Plaintiff (Law Firm Dongdong, Attorneys Park Jong-young, Counsel for the plaintiff-appellant)

The Minister of National Defense

July 16, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of site payment of survivor pension against the plaintiff on March 19, 2009 shall be revoked.

1. Details of the disposition;

A. Disasterr: The deceased non-party 2 (the date of birth omitted; hereinafter referred to as "the deceased"), who is the husband of the Plaintiff;

(b) Occupational relations: Death on October 31, 1981 from among those serving in the Army as First Lieutenant, who was discharged from active service or paid a retirement pension on October 31, 1981;

C. Defendant’s disposition of land payment for survivor pension (hereinafter “instant disposition”).

(1) Date of disposal: March 19, 2009

(2) Grounds for disposition

(A) The Plaintiff is the deceased’s spouse who retired and married after the age of 61.

(B) The Plaintiff does not constitute a person in a de facto marital relationship with the Deceased.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap 1, 2, 5, and 12, and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff, a spouse who was in a de facto marital relationship with the Deceased from April 1979, much more than 61 years old, was supported by the Deceased at the time of his death.

(2) On the other hand, the legal divorce between the deceased and Nonparty 1, who is the former wife, was not only a divorce report prior to 1979, but also a de facto marriage was annulled.

(3) The Plaintiff and the Deceased’s de facto marriage shall be legally protected, and the Plaintiff is a beneficiary of a survivor’s pension under the Military Pension Act. Therefore, the instant disposition made on a different premise is unlawful.

B. Relevant statutes

◆ 군인연금법

Article 3 (Definitions)

(1) The definitions of terms used in this Act shall be as follows:

4. the term “bereaved family member(s)” means the following persons who are supported by a soldier or a veteran at the time of his death (it is not possible whether or not the soldier or the veteran has supported the disaster compensation as prescribed in Article 31):

(a) A spouse (including a person who was in a de facto marital relationship, but excluding a spouse who was married after the age of 61 after retirement);

(c) Fact of recognition;

(1) The deceased’s legal confusion relationship

(A) On April 28, 1962, the report of marriage with Nonparty 1 is completed.

(B) On February 10, 1962, Nonparty 3, Nonparty 4, and Nonparty 5 born around March 16, 1964

(C) On December 4, 1996, the non-party 1 died to resolve the marriage relationship ( approximately 60 years of age and 2 months of age, the net).

(2) The relationship between the Plaintiff and the Deceased

(A) Commencement of teaching programs with the Deceased who was the father of his school while the Plaintiff was in high school.

(B) On February 19, 1980, Nonparty 6, and Nonparty 7 on February 21, 1982

(C) On April 15, 1998, upon reporting the marriage with the Plaintiff, the deceased was aware of Nonparty 6 and 7.

(Badic 61 years of age and 6 months of age)

(D) Deceased on June 30, 2008

(3) Living together with the Plaintiff and the Deceased

(A) Resident registration status

○ On December 4, 1996, the death of Nonparty 1 (the deceased 60 years of age 2)

Since the deceased transferred to the same domicile as Nonparty 1 on May 21, 1976 as a career soldier, the deceased was registered as a resident at the same domicile as Nonparty 1 on September 7, 1997 (the deceased’s 60 years of age 9) after the death of Nonparty 1.

After the death of the ○ non-party 1: from May 11, 1998 (the 61 year old and 7 months), the moving-in report was made to the same address.

본문내 포함된 표 주소지 망인 원고 전입일 퇴거일 전입일 퇴거일 부천시 오정구 고강동 (상세주소 1 생략)(이하‘제1주소지’) 1997. 9. 8. 1998. 5. 26. 1998. 5. 11. 1998. 5. 26. 오정구 원종동 (상세주소 3 생략) 1998. 5. 27. 2006. 10. 22. 1988. 5. 16. 1998. 5. 10. 2006. 10. 30. 2007. 8. 29. 1998. 5. 27. 2006. 10. 22. 2006. 10. 30. 2007. 8. 29. 오정구 원종동 (상세주소 4 생략) 2006. 10. 23. 2006. 10. 29. 2006. 10. 23. 2006. 10. 29. 오정구 고강동 (상세주소 2 생략) (이하 ‘제2주소지’) 2007. 8. 30. ？ 2007. 8. 30. ？

(B) After discharge on October 31, 1981, the Deceased operated the Taekwondo Domna with the Plaintiff and Nonparty 6 and 7, from August 6, 1988 to August 8, 2005 under the understanding of the family members of this family, and from August 9, 2005 to August 2, 2005, the Deceased operated the Taekwondo Domna with the trade name “○○○ Sports Center” with the Plaintiff.

【Ground of recognition】 The fact that there is no dispute, Gap 3, 4, Gap 6 through 11, Gap 13 through 16 (including each number), the testimony of non-party 8, and the purport of the whole pleadings

D. Determination

(1) A de facto marital relationship between the Plaintiff and the Deceased

(A) Article 3(1)4(a) of the Military Pension Act includes “a person who was in a de facto marital relationship” with “spouse as a bereaved family member entitled to the survivor pension,” but excludes “a spouse who was married after the age of 61 after retirement.” Here, “a person who was in a de facto marital relationship” refers to the case where the parties are subjectively “contributing the intention of marriage” and “a person who was in a de facto marital relationship” has objective “a substance of marital life that may be recognized as a father-child community life

(B) According to the facts found earlier, the Plaintiff appears to have maintained the marital relationship with the Deceased since around 1979, and since around 1980, by giving birth to two children and by living together while operating the Taekwondodo together. Thus, it is deemed that the Plaintiff had maintained the marital relationship with the Deceased before the Deceased becomes the age of 61 ( October 7, 1997). Thus, it is deemed that the Plaintiff had already entered into a de facto marital relationship with the Deceased and maintained it until he died.

