[1] Whether the right to receive a senior survivor’s pension claim under the former Military Pension Act and the right to receive a specific survivor’s pension payment decision made by the Minister of National Defense independently becomes subject to the extinctive prescription under Article 8(1) of the former Military Pension Act (negative), and whether the same applies to the case where the senior survivor’s entitlement to a senior survivor’s pension is transferred to the next order or the next order’s bereaved family under Article 29(2)

[2] In a case where a senior bereaved family member under the former Military Pension Act claims the transfer of entitlement to a survivor pension as a result of the loss of entitlement to a survivor pension, whether the decision of the Minister of National Defense in relation thereto constitutes a disposition subject to appeal litigation (affirmative), and when the Minister of National Defense makes a decision on

[3] Whether the five-year statute of limitations under Article 8(1) of the former Military Pension Act applies to a soldier’s entitlement to an abstract entitlement to a survivor’s pension immediately acquired under Article 26(1)3 of the same Act, a person who has priority in acquiring a right to a specific survivor’s entitlement to a specific survivor’s pension, and a senior survivor’s entitlement to a monthly entitlement to a specific survivor’s entitlement to a specific survivor’s entitlement to a specific survivor’s entitlement to a specific survivor’s entitlement (affirmative)

[4] In a case where a senior bereaved family member under the former Military Pension Act lost the entitlement to a specific survivor pension and the next order acquires the entitlement to a specific survivor pension, the period of the monthly entitlement to a survivor pension and the starting point of counting the extinctive prescription period from the entitlement to a survivor pension and the Minister of National Defense claims the transfer of entitlement to a survivor pension to a specific survivor pension, whether the extinctive prescription period

[1] In full view of the legislative purport of the survivor pension system aimed at contributing to the stabilization of the livelihood and the improvement of welfare of the bereaved family members by paying proper benefits to the bereaved family members under Articles 26(1)3, 3(1)4, 12, 29(1) and (2), and 8(1) of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “Act”), the entitlement to the survivor pension due to the death of a soldier can be attributed to the extinctive prescription of the monthly entitlement to the survivor pension, and where specific entitlement to the survivor pension (basic right) upon the determination of the Minister of National Defense upon the determination of the Minister of National Defense, the entitlement to the survivor pension due to the death of a soldier can be attributed to the extinctive prescription of the survivor’s entitlement to the survivor pension, and the entitlement to the survivor’s entitlement to the survivor pension may not be independently subject to the extinctive prescription under Article 8(1)4 of the Act. This likewise applies to the bereaved family members’s entitlement to the first priority.

[2] Even if a senior bereaved family member loses the entitlement to a survivor pension by law or at the time of the loss of the entitlement to a survivor pension, the bereaved family member in the same order or the next order may receive the survivor pension only after submitting a written request for transfer of entitlement to a survivor pension to the Minister of National Defense for review and determination as prescribed by Article 56 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 22467, Nov. 2, 2010). The decision of the Minister of National Defense is an administrative act of confirming the legal effect of the transfer of entitlement to a survivor pension due to the loss of entitlement to a senior bereaved family member’s entitlement to a survivor pension, which constitutes an administrative act of confirming the legal effect of the transfer of entitlement to a survivor pension to the claimant. It is the basis for subsequent enforcement of the Act as an enforcement of the Act on Specific Facts conducted by an administrative agency (Article 2(1)1 of the Administrative Litigation Act). Accordingly, if the Minister of National Defense makes a decision of rejection, the petitioner shall appeal the decision in a manner of appeal.

[3] Article 8(1) of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “the Act”) provides that “the right to receive benefits” shall be extinguished by the extinctive prescription in a case where the right to receive benefits is not exercised for five years from the date on which the cause for the benefits arises.” This applies to all the rights to receive benefits under the Military Pension Act. As such, ① as well as the abstract right to receive benefits immediately acquired by a soldier’s first priority due to his/her death in the line of duty under Article 26(1)3 of the Act, Article 53 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 22467, Nov. 2, 2010); ② In a case where a bereaved family who acquired a specific entitlement to receive a survivor pension through a decision of the Minister of National Defense’s first claim for a survivor pension under Article 53 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 220135, Nov. 2, 20198).

[4] As a result of the occurrence of the causes under each subparagraph of Article 29(1) of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “Act”), where a senior bereaved family member loses the right to receive a specific survivor’s pension, when he/she acquires the right to receive a specific survivor’s pension immediately under Article 29(2) of the Act, the right to receive a monthly benefit accrued therefrom shall be extinguished upon completion of each statute of limitations if he/she fails to exercise the right to receive a specific survivor’s pension for five years from the date of each pension (the 25th day of each month). Where the Minister of National Defense has filed a claim for a transfer of the right to receive a survivor’s pension with the Minister of National Defense pursuant to Article 56 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 22467, Nov. 2, 2010), the right to receive a monthly benefit may be suspended for five years or less from the previous claim.

