Open Decision Ledger · Constitutional, administrative & state liability
Cancelling honourable retirement allowance eligibility before retirement takes effect
Supreme Court, July 25, 2019, 2016Du54862 (judgment)
Case name: 명예퇴직수당지급대상자취소처분취소등(명예퇴직수당 지급대상자로 결정되고, 의원면직 후 수사기관에서 수사가 진행 중이라는 잠정적 이유로 명예퇴직수당 지급대상자 결정 취소처분이 가능한지 여부가 문제된 사건)
Official text on the National Law Information Center
Question
Where an audit agency or an investigative agency is conducting a misconduct investigation or a criminal investigation, may the head of a central administrative agency cancel the designation of a person as an eligible recipient of the honourable retirement allowance after that person's honourable retirement has already taken effect, that is, after the person has lost civil servant status?
Holding
No, in principle. Reading the wording, scheme and purpose of Article 74-2(1), (3) and (5) of the National Public Service Act and Article 3(3) and Article 9 of the Rules on the Payment of Honourable Retirement Allowances for National Public Officials, the Supreme Court held that such a cancellation presupposes a designated recipient who has not yet lost civil servant status, unless there are special circumstances. Once the honourable retirement or voluntary retirement has taken effect, Article 9 and Article 3(3)(iii) of the Rules have no scope for application, and the state may only make a clawback decision where a ground under Article 74-2(3)(i), (i-2) or (i-3) of the Act is established.
Summary of the holding, verbatim
감사기관과 수사기관에서 비위 조사나 수사 중임을 사유로 한 명예퇴직수당 지급대상자 취소 결정은 특별한 사정이 없는 한 아직 면직의 효력이 발생하지 않아서 공무원의 신분을 잃지 않은 상태의 명예퇴직수당 지급대상자가 그 처분 대상임을 전제한다고 봄이 타당하다.
Unofficial English translation
Unless there are special circumstances, it is reasonable to regard a decision to cancel a person's designation as a recipient of the retirement allowance on the ground that an audit agency and an investigative agency are conducting an investigation or a probe into misconduct as being premised on the fact that a person designated as a recipient of the retirement allowance, who has not lost the status of a public official because the effect of dismissal has not yet taken place, is the target of that disposition.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daegu High Court.
Form of the test
Elements stated Stated in the decision
국가공무원법 제74조의2 제1항, 제3항, 제5항, 국가공무원 명예퇴직수당 등 지급 규정 제3조 제3항, 제9조의 문언, 체계와 취지 등을 종합하면, 감사기관과 수사기관에서 비위 조사나 수사 중임을 사유로 한 명예퇴직수당 지급대상자 취소 결정은
Unofficial English translation
Taking comprehensively into account the text, system, and purpose of Article 74-2 (1), (3), and (5) of the National Public Officials Act and Article 3 (3) and Article 9 of the Regulation on Payment of Retirement Allowances, etc. for National Public Officials, a decision to cancel a person's designation as a recipient of the retirement allowance on the ground that an audit agency and an investigative agency are conducting an investigation or a probe into misconduct
Factors
- 감사기관과 수사기관에서 비위 조사나 수사 중임을 사유로 한
- 특별한 사정이 없는 한
- 아직 면직의 효력이 발생하지 않아서
- 공무원의 신분을 잃지 않은 상태의 명예퇴직수당 지급대상자가 그 처분 대상임을 전제한다고
Unofficial English translation
• on the ground that an audit agency and an investigative agency are conducting an investigation or a probe into misconduct
• unless there are special circumstances
• because the effect of dismissal has not yet taken place
• a person designated as a recipient of the retirement allowance, who has not lost the status of a public official, is the target of that disposition
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2019. 5. 30. 선고 2016두49808 판결 참조
Unofficial English translation
See Supreme Court Decision 2016Du49808 decided May 30, 2019
Decisions referred to
대법원 2019. 5. 30. 선고 2016두49808 판결(공2019하, 1314)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What special circumstances would allow the cancellation of a designation after the effect of the honourable retirement has already arisen?
