Where retired public officials, soldiers, or private school teachers and staff have been appointed as public officials and the retirement benefits claim regarding the tenure of office has expired by prescription before filing an application for aggregation of the previous tenure of office, and thus the previous tenure of office has not been paid, whether the liability for aggregate return under Article 24(2) of the former Public Officials Pension Act is established for the amount equivalent to the retirement benefits not paid (negative)

Articles 23(2) and 24(2) of the former Public Officials Pension Act (Amended by Act No. 10984, Aug. 4, 2011)

Plaintiff

Public Official Pension Corporation (Attorney Doo-sung, Counsel for defendant-appellant)

Seoul High Court Decision 2012Nu13698 decided September 20, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. According to the former Public Officials Pension Act (amended by Act No. 10984, Aug. 4, 2011; hereinafter the same applies), in cases where retired public officials, soldiers, or private school teachers and staff are appointed as public officials, the period of service or service pursuant to the relevant former Pension Act may be added to the period of service of public officials as they wish (Article 23(2)), and in cases where a person whose sum of service periods has been approved after filing an application for adding up the period of service, he/she shall return the amount of retirement benefits received at the time of his/her retirement [including cases where Article 64 (including cases where Article 42 of the Pension for Private School Teachers and Staff Act applies mutatis mutandis) and Article 33 of the Military Pension Act, he/she shall return it to the GEPS with interest prescribed by Presidential Decree added to the amount of benefits

In addition to the provision on the payment of benefits to be returned due to the aggregation of the above tenure of office (hereinafter “aggravating return”) and the purport of the adding up the tenure of office, in addition to the provision on the payment of benefits to be returned, if a person whose tenure of office was recognized as adding up the tenure of office has not been paid due to the extinction of a claim for retirement benefits by prescription, “the amount of retirement benefits received at the time of retirement” cannot be deemed to exist under the language and text of the above provision. The provision on the return of benefits to be returned by adding interest to the sum can be deemed as a premise for the actual receipt of retirement benefits. If a person is restricted to the amount of benefits pursuant to Article 64 of the Public Officials Pension Act, etc. among the above provision, the part on the return of benefits to be returned by adding interest to the amount of benefits to be received if there is no restriction, should be deemed as a special provision on the reduction of benefits due to punishment, etc., it is reasonable to view that a retired public official, military personnel, or private school teacher and staff member has been appointed and applied for the previous tenure of office.

2. The court below acknowledged the following facts: (a) the Plaintiff was appointed as a public educational official for five and eight years from July 1998 to February 2004 and served as a public educational official on September 2004 after retirement; (b) the Plaintiff did not claim retirement benefits for the above five and eight years as a public educational official on September 2004; and (c) was recognized by filing an application for adding up the period of service for the above five and eight months after the expiration of the statute of limitations; and (d) the Defendant notified the Plaintiff of the obligation to pay the said statutory retirement benefits amount to the Plaintiff based on Article 24(2) of the Public Officials Pension Act and interest thereon; and (e) the Plaintiff cannot be deemed to exist as a matter of course due to the approval for adding up the period of service, on the grounds of its stated reasoning, including the fact that the amount of the returned benefits is money of the nature consisting of the previous retirement benefits received and the amount equivalent to its interest.

In light of the above legal principles, such judgment below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on aggregate return amount.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)