[1] Articles 3(1)4, 8(1), 12, 26(1)3, and 29 of the former Military Pension Act (Amended by Act No. 11632, Mar. 22, 2013); Article 29 of the former Military Pension Act (Amended by Act No. 11632, Mar. 22, 2013); Article 56 of the Enforcement Decree of the former Military Pension Act (Amended by Presidential Decree No. 22467, Nov. 2, 2010); Article 2(1), Article 3 subparag. 1, and 2 of the Administrative Litigation Act / [3] Article 8(1), Article 26(1), and Article 26(1)3 of the former Military Pension Act (Amended by Act No. 11632, Mar. 22, 2013; Presidential Decree No. 2413, Mar. 16, 2013; Presidential Decree No. 22014, Mar. 16, 2013

Plaintiff (Law Firm Han, Attorneys Kim Su-hwan et al., Counsel for the plaintiff-appellant)

Head of the National Armed Forces Administration

Seoul High Court Decision 2018Nu32820 decided May 24, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. The reasoning of the lower judgment reveals the following circumstances.

1) On September 14, 1992, Nonparty 1 (hereinafter “the deceased”) died on duty. The Plaintiff and Nonparty 2 are the parents of the deceased, who were married with the deceased on April 30, 1990, and the deceased’s spouse at the time of the deceased’s death. Nonparty 4 is the deceased’s children born on October 22, 1991 between the deceased and Nonparty 3.

2) After the deceased’s death on duty, Nonparty 3 received the monthly survivor pension from October 1992 to June 201, 201, following the determination of the Minister of National Defense to pay the survivor pension. However, Nonparty 3 remarrieded on March 30, 2006 and lost the entitlement to the survivor pension, and Nonparty 4 lost the entitlement to the survivor pension by becoming the age of 18 October 22, 2009.

3) On July 2016, the Plaintiff and Nonparty 2 filed a claim with the Defendant for the transfer of entitlement to a survivor pension on the grounds that Nonparty 3 and Nonparty 4 lost their entitlement to a survivor pension. The Defendant issued the instant refusal disposition against the Plaintiff and Nonparty 2 on July 22, 2016 on the grounds that the Plaintiff and Nonparty 2 did not exercise their entitlement to a survivor pension for five years from the date on which Nonparty 4 lost their entitlement to a survivor pension and the right to receive a survivor pension was extinguished due to the completion of prescription.

B. The key issue of the instant case is (1) whether the Plaintiff and Nonparty 2’s entitlement to the survivor pension acquired by Nonparty 3 and Nonparty 4 on October 22, 2009 is subject to the extinctive prescription under Article 8(1) of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “Act”); and (2) whether the Plaintiff and Nonparty 2, at the time of requesting the Defendant to transfer the entitlement to the survivor pension on July 2016, the right to the Plaintiff and Nonparty 2’s entitlement to the survivor pension expired by the lapse of five years.

2. Provisions and legal principles pertaining to the Military Pension Act

(a) Details on the acquisition and transfer of entitlement to a survivor pension and the prescription thereof;

1) In cases where a person who is or was a soldier died in the line of duty due to a disease or injury sustained in the line of duty, a survivor’s pension shall be paid to the “bereaved family” (Article 26(1)3 of the Act). The term “bereaved family” refers to the spouse, children, parents, grandchildren, and grandparents who were supported by him at the time of the soldier’s death (Article 3(1)4 of the Act). The priority order of the bereaved family members entitled to receive a survivor’s pension shall be the order of property inheritance (Article 12 of the Act). In cases where a person who is or was a soldier re-sends a person entitled to a survivor’s pension, and a child who is not in the degree of disability prescribed by the Presidential Decree reaches the age of eighteen, he/she shall lose the entitlement to a survivor’s pension (Article 29(1) of the Act). In such cases, if any, he/she shall transfer

2) Meanwhile, in principle, the right to receive various benefits under the Military Pension Act shall be extinguished by the extinctive prescription if it is not exercised within five years from the date on which the ground for the benefits occurred (Article 8(1)3 of the Act). In the case of a survivor pension under Article 26(1)3 of the Act, “the date on which the ground for the benefits occurred” refers to “the date on which the relevant soldier died while in service due to a disease or injury caused by official duties” (see Supreme Court Decision 2007Du18314, Aug. 21, 2008).

