Plaintiff (Law Firm Tae, Attorneys Han-soo et al., Counsel for the plaintiff-appellant)

The Minister of National Defense

April 21, 201

Seoul Administrative Court Decision 2009Guhap15609 Decided December 24, 2009

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

The judgment that the defendant revoked the decision to recover the retirement pension and the decision to pay the survivor pension site to the plaintiff on April 16, 2009 respectively.

2. Purport of appeal

In the judgment of the court of first instance, the part against the plaintiff among the judgment of the court of first instance that the defendant revoked the decision on the site payment of the survivor pension that the defendant lost against the plaintiff on April 16, 2009 (the court of first instance accepted the cancellation of the decision on the recovery of the retirement pension among the claims stated in the plaintiff's above purport of the claim and dismissed the cancellation of the decision on the site payment of the survivor pension, and only the plaintiff appealed on the part against the loss

1. Details of the disposition;

A. The non-party 1 (the husband of January 13, 1926), who was the plaintiff's husband, retired from office under the mid-1969 and received a retirement pension under the Military Pension Act, was employed in the Central Information Department and performed a special mission under the Armed Forces's ○○○ unit. On November 1, 1972, the non-party 1, who was the plaintiff's husband, was dispatched to North Korea for a long time.

B. The NIS decided on May 3, 2005 pursuant to Articles 4 and 5 of the Guidelines for the Treatment of Disappearance of Military Units (amended by June 1, 2003) with the following contents, which was enacted for the purpose of fulfilling the legal requirements for compensation for persons who performed special military missions, and then notified Nonparty 2, the south of Nonparty 1, the Republic of Korea, of the result of the decision on July 5, 2005.

Article 4 (Resolution of Death):Decision of the deceased of a missing member of the deceased on the ground of a civil petition filed by his/her surviving family member of the deceased on the ground of his/her death

Article 5 (Constructive Date and Time of Death): Resolution on the End of the Project as of the Date of Death

C. On January 29, 2009, the head of the ○○○○ unit issued to Nonparty 2 a written confirmation of the accident that “Nonindicted 1 was killed in the Eastern District on July 8, 1976 during the performance of special duties,” and Nonparty 2 submitted it to the head of the Suwon-si branch office on the following day and reported the death of Nonparty 1. Accordingly, Nonparty 1 entered Nonparty 1 in the family relation register of Nonparty 1 as deceased in the Eastern District on July 8, 1976.

D. Around February 2009, the Plaintiff filed a claim with the Defendant for the payment of the survivor pension under the Military Pension Act. However, on April 16, 2009, the Defendant notified the Defendant of the decision not to pay the survivor pension on the ground that “the extinctive prescription of the entitlement to the survivor pension has expired since Nonparty 1 died on July 8, 1976” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The plaintiff asserts that if the non-party 1 died in around 1976 while performing a special duty, the defendant should immediately be notified of such fact to the non-party 1's bereaved family members including the plaintiff (hereinafter "the plaintiff, etc.") and should have the plaintiff, etc. apply for the survivor's pension, etc., but he paid the retirement pension to the plaintiff, etc. under the premise that the non-party 1 is alive, and it should be paid to the non-party 1, etc. on May 3, 2005, the plaintiff, etc.'s civil petition filing of the non-party 1's death and defense of the expiration of the extinctive prescription regarding the plaintiff's entitlement to the survivor's survivor's pension after the non-party 1's death

In this regard, the defendant paid a retirement pension more than the survivor pension that could have been paid to the plaintiff, etc., and decided the death of the non-party 1, and paid the plaintiff, etc. the compensation under the Act on the Compensation for Persons who performed Special Military Missions. Thus, the defendant's defense of the completion of the extinctive prescription cannot be

(b) Related statutes;

▣ 구 군인연금법(1994. 1. 5. 법률 제4705호로 개정되기 전의 것, 이하 ‘구 군인연금법’)

Article 6 (Kinds of Benefits)

The kinds of benefits shall be as follows:

7. Survivors' pension.

Article 8 (Prescription)

(1) The right to receive benefits shall be extinguished by prescription if it is not exercised within five years after the cause for such benefits occurred.

