In a case where Party A, a former insured of the National Pension Service, married with Party B, was married with Party B and died after the combination, but the National Pension Service rendered a decision that Party A’s father, who was the deceased’s father, constitutes a beneficiary of the survivors’ pension as prescribed in Article 72 of the former National Pension Act on the ground that Party A was the bereaved family member whose livelihood was maintained by the deceased, and Party C filed a lawsuit seeking revocation of the decision on the eligibility of the survivors’ pension for the payment of the survivors’ pension, the case holding that Party C’s decision to pay the survivors’ pension on the premise that Party B was excluded from the

In a case where Party A, who was an insured person of the National Pension Service, was married with Party B and died after the combination, the National Pension Service determined that the deceased’s father, who was the deceased’s father, constitutes a beneficiary of the survivors’ pension under Article 72 of the former National Pension Act (amended by Act No. 11143, Dec. 31, 201; hereinafter “former National Pension Act”) on the ground that the deceased’s father, who was the deceased’s father, was the bereaved family member living together with the deceased, and filed a lawsuit seeking revocation of the determination of the beneficiaries’ pension as to the deceased’s deceased status, the case held that the former Enforcement Decree of the National Pension Act and the former Enforcement Decree of the National Pension Act (amended by Presidential Decree No. 2359, Dec. 8, 2011) recognizes the deceased’s spouse and child as a “bereaved family member whose livelihood had been maintained by his/her duty of support regardless of his/her potential eligibility for the support of the deceased’s child, and that the State should fully interpret the status of the minor’s eligibility for the support.

Articles 72(1)3 and 73(1) and (2) of the former National Pension Act (Amended by Act No. 11143, Dec. 31, 201); Article 47 [Attachment Table 1] of the former Enforcement Decree of the National Pension Act (Amended by Presidential Decree No. 23359, Dec. 8, 2011);

[Judgment of the court below]

National Pension Service (Law Firm Ulul, Attorneys Ansan-young et al., Counsel for the defendant-appellant)

Daegu District Court Decision 2016Guhap20847 Decided July 19, 2016

March 10, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s decision to pay survivor pension against Nonparty 1 on August 28, 2015 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. As the father of the Plaintiff, Nonparty 2 (hereinafter “the deceased”) married with Nonparty 3 on May 2, 200, and married with Nonparty 3 on November 20, 200 and married with Nonparty 3 on July 22, 2008 (the deceased paid the Plaintiff’s child support) and died on January 21, 201.

B. On August 28, 2015, the Defendant rendered a decision that Nonparty 1, the father of the deceased, constitutes a beneficiary of the survivor pension under Article 72 of the former National Pension Act (amended by Act No. 11143, Dec. 31, 201; hereinafter “former National Pension Act”) on the ground that Nonparty 1 was the bereaved family member whose livelihood had been maintained by the deceased (hereinafter “instant disposition”).

C. On December 9, 2015, the Plaintiff dissatisfied with the instant disposition and filed a request for examination with the Defendant, but the Plaintiff was dismissed on February 29, 2016.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3 (including virtual numbers; hereinafter the same shall apply), Eul evidence 2 and 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the absence of the deceased’s spouse, the Plaintiff is the first beneficiary of the survivor pension, and the Plaintiff does not constitute “cases where it cannot be deemed that there is a clear support relationship due to departure from home or disappearance, etc.” which is the grounds for exclusion from the beneficiary of the survivor pension. Nevertheless, the instant disposition against Nonparty 1, who is only the second beneficiary of the survivor pension, who is not the Plaintiff, is unlawful.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

1) The Plaintiff’s priority in entitlement to a survivor pension

Article 72(1)3 and Article 73(1) and (2) of the former Enforcement Decree of the National Pension Act (amended by Presidential Decree No. 2359, Dec. 8, 201; hereinafter “former Enforcement Decree”) provides that “A bereaved family member whose livelihood had been supported by a former national pension subscriber at the time of his/her death (only in the case of his/her spouse, children, and parents’ priority order) shall be paid a survivor pension, and shall be delegated to the Presidential Decree the criteria for recognition as bereaved family members (Article 72(1)3 and Article 73(1) and (2)). Accordingly, the former Enforcement Decree of the National Pension Act (amended by Presidential Decree No. 2359, Dec. 8, 201; hereinafter “former Enforcement Decree”) recognizes “a bereaved family member whose livelihood had been supported by his/her spouse or child, regardless of whether he/she share the same residence with his/her parent (which is in principle recognized)” (hereinafter “reasons for exclusion”).

As seen earlier, the deceased was married with the non-party 3 and died after having given birth to the plaintiff and divorced from the non-party 3. As such, the beneficiary of the bereaved family pension who had no spouse at the time of death is the first priority beneficiary of the national pension who was a deceased's child, barring special circumstances.