B. Whether the right to receive a survivor pension transferred from a senior bereaved family member is subject to extinctive prescription

In full view of the contents and structure of the provisions on the survivor pension under the Military Pension Act, and the legislative purport of the system of the survivor pension with the aim of contributing to the stabilization of the livelihood and the improvement of welfare of the bereaved family by paying appropriate benefits to the bereaved family members, the entitlement to the survivor pension due to the death of a soldier can only be subject to extinctive prescription in a case where a prior bereaved family files a claim for the survivor pension within five years from the date on which the soldier died and specific right to the survivor pension (basic right) arises upon receipt of a decision of the Minister of National Defense for the payment of the survivor pension, and the right to the monthly entitlement to the survivor pension arising therefrom is not subject to extinctive prescription under Article 8(1) of the Act independently. This does not apply to the case where a prior bereaved family is transferred to the next-order or the next-order bereaved family under Article 29(2) of the Act

1) Article 29(2) of the Act provides that “When a person who has the right to receive a survivor pension loses his right,” the “right shall be transferred to the person having the same order of priority or to the person having the same order of priority.” Therefore, interpreting that the person having the right of priority or the person having the same priority is transferred to the person having the same order of priority or the person having the next priority at the time when he loses his right to receive the survivor pension as it is in accordance with Article 29(2) of the Act without mediating a separate decision of the Minister of National Defense, rather than granting a new right to the person having the same order of priority or the person having the next priority. Therefore, if a person having the first priority loses his right to receive the pension under the condition of an abstract right to receive the survivor’s right to receive the survivor’s right to receive the survivor’s right to receive the survivor’s right to receive the survivor’s right to receive the survivor’s right to receive the pension, it shall be deemed that the person having the first priority or the next priority of the survivor’s right to receive the survivor’s pension.

2) A survivor pension under the Military Pension Act is established for the purpose of contributing to the stabilization of the economic life and the improvement of welfare of the bereaved family members by paying the pertinent benefits to the bereaved family members supported by the soldier (Article 1 of the Act). It is against the legislative intent of the survivor pension system to ensure that the bereaved family members lose the entire entitlement to the survivor pension because the bereaved family members did not file a claim for the transfer of the survivor pension within five years from the date on which the entitlement to the survivor pension was lost. In addition, the fact that the bereaved family members are unable to easily understand the changes in the status of the bereaved family members if their residence are different or contact with each other is not known, is too harsh in view of the fact that other bereaved family members are unable to easily understand the changes in the status of the bereaved family members. Accordingly, if the State decided to pay a survivor pension with respect to the death of a specific military person, if there was a change in the beneficiary among the bereaved family members, and

3) The reason for the existence of the extinctive prescription system is that respect the permanent state of fact, and the locked person is not protected on the right, and in particular, the latter’s meaning is strong in the case of extinctive prescription (see Supreme Court en banc Decision 2015Da232316, Oct. 18, 2018). If any of the bereaved family members exercises his right in relation to the death of a specific military person, it is difficult to deem that the non-exercise of the right to receive a survivor’s pension following the death of the said military person continues for a considerable period of time, and it is necessary to confirm an uncertain legal relationship through the extinctive prescription. If the bereaved family members completely do not exercise their right to receive a survivor’s pension, but if any of the bereaved family members receives a decision to pay a survivor’s pension and receives a decision to pay the survivor’s pension, the bereaved family members, who

From the standpoint of the State or the Minister of National Defense, the payment of a survivor's pension to the same rank or the next rank is not a new obligation for the payment of the survivor's pension which is not a new obligation for the payment of the survivor's pension which is entirely anticipated, but it is merely a payment to other bereaved family members of the pension which was already paid to the senior

4) The specific entitlement to a monthly entitlement to a survivor pension is realized by exercising the right to receive a monthly entitlement as a fundamental right derived therefrom, so long as the monthly entitlement to a specific entitlement to a survivor pension has arrived at the maturity of each month and the entire amount of the monthly entitlement to a survivor pension has not expired by prescription, only the specific entitlement to a survivor pension does not have to be extinguished by prescription. The specific entitlement to a monthly entitlement to a survivor pension has become an independent claim upon the arrival of each month and the period of extinctive prescription is applied respectively at the time when the final entitlement to a survivor pension has become due, and the specific entitlement to a survivor pension has lost the significance of existence as a fundamental right. Therefore, the specific entitlement to a survivor pension does not need to be particularly problematic.