Article 10 (Confirmation of Grounds for Payment and Recognition of Benefits)

The Minister of National Defense shall recognize the right to receive benefits as requested by a person who has the right to receive benefits upon confirmation by the Chief of Staff of the service to which the relevant soldier belonged: Provided, That the right to lump sum payment on retirement, lump sum payment on bereaved family and

Article 26 (Survivor's Pension)

(1) If a person who is or was a soldier falls under any of the following subparagraphs, his/her bereaved family members shall be paid a survivor pension:

1. Where the person who has the right to receive a retirement pension dies;

C. Determination

1) Whether Nonparty 1 died or not and the time of death

가족관계등록부의 기재사항은 이를 번복할 만한 명백한 반증이 없는 한 진실에 부합하는 것으로 추정되고, 특히 가족관계등록부의 사망기재는 쉽게 번복할 수 있게 해서는 안 되며, 그 기재내용을 뒤집기 위해서는 사망신고 당시에 첨부된 서류들이 위조 또는 허위조작된 문서임이 증명되거나 신고인이 공정증서원본불실기재죄로 처단되었거나 또는 사망으로 기재된 본인이 현재 생존해 있다는 사실이 증명되고 있을 때, 또는 이에 준하는 사유가 있을 때 등에 한해서 가족관계등록부의 사망기재의 추정력을 뒤집을 수 있을 뿐이고, 그러한 정도에 미치지 못한 경우에는 그 추정력을 깰 수 없다( 대법원 1995. 7. 5.자 94스26 결정 , 대법원 1997. 11. 27.자 97스4 결정 등 참조).

In light of the health team, as recognized earlier, the duties performed by Nonparty 1, the timing and period of contact, the circumstances leading up to the National Intelligence Service’s resolution of death, the issuance of a written confirmation of death by the National Intelligence Service, the report of death by bereaved family members, and the fact that such written confirmation of death (Evidence A) was accepted in writing to prove the fact of death, and that the date and place of death were recorded in the family relations register, it is presumed that Nonparty 1 died in the Dongbu District on July 8, 1976, such as the statement of death in the family relations register. Thus, the above presumption is not broken unless there is any evidence to prove that the written confirmation of death, which is the basis document for the report, was forged or falsified, or that Nonparty 1 still remains alive.

2) Whether the extinctive prescription of entitlement to a survivor pension expires

Article 8(1) of the former Military Pension Act provides that "the right to receive benefits shall be extinguished by the prescription if it is not exercised for five years from the date on which the ground for the payment of benefits occurred." According to the provisions of Articles 6, 10, and 26(1)1 of the same Act, a survivor pension shall have the right to receive benefits at the time of death of the person who has the right to receive a survivor pension as a kind of benefit, and the bereaved family shall immediately exercise the right to receive the survivor pension after the procedure for recognition by the relevant agency. Thus, the extinctive prescription of the right to receive the survivor pension under the former Military Pension Act shall proceed from the "when the person who has the right to receive the survivor pension dies" (see Supreme Court Decision 2007Du18314, Aug. 21, 2008).

As to the instant case, it was acknowledged that Nonparty 1 received a retirement pension and died on July 8, 1976, the Plaintiff’s entitlement to a survivor pension under the Military Pension Act was terminated by the completion of the statute of limitations on July 8, 1981 after five years from the date of death of Nonparty 1.

3) Whether the defendant's defense for the completion of extinctive prescription constitutes abuse of rights

The exercise of the obligor’s right of defense based on the statute of limitations is also governed by the principle of good faith and prohibition of abuse of rights, which are the major principles of our civil law. As such, in special circumstances where the obligor acted to make it impossible or considerably difficult for the obligee to exercise the obligee’s right or to cancel the statute of limitations prior to the expiration of the statute of limitations, or where the obligee has objectively obstructed the obligee from exercising his right, or the obligor has failed to invoke the statute of limitations after the expiration of the statute of limitations, or where there exist special circumstances, such as making the obligee trust or making the obligee not to invoke the statute of limitations, or where the obligor has already received the repayment of the obligation, which is highly necessary to protect the obligee, the obligor’s refusal to enforce the statute of limitations may not be allowed to assert the completion of the statute of limitations as an abuse of rights against the principle of good faith. However, in order for the State to constitute abuse of rights against the principle of good faith, special circumstances should be acknowledged, and the application of the general principle of operation of the statute of limitations to 2004 should be excluded.

In this case, as acknowledged earlier, although the contact was interrupted after Non-party 1 was removed from North Korea on November 1, 1972, the defendant did not inform the plaintiff et al. of his death or paid retirement pension on the premise of his survival until the plaintiff et al. filed a civil petition on May 3, 2005, and notified the non-party 1 of the same fact. However, it was difficult to conclude that the non-party 1 died immediately even if the communication was cut for a long time, in light of the situation at the time of the time and the nature of the defendant's work, it was not easy for the non-party 1 to immediately inform the plaintiff et al. of his death or to pay the retirement pension on the premise of his survival, and the plaintiff et al. notified the plaintiff et al. of the fact that the non-party 1 was deceased and the non-party 2 was not the plaintiff et al.'s death before the expiration of the period of 305 years' retirement pension.

4) Sub-determination

Therefore, the instant disposition based on the premise that the statute of limitations for the Plaintiff’s survivor pension expired is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case belonging to the scope of the judgment of this court is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and it is so decided as per Disposition.

Judges Yan Jung-hun (Presiding Judge)