(영문) 서울행정법원 2019.7.4.선고 2018구합90671 판결

1. The Defendant’s disposition of non-approval of the public official pension division claim made against the Plaintiff on October 18, 2018 shall be revoked.

2. The supplementary part of the costs of lawsuit is borne by the Intervenor, and the remainder is borne by the Defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

가. 원고는 2012. 5. 4. 피고보조참가인 ( 이하 ' 참가인 ' ) 과 혼인신고를 하였고, 참가인은 ◆◆◆ 소속 공무원으로 근무하다 퇴직하고 피고로부터 퇴직연금을 수령하고 있다 .

B. On June 19, 2017, the Plaintiff filed a lawsuit seeking divorce and consolation money against the Intervenor (hereinafter “instant divorce lawsuit”). The Plaintiff and the Intervenor drafted a written agreement with the following details around July 2017. (See Table - omitted)

C. On October 11, 2017, the details of the instant agreement between the Plaintiff and the Intervenor in the instant divorce lawsuit

Based on the following mediation (hereinafter referred to as the "Adjustment of this case") was established. (See Table - omitted) On October 16, 2018, the Plaintiff requested the Defendant to pay in installments the public officials pension received by the Intervenor pursuant to Article 45 of the Public Officials Pension Act to the Plaintiff.

E. On October 18, 2018, the Defendant notified the Plaintiff of the non-approval of the claim for the divided pension on the ground that “The Plaintiff renounced the remainder of the claim, and the Plaintiff and the Defendant did not make any claim, such as consolation money, division of property, etc. in relation to the instant case in the future.” (hereinafter “instant disposition”).

[Ground of recognition] A 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. Summary of the parties' assertion

1) Plaintiff

The Plaintiff did not agree on the waiver of the public official pension received by the Intervenor in the instant divorce lawsuit. The Plaintiff stated that the Plaintiff was in fact a purchase-price of KRW 50 million, which was paid by the Defendant due to the instant conciliation, and that “it does not make any claim between the Plaintiff and the Intervenor in order to prevent any dispute between the Plaintiff and the Intervenor” in the instant conciliation, as well as the Defendant and the Intervenor.

In the course of divorce, the Plaintiff agreed that the Plaintiff and the Intervenor transfer the ownership of the apartment in the name of the Plaintiff between the Intervenor and paid KRW 50 million to the Intervenor, and did not claim a division of property any longer. The instant protocol stated that the Plaintiff would not claim a division of property, etc. along with the aforementioned content in the instant protocol on conciliation, thereby rendering a separate decision that the Plaintiff did not claim a division of pension. As such, the Defendant’s disposition of this case is lawful.

B. Determination

1) Major relevant statutes

Article 45 (1) of the Public Officials Pension Act provides that "where a person who has been a spouse for at least five years is divorced from his/her spouse (Article 45 (1) of the same Act, a person who has been a spouse shall be a beneficiary of a retirement pension or early retirement pension (Article 1 (1) 1), and reaches the age of 65 (Article 1 (2) of the same Act, he/she may receive a specified amount of pension dividing his/her spouse's retirement pension or early retirement pension (hereinafter referred to as "divided pension") during his/her lifetime from that time, and Article 45 (2) of the same Act provides that "the amount of a divided pension shall be the amount calculated by equally dividing the amount of a pension corresponding to the period of marriage among the amount of a retirement

On the other hand, Article 46 of the Public Officials Pension Act, notwithstanding Article 45(2) of the same Act, where the division of pension has been separately determined pursuant to Article 839-2 or 843 of the Civil Act, the same shall apply. (hereinafter “Special Provision”).

2) Relevant legal principles

The divided pension system under the Public Officials Pension Act allows a public official’s spouse who is divorced from a public official to receive liquidation distribution by recognizing the portion of his/her contribution to the formation of the right to receive a retirement pension or early retirement pension acquired during the marriage period during his/her tenure of office. Meanwhile, the purport was to guarantee a certain level of old age income based on the other party’s right to receive a retirement pension or early retirement pension (see Constitutional Court en banc Decision 2016Hun-Ma54, Apr. 26, 2018). This is distinct from the right to claim property division under the Civil Act, and is the unique right that a person who was the spouse of a public

The Special Provision stipulates that the amount of a divided pension shall be calculated by equally dividing the amount of pension equivalent to the period of marriage among the amount of a retirement pension or early retirement pension of a former spouse.

Notwithstanding Article 46(2) of the Pension Act, where the division of a pension is separately determined upon a claim for division of property under the Civil Act, such determination shall be followed. This is intended to respect the intent of the parties and to promote concrete feasibility in consideration of the specificity of individual cases (see, e.g., Constitutional Court en banc Decision 2016Hun-Ma54, Apr. 26, 2018).

In full view of the legal nature of the right to receive the divided pension of a divorced spouse under the Public Officials Pension Act and the legislative intent of the Special Provision, in order to regard the “where the division of pension is separately determined” as “where the division of pension is separately determined”, it should be clearly revealed that there was an express agreement between the divorced parties to determine the division ratio, etc., or that the court has decided otherwise. On the contrary, in the case where the court decision, including the written agreement or the protocol of mediation, etc. between the divorced parties, does not specify the division ratio of pension, the divorce spouse should not readily conclude that there was an agreement between the divorce spouse to waive his/her entitlement to the divided pension or to set the ratio unfavorable to himself/herself, or that there was a court judgment with such content.

3) Specific determination

In full view of the following circumstances revealed from the facts acknowledged earlier and the purport of the entire pleadings, it is difficult to recognize that the Plaintiff has agreed to waive his/her entitlement to the divided pension in the instant divorce lawsuit, or that adjustment has been concluded with such content. The divorce party may freely determine the division ratio, etc. of the pension in the process of division of property in accordance with the Special Provision, but it does not necessarily have to be included therein to separately determine the division ratio. Considering that a divorce spouse’s entitlement to the divided pension is an inherent right recognized in the Public Officials Pension Act at the time of divorce, the divided pension should naturally be deemed to belong to the divorced spouse, unless otherwise expressly determined in the property division procedure.

B) The Plaintiff and the Intervenor renounced the remainder of the claim under paragraph (4) of the instant protocol of conciliation, and the Plaintiff and the Intervenor did not file all claims, such as consolation money and the division of property, in relation to the instant case in the future. It appears that even if the other party’s property was omitted or concealed in the process of division of property, it would not claim the division of property and the consolation money, and it is difficult to deem that the Plaintiff agreed to not exercise the right to receive the divided pension against the Defendant.

C) There is no explicit statement between the Plaintiff and the Intervenor that the Plaintiff renounced the entitlement to a divided pension or determined the division ratio, etc. of the pension differently from Article 45(2) of the Public Officials Pension Act. In addition, there is no circumstance to deem that the Plaintiff and the Intervenor discussed the entitlement to a divided pension against the Defendant in the instant divorce lawsuit.

C. Sub-decision

The plaintiff is a beneficiary of a divided pension under Article 45(1) of the Public Officials Pension Act, and there is no fact that the division of pension has been separately determined in the course of the divorce lawsuit in this case, so the disposition in this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.