18.Case on Children 18 years old or over Requesting Survivors’ Benefit under the Public Officials Pension Act

[26-1(B) KCCR 423, 2012Hun-Ma515, May 29, 2014]

In this case, the Constitutional Court held that ① the part about children in Public Officials Pension Act Article 3 Section 2 which excludes children 18 years old or over from the recipient of survivors’ benefits ② Public Officials Pension Act Article 30 Section 1 which stipulates that 1/2 of lump-sum survivors’ pension amount shall be paid to linear ascendents or descendents who is not a survivor in case there are no survivors, and the part about lump-sum survivors’ pension in Enforcement Decree of the Public Officials Pension Act Article 24 Section 1 do not infringe on the equality right or property right of the complainant who is 18 years old or older.

Background of the Case

Complainant requested lump-sum survivors’ pension to Government Employees Pension Service after his mother, a public official, died. However the Government Employees Pension Service paid thecomplainant only 1/2 of the lump-sum survivors’ pension amount accordingto Enforcement Decree of the Public Officials Pension Act Article 24 Section 1, as complainant does not qualify as survivor under Article 3 of the Public Officials Pension Act, being over 18 at the time of his mother’s death, and because he is a linear descendent who is not his/her survivor under Article 30 Section 1 of the Public Officials Pension Act.

Complainant filed this constitutional complaint arguing that Public Officials Pension Act Article 3 Section 2 which excludes children 18 years old or over from the recipient of survivors’ benefits, and Public Officials Pension Act Article 30 Section 1 which stipulates that 1/2 of lump-sum survivors’ pension amount shall be paid to linear ascendents or descendents who is not a survivor in case there are no survivors

infringe on the equality right or property right of the complainant who is 18 years old or older.

Provisions at Issue

The subject matter of this case is whether the part about children in Former Public Officials Pension Act (amended by Act No. 9905 on December 31, 2009, and before amended by Act No. 11488 on October 22, 2012) Article 3 Section 2 (hereinafter ‘Survivor Provision’), part about lump-sum survivors’ pension in Public Officials Pension Act (amended by Act No. 10984 on August 4, 2011) Article 30 Section 1, Former Enforcement Decree of Public Officials Pension Act (amended by Enforcement Decree No. 23276 on November 1, 2011, before amended by Enforcement Decree No. 23651 on March 2, 2012) Article 24 Section 1 Item 4 respectively (hereinafter ‘Benefit Provision’) infringe on the complainant’s fundamental rights.

Former Public Officials Pension Act (amended by Act No. 9905 on December 31, 2009, and before amended by Act No. 11488 on October 22, 2012)

Article 3 (Definitions) ② Children and grandchildren prescribed in paragraph (1) 3 shall be limited to the following persons. In such cases, grandchildren shall be limited to cases where they do not have fathers or where their fathers are in the status of disability prescribed by Presidential Decree:

1. Those who are under 18 years of age;

2. Those who are not less than 18 years of age and in the status of disability determined by Presidential Decree.

Public Officials Pension Act (amended by Act No. 10984 on August 4, 2011)

Article 30 (Special Cases for Recipients of Benefits) (1) In the case of death of any public official or former public official, when no survivor

to receive benefits exists, an amount not exceeding the limit prescribed by Presidential Decree shall be paid to his/her lineal ascendant or descendent who is not his/her survivor, and if no such lineal ascendant or descendent exists, it may be used for the said public official or former public official.

Former Enforcement Decree of Public Officials Pension Act (amended by Enforcement Decree No. 23276 on November 1, 2011, before amended by Enforcement Decree No. 23651 on March 2, 2012)

Article 24(Special cases for when there are no survivors) ①In case there are no survivors to receive the pension, the amount paid to his/her lineal ascendant or descendent who is not his/her survivor, according to Article 30 of the Actor the amount that may be used for deceased public official is as follows.