(c) Disposition of decision on a request for transfer of entitlement to survivor pension;

Even if a bereaved family member is legally transferred the entitlement to a survivor pension at the time of the loss of his/her entitlement to a survivor pension, the bereaved family member in the same order or the next order is entitled to receive the survivor pension only after submitting a written request for transfer of entitlement to a survivor pension to the Minister of National Defense for review and determination as prescribed by Article 56 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 22467, Nov. 2, 2010; hereinafter “Enforcement Decree”). Accordingly, the decision of the Minister of National Defense is an administrative act of "verification" as to whether the claimant lost entitlement to a survivor pension has legal effect due to the loss of entitlement to a senior bereaved family member, and it is the basis for subsequent enforcement of the Act as to the payment of a monthly survivor pension (Article 2(1)1 of the Administrative Litigation Act). Accordingly, if the Minister of National Defense makes a decision of refusal, it shall be subject to appeal by the method of filing a lawsuit against the Minister of National Defense, which is the subject of review and determination of entitlement to a survivor pension.

D. The period and starting point of counting the extinctive prescription of the monthly entitlement to a specific survivor pension

1) The amount of a pension benefits under the Military Pension Act shall be paid from the month following the month in which the ground for the payment of benefits occurred to the month in which the ground for the payment of benefits is extinguished (Article 17(1) and (4) of the Act, and Article 32(1) of the Enforcement Decree of the Military Pension Act) on the 25th day of each month (see Supreme Court Decision 2002Du1028, Mar. 28, 2003).

2) Article 8(1) of the Act provides that “the right to receive benefits” shall be extinguished by the prescription when it is not exercised for five (5) years from the date on which the cause for the benefits occurred. This applies to all the rights to receive benefits under the Military Pension Act. As such, ① as well as the abstract survivor’s right to receive benefits immediately acquired under Article 26(1)3 of the Act due to the death of a soldier in the line of duty, ② as a result of the first claim for the survivor’s pension under Article 53 of the Enforcement Decree, the bereaved family who acquired the specific entitlement to receive the survivor’s pension upon the decision of the Minister of National Defense’s payment by the first claim for the survivor’s pension under Article 53 of the Enforcement Decree shall be deemed to have accrued from the following month of the deceased’s death in the line of duty, or ③ as a senior bereaved family member loses the entitlement to specific survivor’s right to receive the survivor’s pension under each subparagraph of Article 29(2) of the Act, five (5) years period of extinctive prescription is applicable to the first claim for the benefits.

3) In full view of the aforementioned legal principles and the relevant provisions, in case where a senior bereaved family member loses the right to receive a specific survivor pension as a result of the occurrence of the causes prescribed in each subparagraph of Article 29(1) of the Act and the loss of the right to receive a specific survivor pension, the right to receive a monthly benefit accrued therefrom, if he/she did not immediately exercise the right to receive a specific survivor pension under Article 29(2) of the Act for five years from the payment date of each pension (25th day of each month), shall be terminated by prescription; and in case where he/she requests a transfer of the right to receive a survivor pension pursuant to Article 56 of the Enforcement Decree of the Act, he/she objectively expressed the purport that he/she shall exercise the right to receive a monthly benefit that has already occurred, so the monthly entitlement within

3. Determination as to the instant case

A. We examine the above facts in light of the above legal principles.

1) The right to request an abstract survivor pension due to the death of the deceased in the line of duty became entitled to a specific survivor pension upon receiving a claim for the survivor pension from the Minister of National Defense within five (5) years from the date of the deceased’s death. This specific right to receive a survivor pension is transferred to Nonparty 4 and Nonparty 2 by law as he/she re-born on March 30, 2006, and on October 22, 2009, Nonparty 4 became 18 years old. The specific right to receive a survivor pension is not subject to the extinctive prescription prescribed in Article 8(1) of the Act independently, and even if Nonparty 4 and Nonparty 2 did not request the transfer of the entitlement to a survivor pension within five (5) years from the date of the transfer of the entitlement to a specific survivor pension, the specific right to receive a survivor pension itself does not terminate by prescription independently.

2) The Plaintiff and Nonparty 2 may receive a monthly survivor pension from November 2009, which is the month following the month in which they acquired the right to receive a specific survivor pension (the date when Nonparty 4 attains the age of 18), but the part for which the extinctive prescription of the right to receive a monthly survivor pension was not claimed five years since November 25, 2009 and has not been claimed five years since the lapse of each statute of limitations. As such, the Plaintiff and Nonparty 2 may only receive a monthly survivor pension that occurred within five years after calculating the period from July 2016 when they filed a claim for the transfer of the right to receive a survivor pension.

B. Nevertheless, without distinguishing a specific entitlement to a survivor pension from a monthly entitlement, the lower court determined that the Plaintiff and Nonparty 2’s entitlement to a survivor pension extinguished by extinctive prescription on the grounds indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the acquisition and transfer of entitlement to a survivor pension and the extinctive prescription thereof under the Military Pension Act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)