[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Republic of Korea
[Lower Court Judgment] Gwangju High Court Decision 2003Nu1348 rendered on December 17, 2004
[Order]
The part of the lower court judgment against the Plaintiff is reversed, and this part of the case is remanded to the Gwangju High Court.
[Reasoning]
The grounds of appeal are examined.
1. Article 10 of the former Military Personnel Compensation Act (군인보수법) (amended by Act No. 4142 on December 21, 1989, before being amended by Act No. 8843 on January 17, 2008; hereinafter the "Act") provides that "for a person who serves beyond the mandatory retirement age for active duty prescribed in Article 8 of the Military Personnel Management Act (군인사법) during a national emergency such as war or incident, or for a person who serves beyond the highest pay step of the relevant rank, an amount equivalent to the pay step increment shall be additionally paid each time the period for advancement to the highest pay step has elapsed" (hereinafter "the statutory provision at issue"), and Article 23 of the Act merely provides that "matters necessary for the enforcement of the Act shall be prescribed by Presidential Decree," without containing any individual delegation clause concerning the statutory provision at issue.
However, Article 30-2, Paragraph 1 of the Public Officials Remuneration Regulations (공무원보수규정), as amended by Presidential Decree No. 12902 on January 15, 1990, provides that a long-service increment may be paid, from the month in which the regular pay-step advancement date falls, each time the pay-step advancement period is exceeded, to public officials who are receiving the highest pay step and whose service performance is satisfactory, while Paragraph 3 thereof provides that "for military personnel, an amount equivalent to the pay-step increment by rank shall be paid as a long-service increment, provided that the number of such additions shall not exceed five times." The same provision of the Public Officials Remuneration Regulations, as amended by Presidential Decree No. 14855 on December 29, 1995, likewise provides that "the number of such additions shall not exceed six times" (the above Paragraph 3 provisions are hereinafter referred to as "the Remuneration Regulations at issue").
2. Article 8, Paragraph 1 of the former Military Personnel Management Act (amended by Act No. 4085 on March 22, 1989), which was in effect at the time the statutory provision at issue was amended, provides for the mandatory retirement age for active duty service according to age, length of service, and rank, with a proviso stating that "an exception shall apply during a national emergency such as war or incident," but contains no restrictive provision regarding service beyond the highest pay step of the relevant rank within that retirement age. In light of this, it is reasonable to interpret that the statutory provision at issue, in conformity with the provisions of the former Military Personnel Management Act, distinguishes between "a person who serves beyond the mandatory retirement age for active duty prescribed in Article 8 of the Military Personnel Management Act during a national emergency such as war or incident" and "a person who serves beyond the highest pay step of the relevant rank," and provides that both categories are subject to its application; it cannot be interpreted as intending to exclude, from the payment of remuneration in the form of a long-service increment, a person who serves beyond the highest pay step of the relevant rank in peacetime, i.e., other than during a national emergency.
3. Meanwhile, according to Articles 40 and 75 of the Constitution (헌법), legislative power belongs to the National Assembly, and the President may issue Presidential Decrees only with respect to matters delegated by law within a specifically defined scope and matters necessary for the enforcement of laws; therefore, an enforcement decree of a statute may prescribe only matters delegated by the parent statute or detailed matters necessary for the practical enforcement of the statute within the scope prescribed by the statute, and, absent delegation by the statute, may not alter or supplement the content of individuals' rights and obligations as prescribed by the statute, nor prescribe new content not provided for in the statute (see Supreme Court Decision 89Nu2493 rendered on September 28, 1990; Supreme Court en banc Decision 93Da37342 rendered on January 24, 1995, etc.). Furthermore, delegation by a statute of matters to be prescribed by Presidential Decree must be made by specifically defining the scope thereof, and "specifically defining the scope" refers to the purpose, content, and scope of the delegation, as well as the goals and standards to be observed in the subordinate legislation pursuant to such delegation, being prescribed in advance; in determining whether such delegation exists, not only the form and content of the direct delegation provision but also the overall structure, purport, and purpose of the relevant statute must be considered together (see Supreme Court en banc Decision 98Du6265 rendered on October 19, 2000; Supreme Court en banc Decision 2006Du8648 rendered on May 17, 2007, etc.).
