공무원연금수급권의 법적 성질에 관한 고찰 ― 헌법재판소 결정을 중심으로 ―

Abstract

The government official’s pension system of Korea has Constitutional grounds in Article 7(The Vocational Official System) and 34(The Social Security System) of Korea Constitution(1987). Article 7 justifies the public official pension system different from national pension system which is a general pension for Korean. Yet, Korea public official pension system has adopted social insurance way which has its origin in Deutsch that actually has not used this way, but “Alimentation” in its public official pension system, which means the guarantee of living standards after retirement without paying any contributions in holding office. In Korea, public official should pay contribution according to pay level in his/her work period and government who is the substantial employer over public servants also has to pay it’s own contribution. Korea Constitutional Court(KCC) reluctantly admitted that the right to retire pension after retirement is property right. KCC thinks the contribution by public servant can be a pension property but the contribution by government is not. I think this decision is on a wrong premise. Government as a employer over public servant has to pay it’s own contribution because he has consumed the time period during which a public servant can work and over that time he can not work any more: retirement that means the disappearance of workable ability. So the contribution made by government is not a any sacrifice for public servant but a duty of government. If we can take this thought, all part of pension which has its root on contributions by public servant and government can be a property as a whole for the qualified recipient. KCC thinks the contribution paid by government can be reduced in the future according to government financial condition because this part of contribution can not be attributed to the public servant. I don’t think this kind of thought is a proper understanding. Above all I fully support the thought that retire pension can be changed somewhat in the unexpected future government’s financial situation. This kind of change of pension appears in the form of property right. Modern property is not any more a sacred labour or personality itself but a barefaced sovereignty itself. Under the ‘natural state’ we did not ever know of pension right. Under the ‘social state’, we create a pension right by own sovereign power(Article 23. section 1; ‘principle of no pension right without law’). After pension law enactment, legislator can change pension law freely than he does the other law on liberty because pension is under direct future financial condition of a state and the number of future labour force population etc. Pension has a changeable nature in the right. So social restriction over property right which Korea Constitution stipulates in Article 23 section 2 can find a role about pension right. By using this framework of pension we can adapt the pension right to future social change.