Plaintiff

National Pension Service (Law Firm Ulul, Attorneys Ansan-young et al., Counsel for the defendant-appellant)

October 19, 2018

Busan District Court Decision 2018Guhap20055 Decided May 21, 2018

1. The defendant's appeal is dismissed.

3. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant's rejection disposition against the plaintiff on November 9, 2017 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning for this Court concerning this case is as follows, except for the part concerning ".." from 3 to 6 under the bottom of the fifth to 6 of the judgment of the court of first instance, as stated in the reasoning of the judgment of the court of first instance. Thus, the meaning of a summary used in this case is identical to that of the judgment of the court of first instance as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the meaning of a summary used in this case).

2. Parts to be dried;

"C. Determination"

1) Whether the division ratio of the divided pension under the National Pension Act can be determined as 100% of one spouse and 0% of the other spouse pursuant to the property division claim system under the Civil Act

A) Under the National Pension Act amended by Act No. 5623, Dec. 31, 1998, the former National Pension Act did not regulate the rights of a divorced spouse with respect to the right to receive pension benefits during the period of marriage. However, in the National Pension Act amended by Act No. 5623, the system recognizing the right to receive old age pension benefits (hereinafter “divided pension system”). Under the National Pension Act, the divided pension system allows a divorced spouse to receive liquidation and distribution of the right to receive old age pension benefits that the former spouse acquired during the period of marriage by recognizing the portion of contribution to the formation of the pension. On the other hand, the purpose of guaranteeing a certain level of old age pension income on the basis of the other spouse’s entitlement to receive old age pension for the spouse who was unable to subscribe to the National Pension due to domestic labor, etc. (see Constitutional Court en banc Decision 2015Hun-Ba182, Dec. 29, 2016).

B) According to Article 64(1) of the National Pension Act, (i) at least five years of marriage between a beneficiary of an old age pension and his/her former spouse are eligible for a national pension of a beneficiary of an old age pension; (ii) where a beneficiary of an old age pension and his/her spouse who was divorced from the beneficiary of an old age pension reach 60 years of age, the former spouse is entitled to a specified amount of the old age pension of a beneficiary of an old age pension; and (ii) the amount of the divided pension under Article 64(1) of the National Pension Act

However, it was pointed out that, during the marriage period, a spouse who does not actually live together with the other spouse’s old age pension would undermine the purpose of the divided pension system prepared to recognize the other spouse’s contribution to the formation of the pension during the marriage period. In order to improve such problems, the National Pension Act amended by Act No. 13642, Dec. 29, 2015 newly established a special exception to the payment of divided pension that requires compliance with the separate decision on the division of pension under the Civil Act (Article 64-2; hereinafter “Special Provision”). The Special Provision shall enter into force one year after its promulgation (Article 1 of the Addenda); the same shall apply from the time when the first ground for the payment of divided pension occurred (Article 2(1) of the Addenda).

C) According to the Special Provision, where the division of pension is separately determined pursuant to Article 839-2 (Claim for Division of Property by Agreement) of the Civil Act or Article 843 (Claim for Division of Property by Judicial Divorce) of the Civil Act, the same shall apply (Paragraph 1) and where the division of pension is separately determined pursuant to Paragraph 1, the Defendant Corporation shall report the division ratio, etc. (Paragraph 2).

As seen above, the Special Provision, premised on the premise that the right to receive a divided pension is a property subject to division of property, has a room for determining a different rate of contribution to the formation of a pension in the process of division of property under the Civil Act, or by considering all active and negative property acquired by both parties through cooperation during their marital life, thereby respecting the parties’ intentions and promoting specific feasibility in consideration of the specific nature of individual cases.