In light of the foregoing legal principles, the statutory provision at issue, which determines remuneration in the form of a long-service increment for military personnel who serve beyond the mandatory retirement age or the highest pay step, is a statute that forms the right to claim remuneration, which is a property right of the person entitled to receive remuneration. Unlike the statutory provision at issue, which, without limiting the number of additions and regardless of whether it is a national emergency or peacetime, provides that remuneration in the form of a long-service increment shall be paid by adding the pay-step increment each time the period for advancement to the highest pay step has elapsed, the Remuneration Regulations at issue, which limit the long-service increment for military personnel to a certain number of times, unfavorably restrict the content of the right to claim remuneration formed by the statutory provision at issue, and cannot be regarded as prescribing detailed matters necessary for the practical enforcement of the statutory provision at issue. Therefore, in order for a Presidential Decree, being subordinate legislation, to contain provisions such as the Remuneration Regulations at issue, the Act must have delegated the matter by specifically defining the scope thereof; however, since the Act, in Article 23, merely provides that "matters necessary for the enforcement of the Act shall be prescribed by Presidential Decree" and does not separately contain a delegation provision concerning the statutory provision at issue, it cannot be said that a specific and clear delegation regarding the limitation on the number of long-service increments was received from the Act.
Ultimately, the Remuneration Regulations at issue, which restrict the content of the right to claim remuneration concerning military personnel's long-service increment—a property right formed by the statutory provision at issue—were enacted without delegation from the parent statute and exceed the scope of regulation permitted by the parent statute, and are therefore invalid.
4. Accordingly, the lower court judgment, which, contrary to the legal principles recognized above, held that the statutory provision at issue applies only during a national emergency and therefore does not apply to the Plaintiff, and further, premising that the Remuneration Regulations at issue are valid, calculated the Plaintiff's pay step by limiting the number of long-service increments in accordance with the Remuneration Regulations at issue, contains an error of misapprehending the legal principles concerning the statutory provision at issue and delegation by statute, which affected the judgment. The ground of appeal pointing out that the lower court judgment applying the Remuneration Regulations at issue is improper is well-founded.
Therefore, the part of the lower court judgment against the Plaintiff is reversed, and this part of the case is remanded to the court below for further hearing and determination, and it is so decided as set forth in the Order.
The Justices are unanimous in this judgment except for the dissenting opinion of Justice Park Il-hwan.
5. The dissenting opinion of Justice Park Il-hwan is as follows.
The majority opinion holds that the statutory provision at issue applies to a person who serves beyond the highest pay step of the relevant rank not only during a national emergency but also in peacetime; however, I cannot agree with this for the following reasons.
Generally, with respect to a public official who has reached the highest pay step after a certain length of service, only the salary corresponding to the highest pay step is paid even if the length of service continues to increase, and there is no reason to view military personnel differently. However, where there is a provision concerning an increment, an amount corresponding to the increment may be paid; but since an increment entails paying an additional amount on top of the salary corresponding to the highest pay step, there must be a reasonable and justifiable reason for paying the additional amount in order to recognize the increment. Paying an additional amount on top of the salary corresponding to the highest pay step during a national emergency such as war or incident has a reasonable and justifiable reason, and the statutory provision at issue also recognizes an increment during such a national emergency, providing for payment of the pay-step increment each time the advancement period elapses. Textually as well, it is natural to interpret the statutory provision at issue as applying, during a national emergency such as war or incident, to "a person who serves beyond the mandatory retirement age for active duty prescribed in Article 8 of the Military Personnel Management Act" and "a person who serves beyond the highest pay step of the relevant rank," and the proviso of Article 8 of the Military Personnel Management Act poses no obstacle to interpreting the statutory provision at issue in this manner.
As such, the statutory provision at issue is a provision applicable during a national emergency, and matters such as whether to recognize an increment in peacetime, i.e., outside of a national emergency, and if an increment is to be recognized, how many times it may be added, are matters that may be determined at the discretion of the entity responsible for paying the salary, taking into account its financial capacity and other factors; therefore, it cannot be said that the Remuneration Regulations at issue, which were prescribed pursuant to such discretion, lack delegation from the parent statute or exceed the scope of regulation of the parent statute.
In the same vein, the lower court judgment, which held that the statutory provision at issue does not apply to this case, in which the Plaintiff seeks payment of a retirement pension in peacetime, and which calculated the Plaintiff's pay step by limiting the number of increment additions for the Plaintiff in accordance with the Remuneration Regulations at issue, is justifiable and may be upheld, and there is no error of misapprehension of legal principles or the like concerning whether or the scope to which the statutory provision at issue or the Remuneration Regulations at issue apply.
Chief Justice Lee Yong-hoon (Presiding Justice), Justice Kim Young-ran, Justice Yang Sung-tae, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hun, Justice Park Il-hwan, Justice Kim Neung-hwan, Justice Jeon Su-an (Reporting Justice), Justice Ahn Dae-hee, Justice Cha Han-sung, Justice Yang Chang-soo, Justice Shin Young-chul