The judgment of the Daegu High Court on remand, which must re-examine and decide the case after the cancellation decision was held unlawful, would require this entry to be read again. So would any amendment to Article 74-2 of the National Public Service Act or to the Rules on the Payment of Honourable Retirement Allowances for National Public Officials, or a later decision defining what counts as a special circumstance.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu High Court, in its judgment of 30 September 2016 (2016Nu4318), held that a decision cancelling the designation of an eligible recipient of the honourable retirement allowance is possible whether the effect of the retirement has arisen or not, and on that premise held each of the challenged decisions lawful. The court below accepted that the plaintiff, appointed as a postman on 11 December 1985 and working as a postal service supervisor from 12 December 2013, had submitted a request for honourable retirement on 3 November 2014 after a traffic accident on 30 October 2014, that the Director-General of the Korea Post Headquarters selected him on 5 December 2014 as a recipient effective 31 December 2014, and that the head of the local post office granted him a special promotion and a voluntary retirement effective 31 December 2014 on 29 December 2014.
Supreme Court standard: The Supreme Court held that a cancellation based on the provisional ground that a person is under investigation or criminal investigation is possible only while the effect of the retirement has not yet arisen. Here the effect of the retirement arose at 00:00 on 31 December 2014, and the Director-General of the Korea Post Headquarters made the cancellation decision only afterwards, so each of the decisions was unlawful. The court below misapprehended the legal principle limiting the time at which a cancellation may be made on a provisional ground, an error that affected the result, and the Supreme Court reversed the entire judgment and remanded the case to the Daegu High Court by the unanimous opinion of the Justices.
Distinguishing conditions
- A cancellation decision made before the honourable retirement or voluntary retirement takes effect, that is, during the period from the end of the allowance application period to the retirement date, which is the stage the Rules were designed to cover.
- A clawback decision made after retirement has taken effect, where a ground under Article 74-2(3)(i), (i-2) or (i-3) of the Act, such as a sentence of imprisonment or more, is established by the result of the investigation or the trial.
- A case in which special circumstances are present, since the holding is stated for the case where there are none.
Record verification notes
Set the date on which the effect of the retirement arose against the date of the cancellation decision, since the Court relied on the rule that the effect arises at 00:00 of the date stated in the retirement notice or notification, following Supreme Court Decision 85Nu531. Then check which version of the Rules on the Payment of Honourable Retirement Allowances governed the payment decision in 2014, and whether the state seeks cancellation or a clawback after retirement, since the two are governed by different provisions. The Daegu High Court's judgment on remand will show how the rule is applied to this file.
From the official text
Points at issue
감사기관과 수사기관에서 비위 조사나 수사 중임을 사유로 한 명예퇴직수당 지급대상자 취소 결정은 아직 면직의 효력이 발생하지 않아서 공무원의 신분을 잃지 않은 상태의 명예퇴직수당 지급대상자를 처분 대상으로 하는지 여부(원칙적 적극)
Unofficial English translation
Whether a decision to cancel a person's designation as a recipient of the retirement allowance on the ground that an audit agency and an investigative agency are conducting an investigation or a probe into misconduct is a disposition directed at a person designated as a recipient of the retirement allowance who, since the effect of dismissal has not yet taken place, has not lost the status of a public official (in principle, affirmative)
Summary of the holding
국가공무원법 제74조의2 제1항, 제3항, 제5항, 국가공무원 명예퇴직수당 등 지급 규정 제3조 제3항, 제9조의 문언, 체계와 취지 등을 종합하면, 감사기관과 수사기관에서 비위 조사나 수사 중임을 사유로 한 명예퇴직수당 지급대상자 취소 결정은 특별한 사정이 없는 한 아직 면직의 효력이 발생하지 않아서 공무원의 신분을 잃지 않은 상태의 명예퇴직수당 지급대상자가 그 처분 대상임을 전제한다고 봄이 타당하다.
Order
원심판결을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daegu High Court.
Provisions referred to
국가공무원법 제74조의2 제1항, 제3항, 제5항, 국가공무원 명예퇴직수당 등 지급 규정 제3조 제3항, 제9조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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