205dou1596 Request for Adjudication on unconstitutionality of Law

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January 12, 2016

205Guhap26380 Such revocation between the applicant and the National Pension Management Corporation

With respect to cases, the National Pension Act (the proviso of Article 63 (1) 1 of the National Pension Act) was requested to determine whether the case is unconstitutional;

The order is as set forth in the text.

1. The summary of the case which is the premise of the request for adjudication on constitutionality;

A. The applicant’s wife, 000 worked for 00 corporations, and the person who joined the place of business under the National Pension Act, and on April 4, 2004: 15:40 of the childbirth, died as a private person.

B. The applicant filed a claim for the payment of a survivor pension with the National Pension Management Corporation around August 2005, but the National Pension Management Corporation paid KRW 11,760,000 to the applicant for a lump-sum death payment on the 19th of the same month, and the applicant rejected the payment of a survivor pension on the ground that the payment does not include the scope of bereaved family members stipulated in Article 63 of the National Pension Act.

C. The applicant, who is dissatisfied with the instant disposition, filed an administrative litigation against the National Pension Management Corporation (2005Guhap26380), seeking revocation of the instant disposition, and filed an application for an adjudication on constitutionality of law as ordered.

2. Legal provisions and history which are the subject of a request for adjudication on unconstitutionality;

(a) the applicable legal provisions;

National Pension Act

Article 63 (Scope, etc. of Survivors)

(1) Survivors entitled to the bereaved family benefits shall be the following persons whose livelihood was supported by a person who is or was an insured person at the time of his death. In this case, the standards for recognition of persons whose livelihood was supported by a person who is or was an insured person shall be prescribed by the Presidential Decree:

1. Spouse: Provided, That in the case of husband, it is limited to a husband who is aged 60 or older, or a person who falls under the class 2 or higher of the disability grade;

National Pension Act (amended by Act No. 5623 of December 31, 1998)

Article 63 (Scope of Survivors, etc.)

(1) Bereaved family members entitled to receive the survivors’ pension shall be the following persons whose livelihood is supported by the person who is or was an insured person at the time of his death:

1. Spouse: Provided, That in the case of a father, it is limited to those who are sixty or more years of age or fall under class 2 or higher of the disability grade;

(b) relevant legal provisions;

National Pension Act

Article 6 (Persons Subject to Subscription)

People aged between 18 and under 60 who reside in the Republic of Korea shall be eligible to join the national pension: Provided, That this shall exclude public officials, soldiers, and private school teachers and staff subject to the Public Officials Pension Act, the Military Pension Act, the Pension for Private School Teachers and Staff Act, and other persons determined by the Presidential Decree.

Article 7 (Classification of Subscribers)

The subscribers shall be classified into workplace subscribers, district subscribers, voluntary subscribers, and voluntary continuing subscribers.

Article 8 (Workplace Subscribers)

(1) Workers and employers who are between 18 and 60 years of age at a workplace as prescribed by the Presidential Decree in consideration of the type of business, the number of workers, etc. (hereinafter referred to as the "mandatory applicable workplace") shall naturally become the workplace subscribers: Provided, That any person who falls under any of the following subparagraphs shall be excluded herefrom:

1. A person who has acquired a right to receive a retirement pension, disability pension, or retirement pension under the Public Officials Pension Act, the Pension for Private School Teachers and Staff Act, or the Special Post Offices Act, or a retirement pension, wounded pension, or lump-sum retirement pension under the Military Pension Act (hereinafter referred to as "beneficiary of retirement pension, etc.");

2. Beneficiaries under the National Basic Living Security Act.

Article 62 (Persons Entitled to Survivor Pension)

(1) When a person who falls under any of the following subparagraphs dies, a survivor's pension shall be paid to his/her bereaved family members: Provided, That this shall be limited to cases where a person who has been insured for less than one year dies from a disease or injury incurred during his/her subscription

1. Persons eligible for old age pension;

2. A person who had been an insured person with an insurance coverage period of ten years or more;

3. Policyholders;

4. A beneficiary of a disability pension falling under the second degree or higher of the disability;

Article 66 (Suspension of Payment of Survivors’ Pension to Spouse)

(1) With respect to a wife who is a beneficiary of a survivors' pension, the payment of the survivors' pension shall be suspended until the age of fifty is reached after the entitlement to the survivors' pension arises for five years after the entitlement to the survivors' pension occurs: Provided, That the payment shall not be suspended in cases where the beneficiary falls under

1. When he/she has at least a second degree disability;

2. When a person who is or was an insured person is under eighteen years of age, or maintains the livelihood of his child with a disability in the second degree or higher;

3. When he fails to engage in such income-generating activities as determined by the Presidential Decree;

Article 67 (Lump Sum Refund)

(1) If a current or former insured falls under any of the following subparagraphs, a lump-sum refund may be paid at the request of the person himself/herself or his/her bereaved family members:

1. When a person whose insurance coverage period is less than ten years reaches the age of sixty;

2. When a person who is or was an insured person dies: Provided, That it is limited to the case where a person who was an insured person or a person who had been an insured person for ten or more years dies, and the bereaved family pension under the provisions of Article 72-2 shall not be paid.

(2) The amount of a lump-sum refund under paragraph (1) shall be as follows: Provided, That the interest calculated under the conditions as prescribed by the Presidential Decree shall be added to a person who was disqualified as a subscriber before reaching the age of 60 and has caused any cause for the payment of a lump-sum refund under any subparagraph of paragraph (1) without becoming a subscriber:

1. Workplace subscribers;

The amount obtained by adding interest calculated respectively as prescribed by the Presidential Decree to contributions and charges, respectively.