D) Until the Special Provision was established, the right to receive benefits under the National Pension Act cannot be transferred, seized, or provided as security (see Article 58(1) of the National Pension Act). Even if the other party who was divorced from the spouse of the beneficiary of a national pension gave up the right to receive a divided pension in advance at the time of divorce, it may be deemed null and void against Article 58(1) of the National Pension Act, since it actually transferred the right to receive a divided pension to the spouse in violation of the purpose of the National

However, in cases where a couple gets a divorce by agreement due to the enactment of the Special Provision, the parties consider the portion contributed by the other party to the property under their respective names, and determine the method of division of property taking into account the property needed for each person’s life after divorce. The proportion of division of an old age pension so determined may vary from the proportion prescribed in Article 64(2) of the National Pension Act. In such a case, it is possible to determine the proportion lower than that prescribed in the same provision, but it is also possible to set a larger ratio. The two parties may also determine that other property is to be received by the other spouse while dividing the old age pension at a lower rate than that prescribed in Article 64 of the National Pension Act, or to agree against the other spouse. In addition, where both parties claim a division of property while divorce while a couple claims a division of property, the court may determine the division ratio of old age pension in consideration of all the circumstances, such as the degree of contribution by both parties to the formation of property during the marriage (see Constitutional Court Order 2016Hun-Ma45, Apr. 26, 2018).

E) Comprehensively taking account of the above circumstances, it is reasonable to view that the respect for the party’s agreement or court’s decision on the divided pension upon seeking a division of property under the Civil Act is consistent with the interests and substantial equity between the parties. As such, it is reasonable to view that one spouse may vest in the other spouse before one spouse renounces the right to receive the divided pension, such as setting one spouse’s 10% and 0% of the other spouse’s entitlement to the divided pension.

2) Whether the instant adjustment constitutes a separate determination as to the division of pension under the Special Provision

In full view of the aforementioned facts and the legislative intent of the Special Provision and the following circumstances recognized by each evidence, it is reasonable to deem that the Plaintiff and Nonparty 1 agreed on the division of property to vest in the Plaintiff before Nonparty 1 renounced the entitlement to a divided pension pursuant to Article 64-2(1) of the National Pension Act, and it is reasonable to deem that such agreement constitutes a case where the division of pension is separately determined according to the division of property at the time of judicial divorce under Article 64-2(1) of the National Pension Act

A) At the time of the instant divorce lawsuit, the Plaintiff and Nonparty 1 claimed a solatium and a division of property against both parties as well as a divorce claim, and they seem to have agreed to the instant conciliation provisions by mutual concession in order to finally settle the dispute during the process of the lawsuit.

B) In the course of the instant divorce lawsuit, the real estate subject to division between the Plaintiff and Nonparty 1 appears to be the only apartment (1/2, respectively, the share of the Plaintiff and Nonparty 1’s co-ownership), and the Plaintiff and Nonparty 1 could sufficiently anticipate the right to receive the national pension for division of property at the time of the instant conciliation. It is difficult to view that the Plaintiff’s right to receive the national pension falls under the property additionally discovered after the instant conciliation was established.

C) As seen earlier, as long as the right to receive a divided pension is included in the property division subject to the right to receive a divided pension and the parties are able to freely determine the division ratio, there is no reason or reason to treat the right to receive a divided pension as different from the other couple’s joint property (including omitted or concealed property) in the process of divorce solely on the ground that not only the right to receive a divided pension but also the right to receive a social security benefit has the nature

D) As to the claim for division of property between both parties at the time of the instant conciliation, the Plaintiff and Nonparty 1 specified the details of the division of property at the time of the instant conciliation clause, and added up the so-called “a waiver clause,” which gives up both the remainder of the principal claim and the remainder of the counterclaim, pursuant to Article 3(8) of the conciliation clause, the Plaintiff and Nonparty 1 specified the so-called “a liquidation clause,” which does not claim the division of property regarding the instant divorce, in addition to the matters set forth above.

