Methods to exercise the right to receive benefits under the Military Pension Act and party litigation

In full view of the provisions of Articles 10 and 5 of the Military Pension Act and Articles 45 and 46 of the Enforcement Decree of the same Act, the right to receive a wounded veterans' pension, etc. under the same Act does not directly arise under the provisions of Acts and subordinate statutes, but arises only when the Minister of National Defense recognizes a specific right upon a request by the Chief of Staff of the military service to which a person who wishes to receive the same benefits belongs. The person who intends to receive the above benefits first requests recognition of such right to the Minister of National Defense pursuant to the related Acts and subordinate statutes and takes a disposition to refuse a request for recognition or to recognize a part of a claim, the Minister of National Defense shall seek payment of the benefits through a party litigation only after he/she has obtained recognition of specific right by filing an appeal against the disposition. It is not allowed to demand

Articles 10 and 5 of the Military Pension Act, Articles 45 and 46 of the Enforcement Decree of the Military Pension Act, Article 3 subparagraph 2 of the Administrative Litigation Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff-Appellant Park Jae-sik, Counsel for the plaintiff-appellant

Korea

Seoul High Court Decision 92Gu17169 delivered on July 14, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

In full view of the provisions of Articles 10 and 5 of the Military Pension Act and Articles 45 and 46 of the Enforcement Decree of the same Act, the right to receive a wounded veterans' pension under the Military Pension Act does not directly arise under the provisions of Acts and subordinate statutes, but the right to receive a wounded veterans' pension under the Military Pension Act arises only when the Minister of National Defense recognizes a specific right upon request by the Chief of Staff of the military branch to which a person who wants to receive the above benefits belongs (see Supreme Court Decision 7Da249 delivered on February 14, 1978). Accordingly, the person who wants to receive the above benefits shall first obtain the recognition of the right from the Minister of National Defense in accordance with the related Acts and subordinate statutes where the Minister of National Defense refuses a request for the recognition of the right or conducts a disposition to recognize only a part of the claims, etc., and it is not permitted to demand the payment of the benefits as a party litigation against the State immediately without a specific right. Therefore, the judgment below is justifiable and there is no error in the misapprehension of legal principles and the grounds for non-payment.

In addition, even if the court below erred in holding that the Plaintiff’s right to receive the instant benefits has expired due to the expiration of extinctive prescription, it is not acceptable to criticize the conclusion of the instant case as it does not affect the conclusion of the judgment.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)