[1] Where the other party who is divorced from his spouse as a beneficiary of a national pension agrees to waive the entitlement to a divided pension at the time of divorce, the validity of such agreement (=negative)

[2] In a case where Gap agreed to waive the share of the national pension ( old age pension) at the time of divorce and divorce with Eul's spouse Eul, the case holding that the prior waiver agreement is null and void against Article 58 of the National Pension Act

[1] Article 64 of the National Pension Act provides that a person who has been divorced from a spouse who is a national pension holder shall equally divide the amount of pension corresponding to the period of marriage among the amount of old age pension that the former spouse receives after the age of 60. In that it guarantees a certain amount of amount for mental or material contribution during the marriage period, it is similar to a claim for division of property under the Civil Act that divides property according to the degree of contribution to the formation of property during the marriage period. However, the purpose of the National Pension Act is to contribute to the stabilization of livelihood and welfare of the people by providing pension benefits for old age, disability or death (Article 1 of the National Pension Act), and the right to receive benefits is to protect the right to receive national pension benefits by transferring, seizing or providing it as security (Article 58 of the National Pension Act). In light of the above, the right to receive benefits is not to have the right to liquidate the amount of pension during the marriage period and to guarantee a certain amount of spouse's right to receive the retirement pension in advance against the purpose of the divorce system under the Civil Act.

[2] In a case where Gap agreed to waive the share of the national pension ( old age pension) at the time of the divorce with his spouse Eul, the case holding that this is null and void against Article 58 of the National Pension Act, since Gap actually transferred his right to receive a divided pension against the purpose of the National Pension Act

[1] Articles 1, 58, and 64 of the National Pension Act / [2] Articles 1, 58, and 64 of the National Pension Act

Plaintiff

Defendant

July 17, 2009

1. The plaintiff's claim is dismissed.

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

Since the defendant did not divide the plaintiff's old age pension at the time of the divorce with the plaintiff, it is necessary to cancel the payment of the current divided pension.

1. Facts of recognition;

The following facts may be acknowledged by comprehensively considering the statements in Gap evidence Nos. 1, 2, and 3, and the testimony of the non-party witness as a whole.

A. On August 6, 1970, the Plaintiff married with the Defendant and married on January 2, 2003, and was currently receiving the national pension ( old age pension) under the National Pension Act.

B. On the other hand, on December 31, 2002, immediately before the above agreement was reached, the Defendant drafted a letter stating that “the Defendant, on January 2, 2003, renounced the shares of the national pension beneficial to the Plaintiff and did not claim ownership in any case thereafter (hereinafter “instant waiver agreement”).” to the Plaintiff on December 31, 2002, the Defendant drafted a letter stating that “The Defendant would waive the shares of the national pension beneficial to the Plaintiff on the grounds of a divorce with the Plaintiff.”

C. However, on December 8, 2008, the Defendant filed a claim with the National Pension Service for the installment payment of the Plaintiff’s national pension ( old age pension) under Article 64(1) of the National Pension Act, which became sixty years of age, and the National Pension Service rendered a decision to reduce the Plaintiff’s national pension (old age pension) from KRW 566,410, to KRW 283,200, which is the previous monthly pension amount, upon the Defendant’s request for installment payment of pension on January 15, 2008, and notified the Plaintiff on January 23, 2009.

2. Determination as to the cause of action

A. The plaintiff's assertion

On December 8, 2008, the Plaintiff claimed a divided pension for the Plaintiff’s national pension (old age pension) to the National Pension Service, but agreed to waive the Defendant’s share in the Plaintiff’s national pension (old age pension) at the time of divorce with the Plaintiff, and accordingly, the Defendant asserts that the claim for the installment payment should be revoked in accordance with the instant waiver agreement.

B. Determination

The Plaintiff’s claim of this case requires the National Pension Service to express its intent to cancel the claim for payment of pension in installments in accordance with the waiver agreement of this case. Thus, the Plaintiff’s claim of this case is “judgment in lieu of the obligor’s declaration of intent” under Article 389(2) of the Civil Act, and so-called performance lawsuit, including “judgment in lieu of the obligor’s declaration of intent

In this case, the divided pension system under Article 64 of the National Pension Act is similar to the claim for division of property under the Civil Act that divides property according to the degree of contribution to the formation of property during the marriage period in that a person who has been divorced from his spouse who is a national pension subscriber after age 60 guarantees a certain amount of the amount of the pension equivalent to the amount of the pension during the marriage period. However, while the purpose of the National Pension Act is to contribute to the stabilization of livelihood and the promotion of welfare of the people by providing pension benefits for old age, disability, or death (Article 1 of the National Pension Act), the right to receive benefits is not transferred, seized, or provided as security (Article 58 of the National Pension Act), the right to receive benefits is protected by protecting the right to receive the national pension benefits by being unable to be transferred, seized, or provided as security (Article 58 of the National Pension Act). In light of the above, the divided pension system is not to have the spouse equal in the future through liquidation of the amount of the pension during the marriage period, but to guarantee a certain amount of the spouse's right to divorce.

Therefore, since the waiver agreement between the plaintiff and the defendant is null and void, the plaintiff does not have the right under substantive law to request the defendant to "a declaration of intent to cancel the claim for installment payment made by the defendant to the National Pension Service."

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jin-ro (Presiding Judge)