In a case where a death report is filed with the confirmation document prepared to the effect that a soldier, etc. missing in the course of combat or military operations was killed on the date of his/her arbitrary designation without any objective grounds to regard such death as specifically ascertaining or having died, whether the presumption of the part on the date of death is recognized (negative in principle)

The presumption of the facts stated in the family relations register shall be presumed to correspond to the truth. However, where there is any evidence contrary to the statement or there is a special reason to deem that the statement is not true, the presumption may be reversed. A medical certificate or death certificate may be attached, but where it is impossible to obtain it due to unavoidable circumstances, it may be substituted by a document proving the fact of death (Article 84(3) of the Act on the Registration, etc. of Family Relationship), and where a soldier died in combat action or other incident and is in the name of the commander of a military unit, etc., he/she may constitute the above proof document. However, where his/her death or death is unknown due to his/her failure to return to work while performing special duties prescribed in the Act on the Compensation for Persons who performed Special Military Missions, the death certificate prepared by the commander of a military unit at his/her discretion designating a date on which the death report was filed cannot be deemed to constitute a document attached to the death report, barring special circumstances. Therefore, where the death certificate was registered on the date of death report issued as a reason for the death report, the presumption can not be maintained.

Article 84(3) of the Act on the Registration, etc. of Family Relationship

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

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

The Minister of National Defense

Seoul High Court Decision 2010Nu3482 decided May 19, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Matters entered in the family relations register shall be presumed to be true. However, when there are special circumstances to deem that there exists evidence contrary to the statement or that the statement is not true, the presumption may be reversed (see, e.g., Supreme Court Decision 94Da1883, Jun. 10, 1994). A death report shall be accompanied by a medical certificate or a death certificate, but where it is impossible to obtain it due to unavoidable circumstances, it may be substituted by a document proving the death (Article 84(3) of the Family Relationship Registration Act), and a death certificate prepared in the name of the commander, etc. due to a soldier’s death due to combat or other accidents, etc. may constitute the above proof document. However, with respect to a soldier, etc., who was missing in the course of combat or military operations as prescribed in the Act on the Compensation for Persons who performed Special Military missions, such a death certificate cannot be deemed to constitute a written confirmation attached to the death report, unless there is any special circumstance to the effect that the commander voluntarily designated the death report on the date and executed.

Meanwhile, Article 26(1)1 of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter the same) provides that a survivor pension shall be paid at the time of death of a person who is or was a soldier who has the right to receive a survivor pension. Accordingly, the right to receive a survivor pension shall be established at the time of death of a person entitled to a survivor pension and may be exercised at that time (see Supreme Court Decision 97Nu20908, Mar. 10, 1998). Article 8(1) main text of the same Act provides that “The right to receive benefits shall lapse by the prescription if the right to receive benefits is not exercised for five years from the date on which the cause for the benefits occurred.”

2. The reasoning of the lower judgment and the evidence admitted by the lower court reveal the following facts.

A. Nonparty 1, the husband of the Plaintiff, retired from office under the mid-1969 and received a retirement pension under the Military Pension Act. At the time, Nonparty 1, the husband of the Plaintiff, was employed in the Central Information Department of Information and carried out a special mission under the jurisdiction of the National Armed Forces ○○○○ unit. On November 1, 1972, Nonparty 1, the husband of the Plaintiff, was dispatched to North Korea, and did not return

B. The Defendant did not ask Nonparty 1’s family members, including the Plaintiff, to confirm whether he/she died or not until 40 years have passed since Nonparty 1 was dispatched to North Korea, and paid a retirement pension to Nonparty 1 by January 29, 2009 on the premise of survival.

C. On May 3, 2005, the National Intelligence Service decided to the effect that Nonparty 1 was in a long-term contact interruption and unclaimed situation after dispatching the North Korea on November 1, 1972 following the dispatch of the special mission to North Korea, pursuant to Articles 4 and 5 of the Guidelines for the Treatment of Missing Persons, the National Armed Forces No. ○○○○ Military Unit (established on June 1, 2003), “Nonindicted 1 was killed in the Dong District on July 8, 1976,” and notified Nonparty 2 of the fact verbally on July 5, 2005.

D. The foregoing guidelines were established with a view to fulfilling the legal requirements for compensation for persons who performed special military missions. The provisions of Article 4 on the resolution of death stipulate that the surviving families of the members of the members of the members of the members of the members of the members of the members of the members of the members of the bereaved family shall be deceased at the time of filing a civil petition, and the provisions on the legal fiction of the date and time of death Article 5 stipulate that the “the date of completion of the project” shall be “the date of the

E. On January 29, 2009, the head of the ○○○○ unit issued to Nonparty 2 a certificate of killed in action, stating that “Nonindicted 1 was killed in action in the Eastern District on July 8, 1976 during the performance of special duties.” Nonparty 2 submitted it to the head of the Suwon-si Branch on the following day and reported the death of Nonparty 1. Accordingly, Nonparty 1 was registered as deceased in the family relations register on July 8, 1976.

