2018Du32590 Revocation of revocation of revocation of the installment payment of a public official pension

Plaintiff:

Attorney Choi Han-hoon, Counsel for the plaintiff-appellant

The Government Employees Pension Service

Law Firm LLC (Attorney Park Jae-woo et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2017 11617 decided December 13, 2017

December 12, 2019

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Article 46-3(1) of the Public Officials Pension Act (wholly amended by Act No. 13387, Jun. 22, 2015; hereinafter "the amended Act") effective January 1, 2016 (Article 46-3(1) provides that "a person whose spouse has served as a public official for at least five years shall be divorced from his/her spouse (Article 1); a person who has served as a spouse shall be a beneficiary of retirement pension (Article 2(2)2); and a person who has served as a former spouse (Article 2(2)1 of the Addenda to the amended Act (Article 2(3) provides that a person who has served as a public official shall be 60 years of age from 2016 to 2021) shall be entitled to receive a certain annual amount of retirement pension (hereinafter "divided pension") during his/her lifetime. The amount equivalent to the amount of a divided pension shall be determined equally as the amount of his/her spouse's pension during the period of marriage.

On the other hand, Article 2 (1) (hereinafter referred to as "the supplementary provision of this case") of the Addenda to the amended Act provides that "the divided pension under the amended provisions of Articles 46-3 through 46-5 shall be paid from the person who first causes for payment after the enforcement of this Act."

It is reasonable to view that “a person who first causes for payment after this Act enters into force” refers to a person who was divorced after January 1, 2016, the enforcement date of the amended Act (see Supreme Court Decision 2018Du32200, Oct. 31, 2019). Therefore, even if a person who had already been divorced before January 1, 2016 satisfies the requirements under Article 46-3(1)2 and 3 of the amended Act, he/she cannot be paid a divided pension according to the restriction under the provisions of the Addenda of this case, even if the person who was divorced after January 1, 2016 meets the requirements under Article 46-3(1) of the amended Act (Article 46-3(1) (Article 2 or 3) prior to the enforcement date of the amended Act (Article 46-3(1)).

2. According to the lower judgment, the following facts are revealed.

On November 21, 1977, the plaintiff (the plaintiff of May 13, 1956) filed a lawsuit against the non-party who reported a marriage on November 21, 197, and the plaintiff and the non-party who were divorced on June 16, 2014, and the non-party paid to the plaintiff 50% of the amount of the public official pension (pension's pension) paid to the plaintiff from June 25, 2014, the adjustment was concluded on June 25, 201. The plaintiff applied for a divided pension under Article 46-3 of the amended Act against the defendant on June 28, 2016, which was 60 years of age, but the defendant rejected the plaintiff's application for a divorced pension on June 16, 2014, which was Amended by Act No. 13874, Jul. 4, 2016.

3. Examining the facts acknowledged by the lower court in light of the legal doctrine as seen earlier, even if the Plaintiff, who was divorced from the Nonparty on June 16, 2014, prior to the enforcement date of the amended Act, reached the age of receiving the divided pension (60 years old in this case) under Article 46-3(1)3 of the amended Act after the enforcement date of the amended Act, the Plaintiff cannot be deemed to be eligible for the payment of the divided pension under Article 46-3(1)3 of the Addenda of the instant case. Nevertheless, if the lower court satisfied the requirements under Article 46-3(1)3 of the amended Act only when the person who was divorced before the enforcement date of the amended Act, reaches the age of 60 years after the enforcement date of

In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application of Article 46-3 of the amended Act and the supplementary provision of this case, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

On the other hand, through the adjustment on June 16, 2014, the Plaintiff was paid 50% of the Nonparty’s public official’s pension amount to the Nonparty by way of periodic payments. As such, the Plaintiff pointed out that, if the Nonparty did not perform his/her duty under the above adjustment without justifiable grounds, the Plaintiff may enforce its performance by filing an application with the Family Court for a performance order under Article 64 of the Family Litigation Act (see Supreme Court en banc Decision 2012Meu288, Jul. 16, 2014).

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court 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 Jong-soo

Justices Kim Jong-il

Chief Justice Lee Ki-taik

Justices Park Il-san