2) Whether the Plaintiff was excluded from the beneficiary of the survivor pension

A) Defendant’s assertion

In light of the legislative purpose and purport, etc. of the former National Pension Act and the former Enforcement Decree, “bereaved family members who have lived with him/her,” which are the requirement for receiving the survivor pension, shall be construed to mean the bereaved family members who have been in a realistic and factual support relationship, not the normative support relationship. Since the Plaintiff was not supported by the deceased at the time of the death of the deceased, the beneficiary of the survivor pension of the national pension, which the deceased joined, is a parent, and is the non-party 1 who was supported by the deceased in a realistic and factual manner.

B) Determination

According to the above quoted evidence and the statements of Gap evidence Nos. 2, 3, Eul evidence Nos. 2, 2, 3, 5, 6, and 8, the deceased was separated from the non-party Nos. 3 on March 27, 2004, which was prior to the divorce, and the plaintiff was living together with the non-party No. 3, the mother, according to his parent’s separation and divorce.

However, in light of the following circumstances, in light of the relevant Acts and subordinate statutes, and the evidence Nos. 1 through 3, 5, and 7, it is insufficient to recognize that the above facts recognized and the statement Nos. 1 through 11 are excluded from the beneficiary of the survivor pension on the grounds that the plaintiff was excluded from the beneficiary of the survivor pension. Thus, the defendant's above assertion is without merit.

① In the case of a child relationship, the most essential part of the duty to support marriage and family life under the Constitution (Article 36(1) of the Constitution), and the duty to support under the Civil Act (Article 974 subparag. 1 of the Civil Act) also has a strong meaning compared to the support relationship between other relatives. In particular, the parent’s duty to support a minor child is the so-called “the primary duty to support” in which the other party (a dependent)’s living should be guaranteed to the same extent as his/her own living. Accordingly, the former National Pension Act and the former Enforcement Decree thereof recognize a minor as “a bereaved family who has maintained his/her livelihood” regardless of whether he/she share the same residence with his/her parents (it is recognized in principle). Thus, the reason to exclude the minor child from the survivor pension should be strictly interpreted.

② If a limited interpretation is made only by the bereaved family members who were in a realistic and factual support relationship without considering the normative support relationship as alleged by the Defendant, it would result in the State’s ratification of illegal state in which a national pension holder who is liable to support a minor child evades the support obligation and actually abandons the minor child. In addition, given that a minor child fully loses the possibility of the support or the maintenance of the livelihood of the insured, etc. who was potentially dead due to the death of the insured, it is reasonable to consider such normative support relationship along with the actual and factual support relationship in interpreting the eligibility requirement of the survivor pension. Accordingly, it is difficult to accept the Defendant’s aforementioned restrictive interpretation.

③ The phrase “reasons, such as runaway from home, disappearance, etc.” stipulated in the exclusion ground refers to cases where it is clearly deemed that there was a support relationship at the time of the death of the National Pension Service’s insured, etc. (Supreme Court Decision 2011Du525 Decided April 13, 2012). However, in light of the content and purport of the relevant statutes as seen earlier and the meaning of entitlement to the survivor pension for minor children, etc., the reason should be limited to cases where it cannot be deemed that there was a support relationship clearly due to departure or disappearance. In other words, the Plaintiff’s divorce and the failure to perform the duty to support the deceased was in a state of temporary failure to support the deceased, and it is difficult to deem that the Plaintiff and the deceased were aware of the occurrence and death of the deceased’s child in the actual context (at least the child relationship between the Plaintiff and the deceased, and the Plaintiff was known of the occurrence and death of the deceased).

④ Meanwhile, the written evidence Nos. 1 through 11 alone is insufficient to recognize that Nonparty 1, who was recognized as the beneficiary of a survivor pension, was “the deceased was able to share the deceased’s residence with the deceased (including a case where the deceased’s residence was changed due to his school business, etc.)” or “the deceased received economic support, such as living expenses, on a regular basis, from the deceased.” Rather, according to each of the above evidence, the deceased was divorced with Nonparty 3 and went through the country, and was treated at ○○ University’s △△△△△ University located in Daegu after the Maamamba diagnosis. The deceased’s domicile was transferred to Nonparty 1’s domicile, which was the domicile of Nonparty 1 on January 18, 2011, and Nonparty 1 paid the deceased’s medical expenses and funeral expenses, and paid the deceased’s debt to Nonparty 4 on behalf of the deceased.

D. Sub-determination

Therefore, the instant disposition that the Plaintiff decided to pay the survivor pension to Nonparty 1 on the premise that the Plaintiff was excluded from the beneficiary of the survivor pension is unlawful and should be revoked as it is unlawful.

4. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Sung-manon (Presiding Judge)