Whether Article 64(3) of the Public Officials Pension Act, which is a provision restricting retirement benefits by punishment, applies to cases where a public official was punished for committing any of the crimes enumerated above after his/her retirement (negative)

In light of the legislative purpose of Article 64 of the Public Officials Pension Act, Article 64 of the same Act, which provides for the restriction on benefits under punishment, etc., the legislative purpose of Article 64 of the same Act, the history of such provision, the purport and content of paragraphs (1) and (3) of the same Article, mutual relationship, equity and justice, equality rights, and the constitutional spirit of guaranteeing fundamental rights of the people, etc., when a public official is sentenced to imprisonment without prison labor or heavier punishment for failing to fulfill his/her duty of good faith during his/her term of office, Article 64 of the same Act intends to restrict retirement benefits with the character of compensation for his/her service in good faith or social security. Paragraph (1) of the same Article provides for partial reduction without asking the name of the crime committed, and Paragraph (3) of the same Article provides for the restriction on payment in full due to committing the crimes enumerated above. Although Paragraph (3) of the same Article provides for the restriction on payment in full due to retirement benefits under the premise that a public official is not a public official who was a public official or a former public official, even if having received the same provision.

Article 64 (1) and (3) of the Public Officials Pension Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff (Law Firm Han-hwan, Attorneys Song Du-hwan et al., Counsel for the plaintiff-appellant)

Public Official Pension Corporation

Seoul High Court Decision 99Nu13972 delivered on May 4, 2000

The lower judgment is reversed. On January 18, 1999, the Defendant’s disposition of restitution of the retirement benefit site and retirement benefit against the Plaintiff is revoked. The total costs of the lawsuit are assessed against the Defendant.

1. According to the reasoning of the first instance judgment as cited by the lower court, the lower court determined that: (a) on August 19, 198, when the Plaintiff was serving as a public official and retired on May 11, 1984 and received retirement pension from June 1984, the Defendant was sentenced to imprisonment with prison labor for ten years and suspension of qualifications for a violation of the National Security Act, such as the crime of agents committed between Seoul High Court and July 1985 from around October 1997; and (b) on December 22, 1998, the Supreme Court sentenced the dismissal judgment to the Supreme Court on January 18, 199; (c) on that ground, the lower court was justifiable in that the Defendant’s order to recover the amount of KRW 31(1)2 of the Public Officials Pension Act, which was already received by the public official, and that the Defendant’s order to pay the amount of KRW 47,398,860 and KRW 1485 of the Act, which was retroactively deducted from the interest rate of KRW 1450.5.

2. Article 64 (1) of the Act provides that "in case where a person who is or was a public official is sentenced to imprisonment without prison labor or heavier punishment for reasons of his tenure of office, or is removed from office by impeachment or disciplinary action, 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 retirement benefits shall not be reduced to an amount not exceeding the amount calculated by adding the interest specified in the Civil Act to the total amount of contributions already paid," and Paragraph (3) of the same Article provides that "in case where he is sentenced to imprisonment without prison labor or heavier punishment for reasons of insurrection, foreign aggression, crime of insurrection under the Criminal Act, crime of interest, crime of violation of the Military Criminal Act, crime of violation of the National Security Act (excluding the crime of non-disclosure as provided in Article 10), the amount calculated by adding

3. In the Section 4 of Chapter 4 of the Act, when the legislative purpose of Article 64 of the Act provides for the restriction on benefits under punishment, etc., the legislative purpose of the provision, the history of the provision, the purport and content of Article 64 (1) and (3) of the Act, mutual relationship between the parties, equity and justice, equality rights and other constitutional spirit of guaranteeing fundamental rights of the people, etc., Article 64 of the Act provides that when a public official has committed a crime while in office and has been sentenced to imprisonment without prison labor or heavier punishment, he/she shall restrict the compensation for faithful service during his/her term of office or retirement benefits having the character of social security. Paragraph 3 of the same Article provides for a case of partial reduction without asking the name of the crime, and Paragraph 3 of the same Article provides for a case of full restriction on payment following the commission of crimes enumerated above. Although Paragraph 3 of the same Article provides for the case of partial restriction on benefits due to the omission of expression "public official" or "the former public official" due to a reason not falling under paragraph 1 of the foregoing provision, it should be based.

4. Therefore, Article 64(3) of the Act provides that a public official shall not pay retirement benefits only when he/she commits a crime listed in his/her term of office and becomes final and conclusive after having been sentenced to imprisonment without labor or heavier punishment. Thus, where such crime is committed after his/her retirement, it shall not be applicable even if he/she is sentenced to imprisonment without labor or greater punishment,

Nevertheless, the lower court’s determination that the Defendant’s disposition of this case was lawful on the premise that a public official committed a crime listed in Article 64(3) of the Act after retirement constitutes a ground for payment of retirement benefits, etc., on the premise that the case constitutes a ground for payment of retirement benefits, etc., was erroneous by misapprehending the legal doctrine on Articles 64(3) and 31(1)2 of the Act, which affected the conclusion of the judgment

5. Therefore, the judgment of the court below is reversed in its entirety. Since this court is sufficient to judge this court, the defendant revoked both the disposition of the retirement benefit site and retirement benefit redemption against the plaintiff on January 18, 1999, and the total costs of the lawsuit are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)