benefits for the period of service before his reappointment on the ground that the Plaintiff was sentenced to imprisonment without prison labor or heavier punishment for reasons

(2) However, Article 32 of the Private School Pension Act provides, however, that the period of service may be added to the retirement benefits before reappointment if the person to be reappointed wishes, and there is no explicit provision that the retirement benefits may be limited to the retirement benefits for the period of service before reappointment if the person to be reappointed is restricted or recovered due to the reasons during the period of service after reappointment. ② The purpose of the adding up the period of service is to expand the scope of benefits benefits to the person to be paid benefits. In this regard, Article 32(4) of the Private School Pension Act provides that the person to be recognized by adding up the period of service may apply for exclusion of all or part of the recognized period of service. ③ If the retirement benefits for the period of service after re-election reduces the period of service for the period of service before reappointment, the person to be paid by adding up the period of service would be remarkably unfavorable compared to the person to be paid who did not apply for adding up the period of service, and ④ The exclusion of the period of service after adding up the period of service without reasonable grounds for the retirement benefits from the aforementioned.

(3) Therefore, the Defendant may reduce the retirement benefits only for the period of service after reappointment to the Plaintiff. In such a case, the Plaintiff is obligated to return only 15,776,250 won out of the retirement allowances and retirement pension already paid to the Plaintiff (the specific calculation details are the same as stated in attached Form 1) and in excess of the above amount, the Defendant returned KRW 55,186,630 to the Defendant. As such, the Defendant is obligated to return the difference as unjust enrichment to the Plaintiff (=5,186,630 won -15,76,250 won).

(4) In addition, if retirement benefits are reduced only for the period of service after reappointment, the Defendant is obligated to pay the Plaintiff the unpaid amount of KRW 1,933,820 out of the retirement pension for December 2005 and January 2006 (the specific calculation details are as shown in the attached Form 2).

B. Determination

(1) Article 32 of the Private School Pension Act provides that when a retired school employee applies for the aggregation of his/her service period after his/her reappointment, the period of service under the Private School Pension Act may be added to the period of service. Article 64(1)1 of the Public Officials Pension Act applied mutatis mutandis under Article 42(1) of the same Act provides that a retirement pension and retirement allowance shall be reduced by 1/2. However, the Private School Pension Act or the Public Officials Pension Act does not expressly provide that the reduced retirement benefits include the part concerning the period of service before his/her reappointment when he/she is reduced by having been sentenced to imprisonment without labor or heavier punishment for reasons of his/her reappointment, as in the instant case.

However, in applying the Private School Pension Act, the Plaintiff shall be deemed to have served continuously during the period of service before and after the reappointment by applying for adding up the period of service after the Plaintiff’s reappointment to the private school teacher and adding up the period of service before and after the reappointment. Accordingly, the retirement benefits to be paid by the Plaintiff after his reappointment are recognized as retirement benefits for the entire period of service before and after his reappointment. The part concerning the retirement benefits before and after his reappointment and the retirement benefits for the period of service after his reappointment cannot be deemed to exist in the above retirement benefits. Therefore, even if a ground for restriction on benefits occurred due to a reason that occurred during his reappointment after his reappointment to the Plaintiff, it shall be deemed as a ground for the "period of service" which covers the entire period of service after his reappointment, so the Defendant may take measures for

(2) In addition, the reason for restriction on the benefits of this case lies in free choice of the beneficiary. The ground for restriction on the benefits of this case lies in the Plaintiff’s cause attributable to the Plaintiff, and the beneficiary of benefits is assessed by adding up the period of service before and after the reappointment to the entire period of service when applying for adding up the period of service. It is reasonable to reduce the total period of service including the former period of service even when the ground for restriction on benefits arises after adding up the period of service after applying for the exclusion of the benefits of this case, and it is difficult to view the Plaintiff’s application for the exclusion of the benefits of this case’s retirement benefits of this case to the Defendant after adding up the period of service without adding up the period of service to the entire period of service. In light of the above, it is difficult to view that the Plaintiff’s application for the exclusion of the benefits of this case’s retirement benefits of this case to the Defendant after adding up the period of service of the Plaintiff’s retirement benefits to the entire period of service without adding up the period of service (in this case, benefits of this case should not be added up to the retirement benefits of the Plaintiff’s retirement benefits of this case.)

The court held that the above legal principles shall apply to this case on the ground that the appeal was dismissed on April 15, 2005, and the above legal principles should be applied to private school teachers and staff in this case. However, in light of the fact that Article 70 of the Public Officials Pension Act provides for the transfer of the retirement pension and the part of the retirement pension is still subject to the Military Pension Act, despite the aggregate method between the Military Pension and the Public Officials Pension, in case where a person who retired after being reappointed as a public official after being discharged from the military, was sentenced to imprisonment without prison labor or a heavier punishment for the reason that he was in the above military service, the amount of the retirement pension for the above military service cannot be recovered according to the legal principles of the Public Officials Pension Act, and that it is not reasonable to determine that the portion of the retirement pension for private school teachers and staff under the Public Officials Pension Act is still subject to recovery of the retirement pension after being discharged from the military service and the retirement pension under the Military Pension Act (Article 254 of the Public Officials Pension Act).

4. Conclusion

Therefore, all of the plaintiff's claims shall be dismissed as it is without merit, and the judgment of the court of first instance on the additional claims for retirement pension shall be justified as it is in conclusion, so the plaintiff's claims for exchange change in the plaintiff's appeal and appeal court shall be dismissed, respectively, and it is so decided as per Disposition.

[Attachment Form 1] The calculation of the plaintiff's claim amount

Judges Kang Jong-ju (Presiding Judge) (Presiding Justice)