2- locally provided policyholders; . Persons who have made subsequent payments of the premium under Article 77-3;

The amount obtained by adding to the pension premiums borne by the principal or to the later paid pension premiums as prescribed by the Presidential Decree.

(3) In claiming a payment of the lump sum refund under paragraph (1), the provisions of Article 63 shall be applicable mutatis mutandis to the scope of bereaved family members, priority in claims, etc.

Article 69-2 (Lump Sum for Death)

(1) In case where a person who is or was a policyholder does not have the bereaved family under the provisions of Article 63 when he dies, a lump sum for death shall be paid to the spouse, children, parents, grandchildren, grandparents, brothers and sisters, or first-class collateral blood relatives within the fourth degree of relationship, whose livelihood is supported by a person who is or was a former policyholder. In this case, the standards for recognition of persons whose livelihood was supported by a person who is or was a policyholder shall be prescribed by the Presidential Decree

(2) The lump-sum death payment under paragraph (1) shall be the amount corresponding to the lump-sum refund of a person who is or was an insured person, and the amount shall not exceed four times the larger of the standard monthly income amount of the deceased person, out of the average amount of the standard monthly income amount of the deceased person, calculated by converting the final standard monthly income amount of the deceased person into the current value of the year preceding the receipt of the lump-sum death payment by the annual revaluation rate

(3) The order of priority among persons to receive the lump-sum death payment under paragraph (1) shall be the spouse, children, parents, grandparents, brothers and sisters, grandchildren and collateral blood relatives within the fourth degree of relationship. In such cases, when two or more persons having the same priority exist, the payment shall be made equally, and the method of payment shall be prescribed by Presidential Decree.

Enforcement Decree of the National Pension Act

Article 43-2 (Assessment Standard for Maintenance of Livelihood in Persons Eligible for Survivor Pension)

The criteria for recognition of persons whose livelihood depended on persons who are or were eligible for the survivors’ benefits under Article 63 (1) of the Act shall be as shown in Table 2 according to the persons eligible for the survivors’ benefits.

[Attachment 2] Criteria for recognition of persons who maintain their livelihood by beneficiary or subscriber, etc.

(Related to Articles 36, 37-2, 43-2, and 45-2)

3. Grounds for requesting an adjudication on unconstitutionality;

A person shall be appointed.

A. The premise of the judgment

Whether the proviso of Article 63 (1) 1 of the National Pension Act (hereinafter referred to as "the legal provision of this case") is in violation of the Constitution is the premise of the judgment mentioned above, and the above provision is judged to be in violation of the principle of equality under the Constitution as follows.

(b) Grounds for requesting an adjudication on constitutionality;

The national pension system is a type of social insurance system to provide relief for the stabilization of the livelihood and the promotion of the welfare of the people by providing pension benefits for old-age disability or death (Article 1 of the National Pension Act). The types of benefits under the National Pension Act include a lump sum refund returning a certain amount of pension contributions to persons who fall short of the requirements for old-age pension, disability pension, survivor pension, survivor pension, and pension, and a middle-aged person who failed to meet the requirements for pension. The finance of the national pension is the primary source of pension contributions collected from the insured and employers, and thus, the right to receive pension under the National Pension Act is a social fundamental right.

The right to receive social security benefit has the character of property right at the same time.

However, according to the legal provisions of this case, the spouse who was or was an insured person at the time of the death of a person who was or was an insured person of the National Pension has the right to receive the survivor pension as a bereaved family member. However, if the spouse who is a bereaved family member is the husband ( husband), it is limited to the spouse who is not entitled to the survivor pension unless he is 60 years of age or is the husband, or

First, the legal provision of this case is deemed to be in violation of Article 11(1) of the Constitution providing that “All citizens shall be equal before the law, and no person shall be discriminated against in political, economic, social, and cultural life due to gender, religion, or social status.” On the date of the increase, the perception of family functions or the allocation of roles of family members in our society is very significant.

Not only changed but also the form of family has changed rapidly. Also, even if our past family system is our past family system, it can be said that social consensus has been reached to the effect that the system against individual dignity and gender equality under the Constitution cannot no longer be maintained. Considering such a trend of situation, the legal provision of this case is to discriminate against the entitlement to social security benefits by gender on the basis of a fixed concept on the role of gender that has been mainly responsible for maintaining the family's livelihood in our society in the past, and it is difficult to regard it as reasonable discrimination because it is difficult to regard it as reasonable discrimination.

Next, the legal provision of this case also violates Article 23(1) of the Constitution that provides that “All citizens’ property rights shall be guaranteed.” The right to receive a survivor pension under the National Pension Act is the main source of the pension collected from the insured, and the survivor pension received by the spouse, etc. due to the characteristics of the family relationship with strong ties and support between the family members is ordinarily used for other ties, a member of the family community. The legal provision of this case is not only to restrict the spouse’s right to receive a survivor pension who has been living at the time of the insured’s death, but also to restrict the husband’s spouse’s entitlement to receive a survivor pension that has been living at the time of the insured’s death, and it is reasonable to deem that it violates the excessive prohibition doctrine.

4. Conclusion

Thus, since the legal provision of this case is not only the premise of the judgment on the merits of this case, but also there are considerable grounds to recognize it as unconstitutional, it shall be decided as per the order.

Judges of the presiding judge

Judges

Judges