4. In case of other long term benefits, the whole original benefit amount. However,in case of lump-sum survivors’ pension and survivors’ compensation, 1/2 of the original benefit amount

Summary of the Decision

1. Whether the Survivor Provision infringes on complainant’s equality right

Public officials pension requires managing limited funds to contribute to livelihoods and welfare of public officials and their survivors. So the scope of children eligible to become recipients of lump-sum survivors’ pension can be restricted according to needs and importance of survivors’ benefits, which is judged by whether the children have ability to pursue independent livelihoods at minimum. When children reach the age of 18 they are presumed to have independent working abilities according to Labor Standards Act, can marry, acquire powers to independently judge for themselves and overall, reach physical and mental maturity. The Survivor Provision excluded children 18 or older

from the recipient of survivors’ benefits considering that they are able to acquire social independence to earn minimum livelihood.

Acknowledging that in case of children 18 or older pursuing education or military draft service it is difficult to assume independent lives, still the scope of survivors needs to be restricted due to limited pension. As children may be differentiated by the age of 18 regarding the ability to pursue independent livelihoods at minimum, it is not unreasonable that children 18 or older still pursuing education or drafted by military are excluded.

Thus it is reasonable that the Survivor Provision excluded children 18 or older from the scope of survivors, and the Survivor Provision does not infringe on complainant’s equality right.

2. Whether Public Officials Pension Act Article 30 Section 1 part of the Benefit Provision violates rule against blanket delegation

In case there are no survivors to receive lump-sum survivors’ pension, the amount to be paid to linear ascendents/descendents who are not survivors should be determined according to the financial state of public officials pension, as well as the size and different types of payment to linear ascendents/descendents who are not survivors. This decision should be made by the administrative branch equipped with the expertise to factor in such mercurial and technical considerations.

In case there are no survivors to receive lump-sum survivors’ pension, the amount to be paid to linear ascendents/descendents who are not survivors will predictably be at most the lump-sum survivors’ pension paid to survivors if there were such survivors. Also as lump-sum survivors’ pension is paid in accordance with insurance rules funded by contributions of public officials, it is foreseeable that the extent of such contributions and insurance rules will be taken into consideration.

As such, in case there are no survivors to receive lump-sum survivors’ pension, what will be stipulated in the Enforcement Decree about the amount paid to the linear ascendents/descendents who are not survivors

is sufficiently predictable, according to the Public Officials Pension Act Section 30 Article 1 part of the Benefit Provision. Thus the Public Officials Pension Act Section 30 Article 1 part of the Benefit Provision does not violate the rule against blanket delegation.

3. Whether Benefit Provision infringes on complainant’s property right

The Benefit Provision pays 1/2 of the lump-sum survivors’ pension amount to linear ascendents/descendents who are not survivors in case there are no survivors, to promote stable livelihoods and welfare of public officials and their survivors according to insurance rules with the limited pension funds, and also to take into account the large part of pension funds created by contributions made by public officials. The reason the Benefit Provision pays 1/2 of the lump-sum survivors’ pension amount to linear ascendents/descendents who are not survivors in case there are no survivors is because at least the part created by the contributions made by public officials should benefit linear ascendents/ descendents who are not survivors. Also, linear ascendents/descendents who are not survivors receive not only 1/2 of the lump-sum survivors’ pension amount pursuant to the Benefit Provision but also receive retirement allowances funded by state or local government from Government Employees Pension Service, regardless of contributions made by public officials. Considering all of the above, it cannot be said that the Benefit Provision fails to embody the property aspect of contributions made by public officials in legislating benefit rights of linear ascendents/descendents who are not survivors.

As seen above, the Benefit Provision reasonably specifies the benefit rights of linear ascendents/descendents who are not survivors taking into account the limit of pension funds, the property aspects of contributions made by public officials, etc. Thus the Benefit Provision does not violate complainant’s property right exceeding legislative discretion.

Summary of Concurring Opinion by one Justice

Children 18 or older pursuing education for jobs like college or serving various military duties cannot be expected to earn sufficient income to maintain independent livelihood, putting them in no different situation from those under 18 in terms of needs and importance of survivor benefit. The standard of age of 18 stipulated by the Survivor Provision indiscriminately excluding children 18 or older from the scope of survivors is unreasonable discrimination, violating equality rights of children 18 or older pursuing education or in military service.

However in this case there was no evidence to show that the complainant, 29 years old at the time of his mother’s death, was pursuing education for jobs like college or serving various military duties. Therefore the Survivor Provision is unconstitutional but does not infringe on the complainant’s equality rights.