[1] On December 19, 2017, the Constitutional Court’s ruling of inconsistency with the Constitution as to Article 64(1) of the former National Pension Act on December 19, 2017 becomes effective on the part of the Constitutional Court ordering the continuation of the application

[2] Whether the Constitutional Court's ruling of inconsistency with the Constitution as to Article 64 (1) of the former National Pension Act becomes a key issue on December 19, 2017, and whether the above ruling of inconsistency with the Constitution as to the pertinent case and the case pending before the court becomes a unconstitutional issue, and whether the above ruling of inconsistency with the Constitution as to the cases are subject to the amended National Pension Act to which the unconstitutionality has been removed (affirmative)

[1] Article 64(1) of the former National Pension Act (Amended by Act No. 15267, Dec. 19, 2017) / [2] Article 64(1) of the former National Pension Act (Amended by Act No. 15267, Dec. 19, 2017); Article 2 of the National Pension Act; Articles 45, 47, and 75 of the Constitutional Court Act

[1] [2] Constitutional Court en banc Decision 2015Hun-Ba182 Decided December 29, 2016 (Hun-Ba243,83) / [2] Supreme Court Decision 9Da3358 Decided April 2, 2002 (Gong2002Sang, 1059) Supreme Court Decision 2003Da52647 Decided March 9, 2006 (Gong2006Sang, 569) Supreme Court Decision 2008Du1885 Decided September 29, 201 (Gong201Ha, 2234)

Plaintiff (Attorney Shin-hee et al., Counsel for plaintiff-appellant)

National Pension Service (Law Firm have been established, Attorneys Lee Jong-soo et al., Counsel for the defendant-appellant)

Daejeon High Court (Cheongju) Decision 2015Nu10477 decided July 20, 2016

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

Judgment ex officio is made.

1. The ruling of inconsistency with the Constitution and the scope of provisional application

Article 64(1) of the former National Pension Act (amended by Act No. 15267, Dec. 19, 2017; hereinafter “former Act”) provides that the right to receive a divided pension shall be recognized based on the period of legal confusion. The former Act stipulates that the period during which there was legal confusion, but there was no substantial marital relationship due to separate or separation from one another, shall be included in the period of marriage and the amount of divided pension shall be calculated uniformly.

In the Supreme Court Decision 2015Hun-Ba182 Decided December 29, 2016, the Constitutional Court determined that the former provisions of the former Act was in violation of property rights of old age pension beneficiaries beyond the discretion of legislative formation power by excluding property rights of the divided pension system that has property rights and social security character. Furthermore, in cases where the former provisions of the Act are declared as simply a unconstitutionality and becomes null and void immediately, the grounds for the right to receive the divided pension of a divorced spouse who has contributed to the formation of entitlement to old age pension also arises.

According to the unconstitutionality of the provisions of the former Act, the Constitutional Court's ruling of inconsistency with the Constitution and the grounds for provisional application of the provisions of the former Act, it is necessary to continue to apply the provisions of the former Act until a certain time even though the Constitutional Court confirmed the unconstitutionality of the provisions of the former Act. The grounds for respecting the legislative formation right regarding the specific types, methods, procedures, etc. of the marriage period excluded from the calculation of the divided pension benefits are related to the need to make a decision of inconsistency with the Constitution that contains the purport of demanding legislative improvement instead of making a decision of unconstitutionality as to the provision of the former Act, and cannot be viewed as the grounds for continuing to maintain the status of infringement of fundamental rights until the legislative amendment is implemented.

Therefore, the part of the decision of inconsistency with the Constitution of the Republic of Korea ordering the continuance of the provision of the former Act is a provision that can continue to maintain the entitlement to a divided pension of a divorced spouse who has contributed to the formation of entitlement to an old age pension. In other words, the part that uniformly included the term “the period during which there was legal confusion but no substantial marital relationship exists due to separation or withdrawal” in the interpretation of the former Act should be deemed to be in the state of suspension of application.

2. Amendment to the National Pension Act and retroactive effect of the decision of inconsistency with the Constitution;

According to the instant decision of inconsistency with the Constitution, the National Pension Act amended by Act No. 15267, Dec. 19, 2017; Article 64(1) of the National Pension Act excluded the period during which a real marital relationship had not existed due to reasons such as separation, withdrawal, etc. from the period of marriage for the calculation of divided pension; and Article 64(4) of the Act newly established “The matters necessary for the criteria, method, etc. for the recognition of the period of marriage under paragraph (1) shall be prescribed by Presidential Decree.” Meanwhile, Article 2 of the Addenda to the National Pension Act (amended on December 19, 2017) provides that the said provisions shall apply to the first time after this Act enters into force, thereby recognizing the retroactive application of the amended legislation.

As long as the Constitutional Court has decided to render a ruling of inconsistency with the Constitution as to any provision of the law and imposes the legislative discretion on the legislative body to revise or abolish the provision of the law in a constitutional manner, the legislative discretion and the scope of retroactive application depends on the legislative body’s discretion in principle. However, considering the purport of the ruling of inconsistency with the Constitution as to the provision of the former Act or the guarantee of effectiveness of specific norm control in the adjudication of inconsistency with the Constitution as to the provision of the same case, at least the relevant case becomes subject to a ruling of inconsistency with the Constitution as to the relevant provision of the former Act and the case pending in the court as at the time of the ruling of inconsistency with the Constitution, the retroactive effect of the ruling of inconsistency with the Constitution as to the relevant provision of the former Act shall be deemed to affect the retroactive effect of the previous case. Therefore, even if these cases are not included in the scope of the transitional measure as referred to in Article 2 of the Addenda of the National Pension Act (see, e.g., Supreme Court Decisions 200Du3829, Apr. 29, 2002>

3. Determination on the instant case

According to the records, the plaintiff filed an application with the first instance court for adjudication on the unconstitutionality of the provisions of the former Act, but received the decision of dismissal from the first instance court, and filed a constitutional complaint seeking confirmation of the unconstitutionality of the provisions of the former Act based on Article 68(2) of the Constitutional Court Act, and received the decision of inconsistency with the Constitution of this case. Thus, this case constitutes a case of inconsistency with the Constitution of this case as to the pertinent decision of inconsistency with the Constitution of this case, and thus, this case constitutes a case of retroactive effect of the decision. Accordingly, the provisions

Nevertheless, on the premise that the provisions of the former Act are applied, the lower court determined that the Defendant’s disposition to revise the pension amount pursuant to the instant divided pension payment was lawful on the sole ground that the Plaintiff’s report of marriage with the Nonparty on August 15, 1975, and maintained the legal marital relationship until the judicial divorce on April 21, 2004, on the ground that the Plaintiff maintained the legal marital relationship. As such, the lower judgment was no longer maintained.

4. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)