E) In the case of the so-called “a waiver clause” stipulated under the instant conciliation clause, barring any special circumstances, the object of renunciation is limited to the property that was revealed in the process of property division, and if the property omitted or concealed in the process of property division is newly discovered, there is room for filing a claim for property division once the exclusion period for property division expires (the same shall apply in cases where property division is made by a judgment). On the contrary, in the case of the so-called “settlement clause” contrary to the relevant conciliation clause, as well as the property revealed in the process of property division, insofar as it is not specifically stipulated in the said clause, it is too ineffective to the other party as well as the property omitted or concealed in the process of property division.

F) If the divorce party’s mediation of the division of property does not specify only the so-called “defensive clause” under the conciliation clause, and separately states “a liquidation clause”, it is reasonable to view that not only the property revealed in the process of the division of property but also the property omitted or concealed by the other party in the process of the division of property would not claim for the division of property in the future.

G) Article 9(9) of the instant conciliation provision provides that “The Plaintiff and Nonparty 1 shall not claim a division of property against the other party in the future, except as provided above, in addition to the claim for division of property related to the divorce of the instant case, and there is no express statement to exclude the Plaintiff’s entitlement to the division of a divided pension from the property subject to the instant conciliation provision. Thus, it is reasonable to deem that the Plaintiff’s entitlement to the division of a divided pension is not applicable to the other couple’s joint property, including the property omitted or concealed.

H) Furthermore, in light of the content that the Plaintiff paid KRW 170 million to Nonparty 1, instead of receiving Nonparty 1’s share in the above apartment as a result of the division of property, and agreed that Nonparty 2’s child care was borne by the Plaintiff while bringing up the child, it is difficult to accept the Defendant’s assertion that the Plaintiff’s entitlement to the national pension at the time of the instant conciliation was excluded from the property division, or that Nonparty 1 may claim for the division of property in the future, notwithstanding Article 1(9) of the instant conciliation provision.

I) The Defendant did not explicitly state that the right to receive a divided pension should not be claimed in the future, so the instant disposition is lawful. However, as seen earlier, inasmuch as the Special Provision was newly established and the right to receive a divided pension was included as the object of division of property, as well as the common property of other couple, so that the parties can freely determine the division ratio, the right to receive a divided pension should also be applied to the other couple’s common property as well as the other couple’s common property. Rather, if the divorce party establishes a “settlement clause” while coordinating the division of property, the right to receive a divided pension should be clearly stated in the “Liquidation clause” if it intends to exclude the right to receive a divided pension from the subject of application of the “settlement clause” unlike other couple’s common property, it is reasonable to deem that the Plaintiff’s property division was made between the Plaintiff and Nonparty 1, including the right to receive a divided pension from the Defendant in the future.

3) Notwithstanding the instant conciliation, whether Nonparty 1 has the right to receive a divided pension

A) The Defendant asserts that Nonparty 1 still has the right to receive a divided pension, notwithstanding Article 1(9) of the instant conciliation provision, on the ground that Nonparty 1 demanded the Defendant Corporation to make a prior claim after the instant conciliation was established, and the Defendant legally revoked his intention to waive the right to receive a divided pension.

B) On the other hand, even if it is possible to revoke the intention to waive the right to receive a divided pension as the defendant's assertion, the conciliation has the same effect as the final and conclusive judgment, such as a judicial compromise, and thus res judicata takes effect between the parties. Therefore, the conciliation can only be asserted by a quasi-deliberation suit unless there is any ground such as the inevitable invalidation of the final and conclusive judgment, and the validity of the conciliation cannot be denied immediately on the ground of the defect in the process of establishing the conciliation and the withdrawal

C) Therefore, there is no evidence to deem that the instant conciliation has lost its validity by a lawsuit for quasi-deliberation, and it is difficult to deem that Nonparty 1 still has the right to receive a installment payment, notwithstanding paragraph (9) of the instant conciliation provision. The Defendant’s assertion is without merit.

4) Sub-committee

As a result of the division of property between the Plaintiff and Nonparty 1’s divorce, the Plaintiff’s division ratio is 100%, and Nonparty 1’s division ratio is 0%, so the instant disposition rejecting the Plaintiff’s request for separate determination of the pension division ratio is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-cheon (Presiding Judge)