遡及立法에 依한 公務員年金 給與制限處分의 限界

Abstract

The Supreme Court rendered a judgment in 2014 that the administrative authority can retrospectively restrict the public pension right for the government official despite the Constitutional Court’s decision of unconstitutionality regarding the supplementary provision of the Public Officials Pension Act that allows the retrospective application of the revised clause for restricting the public pension right. In the case at issue, the Constitutional Court has long before found the original clause for restricting the public pension right before revision unconstitutional, and as the reasons for restricting the public pension right in the case occurred before the revision of the Public Officials Pension Act according to the aforementioned finding of the Constitutional Court, it was considered by the appellate court that the restrictive measure by the administrative authority was groundless due to the legal vacuum. In this regard, the Supreme Court’s judgment is worth reviewing if it is just and consistent with the Constitutional Court’s logic and the existing theory on the principle of non-retroactivity. Also the Supreme Court took the nature as continuous payment of the pension right and period of performance into account in the judgment. Accordingly, this article aims to set the foundation for in-depth examination as to if the legal character of individual right at issue determines how the principle of non-retroactivity applies and where to draw the line between the principle of non-retroactivity and its exceptions.