[손해배상(자)][집39(2)민,214;공1991.7.1,(899),1608]
(a) Whether a heir may acquire a survivor's pension paid by the deceased, who is his/her bereaved child, under the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, as his/her lost income (affirmative);
B. The meaning of “when there is a mental or physical disability to the extent that the person has no ability to live” as a requirement for entitlement to pension in the case of a minor not stipulated in Article 12(2) of the above Act
(a) Survivors’ pension for the children of soldiers and policemen killed in action under the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, the purpose of which is to guarantee the livelihood of the relevant beneficiary or compensate for losses, and at the same time perform the same function in relation to the family members whose livelihood depend on the import of the relevant person, so the survivors’ pension that could have been obtained by the children of soldiers and policemen killed in action who died in the other person’
B. In the case of non-minors stipulated in Article 12(2) of the above Act, the term "when there is a mental disorder to the extent that the person has no ability to live" is merely a physical disorder to the extent that the person has no ability to live, and the person has no ability to live and the person has no mental disorder shall not be treated as a cause to the extent that the person has a mental disorder.
(a) Articles 763 and 393 of the Civil Act;
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant)
Kim Jong-un et al., Counsel for the defendant-appellant-appellee
[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee
Seoul High Court Decision 90Na42260 delivered on December 20, 1990
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
1. Regarding ground of appeal No. 1
According to the judgment of the court below, the deceased Kim Jong-sung, the deceased decedent, was paid a veterans compensation annuity of KRW 107,00 each month from the Ministry of Patriots and Veterans Affairs pursuant to Articles 5 and 12(2) of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State as one of the children of soldiers and policemen who were killed in action, due to unfluent mental or physical disorder, and Article 21 of the Enforcement Decree of the same Act. The payment period of the compensation annuity is until
The purpose of the survivor pension for the children of soldiers and police officers killed in action under the Honorable Treatment of Persons of Distinguished Service to the State Act is to provide a livelihood security or a compensation for losses to the beneficiary in full view of the purpose prescribed by the same Act (Article 1), the basic principle of honorable treatment (Article 2), and other various provisions, and at the same time, to carry out the same function in relation to the family members who depend on the income of the beneficiary, so it is reasonable to view that the survivor pension that could have been obtained by the children of soldiers and police officers killed in action due to other person's tort is a lost profit and an heir can acquire
In this case, the court below's acceptance of the plaintiffs' claims on the premise that it constitutes a lost benefit and an inheritance of the above survivor pension claim is justified in light of the above, and there is no illegality such as the theory of lawsuit.
2. Regarding ground of appeal No. 2
According to Article 6 (1) and (2) of the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, their bereaved family members or family members who are subject to this Act, an application for registration shall be made to the Minister of Patriots and Veterans Affairs to be subject to the application of this Act. The decision here seems to be an administrative act. On the other hand, "when a person has a mental disorder to the extent that he has no ability to live", which is a requirement for the eligibility to receive pension in the case of a minor under Article 12 (2) of the same Act, is merely an obstacle to mental disorder, such as a litigation, and it shall not be deemed that the non-party has a ability to live and has a mental disorder. Thus, it shall not be deemed that the non-party is disqualified to receive pension as seen above on the ground that there was income such as the theory
In addition, the decision of the beneficiary of the survivor pension mentioned above is without any assertion or proof as to the fact that the decision of the beneficiary of the survivor pension was null and void as a matter of course or cancelled by the competent authority, and that the deceased was merely a bridge (No. 156 witness witness of the first instance trial) and thus, the deceased was merely a bridge (No. 156 witness witness of the first instance trial). Thus, the judgment of the court below which judged the deceased as the beneficiary of the survivor pension mentioned above is justified and the theory of criticism cannot be adopted.
3. Ultimately, the appeal is dismissed for lack of merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Young-young (Presiding Justice)