F. Around February 2009, the Plaintiff filed a claim with the Defendant for the payment of the survivor pension under the Military Pension Act, but the Defendant rendered a decision on April 16, 2009 on the payment of 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”).

3. The court below acknowledged the above facts, but held that, in light of the duties performed by Nonparty 1, the time and period of contact, the circumstances leading up to the National Intelligence Service’s resolution of death, the issuance of a certificate of death in action and the bereaved family’s death report, and the fact that such certificate of death in action was accepted in writing to prove the death, the non-party 1 was presumed to have died in the Dong District Register on July 8, 1976, as in the family relations register, and that the above presumption of death was not broken down unless there is any evidence proving that the certificate of death in action, which is the basis document for the above report, was forged or falsified, or that the non-party 1 still remains alive. Accordingly, the court below rejected the Plaintiff’s claim for revocation of the instant disposition on the ground that the Plaintiff’s entitlement to survivor pension under the Military Pension Act extinguished by the completion of the statute of limitations on July 8, 1981 after five years from the date of death of Nonparty 1.

4. However, in light of the above legal principles, we cannot agree with the above judgment of the court below.

A. First of all, the National Intelligence Service’s resolution of May 3, 2005 on death on the death of Nonparty 1 does not require the National Intelligence Service to verify the death of Nonparty 1 differently, and there are no special circumstances such as the existence of reasonable grounds to deem the death of Nonparty 1 to be certain under social norms. However, even though Nonparty 1 was dispatched to North Korea on November 1, 1972 for a long time after the dispatch of the special mission to North Korea, the National Armed Forces’s internal guidelines on the death of Nonparty 1, the so-called “date of completion of business” which was scheduled within the military unit pursuant to the internal guidelines of the National Armed Forces’s ○○○○○○○○ unit, was arbitrarily determined as the date of death, and the certificate of death was issued based on such a resolution. As long as no other data exist to know the death of Nonparty 1 and the time of death, presumption that the registration related to the registration of the family relation register under the above death cannot be maintained.

B. However, according to the records, the Plaintiff and the Defendant seem to have recognized all of the facts of death while disputing the date of death of Nonparty 1 until the original judgment. In other words, the Plaintiff filed an application for a survivor pension from January 30, 2009 on the premise that Nonparty 1 died, and the Defendant also claims the extinction of the statute of limitations for the entitlement to a survivor pension on the premise that Nonparty 1 died before January 30, 2009. As such, insofar as there is no dispute between the parties on the death before January 30, 2009, it is reasonable to deem that Nonparty 1, a beneficiary of a survivor pension, has already acquired the entitlement to a survivor pension before the Plaintiff’s death, at least before the death.

C. Meanwhile, in order to have the Plaintiff’s right to receive the above survivor pension extinguished by prescription, the Defendant’s assertion and burden of proof as to the starting point of the extinctive prescription should prove that five years have elapsed from the date of the occurrence of the grounds for the payment of survivor benefits as of January 30, 2009, i.e., the date of the death of Nonparty 1. However, as seen earlier, the part on the date of death in the above family relations register cannot be acknowledged, and as such, the Defendant did not prove the fact that Nonparty 1 died before five years prior to the date of death, based on other evidence, as long as the Defendant did not prove the fact that Nonparty 1 died by counting from January 30, 2009 when the Plaintiff exercised the right to receive the survivor pension.

Therefore, for reasons indicated in its holding, the court below erred by misapprehending the legal principles on presumption of the family relations register and the extinctive prescription of the entitlement to a survivor pension, which affected the conclusion of the judgment, and failing to exhaust all necessary deliberations. The ground of appeal assigning this error is with merit.

In addition, the State may impose an unreasonable burden on persons who performed special military missions, whose life or death is unknown, such as continuing to pay a retirement pension, but it may take measures pursuant to Article 19-2 of the Military Pension Act, which allows the beneficiary of a retirement pension to pay the amount of the retirement pension after the lapse of three years, to the extent equivalent to the amount of the retirement pension. Furthermore, it is possible to cope with the claim for adjudication of disappearance in accordance with the Civil Act. As such, it shall be applied from the date on which the initial date of the extinctive prescription is confirmed and it shall not be deemed to be contrary to the legislative intent of the Military Pension Act.

5. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)