(2) A de facto marital relationship

(A) Legal principles

○ The purport of the Military Pension Act’s “spouse in de facto marital relations” also lies in protecting a spouse in cases where it is not recognized as a legally marital relationship due to the absence of a report of marriage, even though it has the substance of marriage through marital life.

However, in a case where there is a legal spouse, other than the spouse, in fact, if there is a separate spouse from the legal spouse, barring special circumstances such as the existence of legal divorce only formally and the de facto marital relationship is annulled and the legal divorce has occurred, the spouse has the right to receive pension as a bereaved family, and the spouse cannot be protected as a bereaved family under the above law (see Supreme Court Decision 93Nu1497 delivered on July 27, 1993).

The phrase “special circumstance” referred to in this context refers to the de facto divorce status, and under the Korean legal system where the so-called “ de facto divorce” in which marriage and divorce are established by a report, it is necessary to say that there is an agreement on divorce (including an agreement to report divorce) between the spouse and the spouse in addition to the fact that there is no substance of common life of the married couple objectively in order to determine “ de facto divorce.”

○ Even though a legal spouse’s legal spouse is in a state of existence of a legal marriage and a de facto marital relationship for a considerable period of time without explicitly raising an objection to the legal marriage (a request to terminate a de facto marriage) or demanding termination of a legal marriage even though he/she knows the de facto marital relationship of the other spouse, insofar as the agreement on divorce between the legal spouse to resolve the legal marriage is not acknowledged explicitly and explicitly and implicitly, the legal divorce relationship shall not be readily concluded as a de facto divorce. If there is so-called “ de facto de facto marital relationship” in which the legal marriage and a de facto marital relationship are in existence, then the de facto marital relationship should be exceptionally protected under the “legal divorce” and the “Prohibition of Big” doctrine, which results in unfair outcomes that the de facto marital relationship is obtained superior status by nullifying the legal marriage into “ de facto divorce status.”

(B) Whether the legal relationship between the plaintiff and the non-party 1 was de facto terminated

Comprehensively taking account of the facts acknowledged earlier and the following all the circumstances revealed in the proceedings of the instant case, it cannot be deemed that the marital relationship between the deceased and the non-party 1 was “the state of de facto dissolution” until the death of the non-party 1.

Although the deceased transferred his resident registration several times for more than 21 years from May 21, 1976 to September 7, 1997 after the death of Nonparty 1, who was legally married with Nonparty 1, the deceased transferred his resident registration to Nonparty 1, but he completed the move-in report with his spouse who is in the same household with Nonparty 1 every time.

○ During that period, there is no evidence to acknowledge that there was a de facto divorce status with Nonparty 1 because, even though the Deceased was living together with Nonparty 1 and did not have a marital life, the Deceased did not have any duty to support with Nonparty 1 or his children.

In light of the fact that ○○ was in fact in a marital relationship with the Plaintiff and the two children were given birth, but the deceased did not arrange the family register with Nonparty 1 for about 18 years, it is presumed that there was little intention to terminate the legal relationship with Nonparty 1.

○ Even if the deceased unilaterally intended to resolve the legal relationship with Nonparty 1, there is no evidence to acknowledge that Nonparty 1, the spouse, had the intent to resolve the legal relationship with the deceased. Thus, it cannot be deemed that there was an agreement between the deceased and Nonparty 1 to resolve the legal relationship with the deceased explicitly and implicitly.

(C) Whether the Plaintiff constitutes a bereaved family member of the deceased under the Military Pension Act

The marital relationship between the plaintiff and the deceased is nothing more than a de facto marital relationship, and the plaintiff does not constitute a spouse who was in a de facto marital relationship protected under the Military Pension Act.

The plaintiff asserts that even though the previous de facto marital relationship was a de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto marriage with the deceased was de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto, from December 4, 19

○ However, the principle that “A de facto marital marriage shall not be protected unless a de facto divorce is in fact.” It should be applied not only to cases where a spouse has the right to receive a survivor pension under the Military Pension Act if a legal divorce and a de facto marital marriage exist at the time of death of a soldier, etc., but also to cases where a spouse has determined whether a spouse satisfies the requirements for bereaved family under the Military Pension Act (pre-age 61 years of age of the deceased).

If there is a separate legal spouse to receive a pension (i.e., whether there is a conflict of the right to receive a pension) from a person who has continued an illegal marital relationship due to de facto marriage depending on whether or not there is another legal spouse to receive the actual survivor pension (i.e., whether there is a conflict of the right to receive a pension), this differs from the legal protection depending on the contingency that the time of death of the deceased and the time of divorce between the legal spouse is the time of the divorce. As a result, the purport of the provisions of the Military Pension Act that allows only a spouse meeting certain requirements prescribed by the Act to pay a survivor pension, the purport and equity of the Military Pension Act that allows a majority of soldiers to receive a survivor pension, and the military pension system operated with contributions from the National Treasury, and the family order in

(D) Sub-determination: The defendant's disposition of this case based on the premise that the plaintiff is not a beneficiary of the survivor pension of this case is legitimate.

3. Conclusion

The plaintiff's claim of this case is dismissed as there is no reasonable ground.

Judges Cho Sung-sung(Presiding Judge) (Presiding Judge)