In a case where Gap, while he was employed as a soldier, divorced between Eul and his excessive marital relationship, was divorced and divorced again, and died after he married to Eul, Eul demanded the payment of the survivor pension under the Military Pension Act as Eul's spouse, but Gap requested the payment of the survivor pension under the Military Pension Act on the ground that his spouse who was married after 61 years of age does not fall under the bereaved family under the Military Pension Act, the case affirming the judgment of the court below that Eul does not fall under the bereaved family under Article 3 (1) 4 (a) of the above Act.

The case affirming the judgment below holding that in a case where Gap, a spouse of Article 3 (1) 4 (a) of the above Act, in light of the provisions and purport of the relevant Acts and subordinate statutes, shall be deemed to mean the entire spouse married after age 61, regardless of whether the spouse of Article 3 (1) 4 (a) of the above Act has a marital relationship with Eul, and even if Gap had a de facto marital relationship with Eul prior to his age 61, it cannot be deemed that it constitutes " de facto marital relationship" under Article 3 (1) 4 (a) of the above Act, since Eul had a legal marital relationship with Eul during the period of 61 years of age, and Eul filed a claim for the payment of survivor's pension under the Military Pension Act following the death of Eul as Eul's spouse, but Gap was married after his age 69, but Gap was decided to pay the survivor's pension on the ground that he does not constitute a bereaved family under Article 3 (1) 4 (a) of the above Act.

Article 3(1)4(a) of the Military Pension Act

Plaintiff (Law Firm Geosan, Attorneys Lee Sung-sil et al., Counsel for plaintiff-appellant)

The Minister of National Defense

Seoul High Court Decision 2010Nu9824 decided November 5, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. A. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence, and determined as follows: (a) according to Article 26(1)1 of the Military Pension Act, the survivor’s pension is paid to the bereaved family members when the person entitled to receive the retirement pension dies; and (b) according to Article 3(1)4(a) of the same Act, the bereaved family members include the spouse who was supported by the person at the time of the death of the person who was or was a soldier, but is excluded from the spouse who was married after the age of 61; and (c) the Plaintiff was married with the non-party after the retirement of the person who was a soldier after the age of 61.

B. Furthermore, the lower court determined that it is consistent with the language and text of the Military Pension Act that the non-party’s spouse who was a soldier after the non-party’s retirement constituted a marital relationship with the non-party and, in such a case, can be seen as falling under the bereaved family under the above provision. (1) Article 3(1)4(a) of the Military Pension Act only provides that the spouse excluded from the bereaved family shall be “a spouse who was a soldier after the age of 61,” and that the spouse who was a soldier in a marital relationship does not fall under such exclusion. Thus, it is reasonable to interpret that the non-party’s spouse who was a soldier after the age of 61 is not a spouse of the non-party, regardless of whether there was a marital relationship between the non-party and the non-party’s spouse after the non-party’s retirement and the non-party’s spouse’s spouse’s status at the age of 1 after the age of the non-party’s retirement and the need to newly establish a new marital relationship or recovery from the existing spouse’s status after his retirement or injury.

C. In addition, the lower court determined to the effect that the Plaintiff’s de facto marital relationship does not constitute “ de facto marital relationship” under the Military Pension Act, except in exceptional cases where the Plaintiff’s spouse is a de facto spouse, and thus, constitutes a “ de facto marital relationship” under Article 3(1)4 of the Military Pension Act, based on our family law system under which the principle of legal divorce and the prohibition of heavy marriage is considered as Daejeon. The purport of Article 3(1)4 of the Military Pension Act is that the Plaintiff’s de facto marital relationship is included in the spouse entitled to a survivor pension. However, in a case where a marriage is not recognized as a legal marriage due to a de facto marital relationship, the Plaintiff’s de facto marital relationship does not constitute “ de facto marital relationship” under the Military Pension Act, even if there is no de facto marital relationship between the Nonparty and the Nonparty (see Supreme Court Decision 2006Du18584, Feb. 22, 2007; Supreme Court Decision 2006Du18584, Apr. 19, 198).

2. In light of the relevant statutes and records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the interpretation of Article 3(1)4(a) of the Military Pension Act, as otherwise alleged in the grounds of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)