5. Suspension of Veteran's Retirement Pension Benefits Case

[21-1(A) KCCR 312, 2007Hun-Ka5·6·7 (consolidated), March 26, 2009]

In this case, the Constitutional Court reviewed the provision of the former Veterans' Pension Act which allows suspension of veteran's retirement pension benefits upon employment by government-invested (or reinvested) institutions, delegating the requirements and substances of the payment suspension to the Presidential Decree. The Constitutional Court dismissed the request for adjudication on the constitutionality of statutes with regard to the part suspending more than the half of the retirement pension benefits, which amounts to the portion of an accrued benefit derived from voluntary veteran contributions (hereinafter, the "Individual Contribution Portion"). However, it held that the part, suspending less than the half of the retirement pension, which amounts to portion of an accrued benefit derived from state contributions (hereinafter, the "State Contribution Portion"), violates the prohibition of blanket delegation.

Background of the Case

Article 21 (5) (b) of the former Veteran's Pension Act (prior to revision by Act No. 5063, Dec. 29, 1995) allows to suspend retirement pension benefits in the case where a veteran, who is entitled to such benefits, is employed and paid remuneration from government-invested (or reinvested) institutions, delegating the requirements and substances of the payment suspension to the Presidential Decree (hereinafter, "Suspension Provision"). In the decision rendered on June 30, 1994 (92Hun-Ka9), the Constitutional Court has declared unconstitutionality regarding a part of the Suspension Provision, which suspends the payment of the Individual Contribution Portion that has the nature of the deferred payment of remuneration, on the ground it limits the right to receive a retirement pension benefits in violation of the principle of proportionality. Movants at the Requesting Court, who retired from military service of more than twenty years, have been paid remuneration from government-invested (or reinvested) institutions for their employments

and suspended the half of their retirement pension benefits during the corresponding period of employment, grounding on the above Suspension Provision that has survived even after the finding of unconstitutionality. Nonetheless, the movants at the Requesting Court filed a motion to request for the adjudication by the Constitutional Court on the constitutionality of the Suspension Provision in whole, and the requesting court also requested the entire Suspension Provision to the Constitutional Court for the adjudication on its constitutionality.

Provisions at Issue

Former Veterans' Pension Act (revised by Act No. 3587 on December 28, 1982, but before revised by Act No. 5063 on December 29, 1995)

Article 21 (retirement pension)

⑤ The payment of retirement pension can be suspended partly or wholly according to the Presidential Decree for the period of the person is paid remuneration from the institutions listed on the following items:

2. Institutions that the State or local government invest more than half of the capital fund and institutions, prescribed in the National Defense Ministry Ordinance, that Korea Bank("government-investedinstitutions"), State · local government, and government-invested institutionsinvest, respectively alone or joint, more than half of the capital fund.

Summary of the Decision

In a unanimous vote of eight Justices, the Constitutional Court dismissed the request for adjudication on the constitutionality of the suspension of the Individual Contribution Portion while it found the unconstitutionality on the suspension of the State Contribution Portion.

1. Suspension of Individual Contribution Portion

The decision of unconstitutionality against statutes binds the ordinary courts, other state agencies and local governments (Article 47 (1) of

the Constitutional Court Act). As such, the request for adjudication on the constitutionality of the statute which had been already found unconstitutional by the Constitutional Court is not justiciable (6-2 KCCR 153, 161, 91Hun-Ka1, Aug. 31, 1994). As the Constitutional Court had declared unconstitutional the suspension of the Individual Contribution Portion under the Suspension Provision before, the request for adjudication on the constitutionality of the same provision in the instant case is not justiciable.

2. Suspension of State Contribution Portion

In the case where a pensioner has a new income source after his or her retirement, a part of the pension benefits is to be suspended in connection with such income. In providing for the requirements and substances of suspension of pension benefits, the law shall take into consideration on both the existence and level of income. However, with regard to the State Contribution Portion, the Suspension Provision delegates every consideration on suspension of pension benefits and the income level to a Presidential Decree. As the Suspension Provision comprehensively delegates the requirements and substances of suspension to a Presidential Decree without prescribing an income level, thus it may suspend the amount of pension benefits exceeding his or her income. Also, the rights to receive a pension would be excessively restricted by the automatic suspension of the half of the retirement pension benefits regardless of the income level. Therefore, the Suspension Provision suspending less than the half of the retirement pension benefits (i.e., the State Contribution Portion) violates the principle against blanket delegation.