In a case where a minor sibling who has a mental disorder beyond living ability becomes adult, the purport of Article 12 (2) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State, which provides for "in the case of a minor sibling who has a mental disorder beyond living ability, becomes adult or has no lineal ascendant or punishment after he/she has become adult, whether the sibling becomes a minor sibling who has a mental disorder beyond living ability and has no minor male sibling who is subject to the payment of pension due to the reason that he/she has a lineal ascendant or has a punishment for an adult male under Article 12 (2) of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State who are entitled to the payment of pension

Article 5(1) of the former Act on Persons of Distinguished Services to the State (amended by Act No. 4457 of Dec. 27, 191) provides that the scope of bereaved family members of persons of distinguished services to the State shall be prescribed by subparagraphs 1 through 5. Article 5 provides that "any male or female lineal ascendant under 60 years of age and under 55 years of age shall be the order of bereaved family members who shall receive pensions under Article 13." Article 12(1) provides that "any child among bereaved family members falling under paragraph (1) 2 of the same Article shall be the minor child." Article 5 of the former Act provides that "any adult male or female lineal ascendant under 5 years of age shall be the same as those of bereaved family members of the same Act, who are under 5 years of age, shall be the same as those of bereaved family members of the same age." Article 5 of the former Act provides that "any female under 15 years of age shall be the same as those of bereaved family members of the same age who are under 5 years of age."

Articles 5 (1) 5 (see current Article 5 (1) 5), 12 (2) (see current Article 12 (2) of the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State) and 13 (see current Article 13 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State, and Articles 5 (1) 5, 12, and 13 of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State (Amended by Act No. 6339, Dec. 30, 200)

Plaintiff

The Commissioner of Busan Regional Veterans Administration

Busan High Court Decision 99Nu2925 delivered on January 14, 2000

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

Article 5 (1) of the former Act on the Honorable Treatment of Persons of Distinguished Service to the State (amended by Act No. 4457 of Dec. 27, 191) provides for the scope of bereaved family members of persons of distinguished service to the State (hereinafter referred to as "bereaved family members") under subparagraphs 1 through 5. Article 5 provides for "a male under 60 years of age and a female lineal ascendant under 55 years of age and a minor sibling who has no adult male and female sibling punishment." Article 13 provides for the priority of bereaved family members entitled to receive pensions. Article 12 (1) provides for the priority of pension benefits for bereaved family members of persons of distinguished service to the State (Article 12 (1) (Article 1) and bereaved family members of the soldiers and policemen killed in action (Article 12 (1) 2). Article 5 (2) provides for a child among bereaved family members falling under subparagraph 2 of the same paragraph shall be paid in the same manner as a minor child is still subject to the suspension of pension benefits."

Therefore, if a minor sibling who has a mental disorder incapable of supporting himself/herself does not fall under the bereaved family member eligible for pension due to reasons such as that he/she has a male under 60 years of age or a female sibling under 55 years of age or has a sentence on the adult male, he/she shall not be deemed to fall under the category of "a male under 60 years of age and a female sibling under 55 years of age, and a minor sibling without an adult male and a minor sibling who has no adult male and female under 55 years of age," and in this case, Articles 13 and 12 (1) of the former Act on Persons Eligible for Pension shall not apply, and thereafter, Articles 5 (1) 5, 12, and 13 of the Act on the Honorable Treatment of and Support for Persons of Distinguished Services to the State (amended by Act No. 639 of Dec. 30, 200).

According to the court of first instance cited by the court below, the plaintiff's assertion that the non-party 1 and the non-party 2's mother as the deceased on February 2, 1994 and the non-party 1 and the non-party 2's mother as the bereaved family of the non-party 1 and the non-party 2's mother as the deceased on February 2, 1994, and the plaintiff's minor sibling who has a disability to the extent that he has no ability to live" constitutes the bereaved family of this case is a bereaved family of this case. The plaintiff is not only the adult (1 omitted on July 31, 1998, the date of application for the registration of bereaved family of this case, but also the non-party 4 (2 omitted on July 5, 198, and the plaintiff is "the non-party 4 (the non-party 5) who is a male male and female woman of this case, who is a minor of this case, and the non-party 5 (55) of the former Act does not apply.

However, the plaintiff consistently registered as a bereaved family member on June 27, 1988, and after the non-party 3 died, the plaintiff's refusal to pay pension was alleged to be illegal. Thus, the court below should first determine whether there was a fact of bereaved family registration as alleged by the plaintiff, but it is inappropriate to determine whether there was a fact of bereaved family registration. However, the evidence submitted by the plaintiff cannot be viewed as having been registered as a bereaved family member before the non-party 3's death, and there is no other evidence to support it. Further, the court below rejected the plaintiff's assertion that the plaintiff was registered as a bereaved family member on July 22, 1989. According to the records, the plaintiff's assertion that the plaintiff was registered as a bereaved family member on June 27, 1988 cannot be viewed as having been registered as a bereaved family member at that time. Thus, the plaintiff's assertion that the plaintiff was registered as a bereaved family member on June 27, 198.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)