Plaintiff

The Government Employees Pension Service

October 1, 2018

1. The instant lawsuit shall be dismissed.

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

The defendant's disposition of determining a disability grade against the plaintiff on June 29, 2017 shall be revoked.

1. Details of the disposition;

A. On January 6, 2003, the Plaintiff was a person working at the ○○ Police Agency’s △△△△△△△ Office, and was on the same apartment house with meals from the beginning of the food school, and was transferred to a hospital, and received treatment under the diagnosis of “cerebrovascular” (hereinafter “the instant injury”) after being discovered, and received treatment. The instant injury was confirmed on January 30, 2012 as to the instant injury.

B. (1) After the Plaintiff voluntarily retires on April 30, 2012, the Plaintiff filed a claim for disability pension with the Defendant on July 7, 2014, and the Defendant rendered a disposition on July 17, 2014 that the Plaintiff’s disability grade falls under class 7 subparag. 5 (hereinafter “previous disposition”).

2) The Plaintiff filed a request for an examination with the Public Official Pension Benefit Review Committee on August 27, 2014, but was dismissed on September 25, 2014.

3) The Plaintiff filed a lawsuit against the Defendant seeking revocation of the previous disposition, and the appellate court rendered a judgment that “previous disposition is revoked” (Seoul High Court Decision 2016Nu34822 Decided April 19, 2017).

C. (1) On June 29, 2017, after the judgment of the appellate court stated in the above B-3, the Defendant rendered a disposition on June 29, 2017 that the Plaintiff’s disability grade falls under class 5 subparag. 3 (hereinafter “instant disposition”).

2) On August 21, 2017, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission, but the Central Administrative Appeals Commission notified the Plaintiff on March 26, 2018 that “the request for administrative appeal was transferred to the Public Official Pension Benefit Review Committee,” and sent relevant data, such as the written request for administrative appeal submitted by the Plaintiff, to the Ministry of Personnel Management established by the Public Official Pension Benefit Review Committee.

3) On March 28, 2018, the Minister of Personnel Management sent to the Defendant related data, including the Plaintiff’s written request for administrative appeal, which was received from the Central Administrative Appeals Commission, and the Defendant received it on March 30, 2018.

4) On April 4, 2018, the Plaintiff submitted a written request for examination to the Defendant (the Defendant submitted a written request for examination as reference material on October 16, 2018).

5) On April 13, 2018, the Defendant sent relevant materials, including the Plaintiff’s written request for examination, to the Public Official Pension Benefit Review Committee.

6) On June 21, 2018, the Public Official Pension Benefit Review Committee rendered a decision to dismiss the Plaintiff’s request for review on the ground that “the request for review was filed on April 4, 2018, past 180 days from the date of the instant disposition.”

【Fact-finding without a dispute over the basis of recognition, Gap evidence 1, 2, Eul evidence 1 to 6, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

With respect to the Plaintiff’s claim that his disability status falls under class 2 of the disability grade by the instant lawsuit, the Defendant asserted that the instant lawsuit was unlawful since it was filed after the period for filing the lawsuit expired.

B. Determination

1) Legal principles

According to Article 20(1) of the Administrative Litigation Act, a revocation suit shall be instituted within 90 days from the date when the disposition is known, and in the case of a request for administrative appeal, the above period at the time when the request for administrative appeal is filed shall be calculated from the date when the original copy of the written ruling is served. According to Article 20(2) of the Administrative Litigation Act, a revocation suit shall not be filed after the lapse of one year from the date

Meanwhile, in order to calculate the period of filing a lawsuit for revocation as of the date on which a written ruling is served, not at the disposal price, the request for an administrative appeal must be lawful. In cases of illegality, such as a request for an administrative appeal itself is filed after the period of filing an administrative appeal, the period of filing a lawsuit may not be calculated based on an adjudication (see Supreme Court Decision 2011Du18786, Nov. 24, 201

However, according to Article 80 of the former Public Officials Pension Act (wholly amended by Act No. 15523, Mar. 20, 2018; hereinafter the same), a person who has an objection to a decision, etc. on benefits may file a request for an examination with the Public Officials Pension Benefit Review Committee established in the Ministry of Personnel Management (excluding cases where it is proved that he/she was unable to file a request for examination due to justifiable grounds within the above period) within 180 days from the date the decision, etc. on benefits was made, and within 90 days from the date he/she became aware of such fact, and may not file an administrative appeal

2) The time when the Plaintiff became aware of the instant disposition and whether the appeal procedure was notified

In light of the overall purport of the arguments in Eul evidence Nos. 2, 4, 5, 6, and 7, "the date when the plaintiff becomes aware of the disposition" of the written request for administrative appeal (Evidence Nos. 2 and 5) submitted to the Central Administrative Appeals Commission, "the date when he/she becomes aware of the disposition," and "the date when he/she becomes aware of the disposition," and "the decision of disability grade (Evidence No. 7) was submitted as evidentiary documents. The plaintiff submitted the written decision of disability grade (Evidence No. 7) as evidence. The above written decision of disability grade was that "if he/she is dissatisfied with the Corporation's decision (excluding injury and disease, period of approval, gross negligence, etc.), within 90 days from the date he/she became aware of the decision pursuant to Article 80 of the Public Officials Pension Act (the date he/she was notified) and it was reasonable to view that the plaintiff was dissatisfied with the request for review or the procedure of review was legitimate within 180 days from the date he/she became aware of the decision (the date notified).

3) Whether the instant lawsuit was filed within the filing period

As seen earlier, the Plaintiff was aware of the instant disposition on July 10, 2017. According to the aforementioned evidence, the Plaintiff’s petition for examination was filed on April 4, 2018 after 90 days from the date the Plaintiff became aware of the instant disposition, and 180 days from the date the instant disposition was issued ( June 29, 2017) (the same applies to the case where relevant materials, such as the written petition for administrative appeal, were sent to the Ministry of Personnel Management, which was established by the Public Official Pension Benefit Review Committee, around March 3, 2018). Since the fact that the instant lawsuit was filed on July 3, 2018 after one year from the date the instant disposition was issued, it is apparent that the instant lawsuit was filed after the lapse of the filing period, and thus, is unlawful. The Defendant’s main defense of safety is with merit.

[2] Article 4 (2) of the Administrative Appeals Act provides that, in cases where special cases are prescribed by other Acts with respect to administrative appeals, matters not prescribed by this Act shall be subject to the provisions of this Act. Meanwhile, Article 23 (2) of the same Act provides that, in cases where an appellant submits a written appeal to another administrative agency without delay due to the administrative agency's failure to notify or wrong notification of a written appeal, the relevant administrative agency shall send the written appeal to the competent administrative agency without delay. Article 27 (4) of the same Act provides that, in calculating the period for a written appeal under Article 27, the administrative agency shall be deemed to have filed a written appeal at the time of the submission of the written appeal to the administrative agency under Article 23 (2) of the former Public Officials Pension Act, unless the provisions of Article 23 of the Administrative Appeals Act concerning the procedure for a written appeal to pay benefits under the former Public Officials Pension Act excludes the provisions of Article 23 of the Administrative Appeals Act or violates this provision, the procedure for a written appeal shall also be deemed to have been duly known to the Plaintiff while rendering a written appeal to the Central Administrative Appeals Commission.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and thus it is decided as per Disposition.

Judges Lee Dong-won