[1] Legal nature of the entitlement to bereaved family benefits

[2] The time when the entitlement to a survivor pension under Article 26 (1) 1 of the Military Pension Act occurs (=the time of death)

[3] Where a person who received a retirement pension before the enforcement of Article 19(4) of the Military Pension Act dies after the enforcement of the Military Pension Act, whether the ground for the benefits of the survivors' pension occurred after the enforcement of the Act (affirmative)

[1] When a person who is or was a soldier who has the right to receive a retirement pension dies, the right to receive a survivor's pension under Article 26 (1) 1 of the Military Pension Act, which is derived from his/her bereaved family, is directly acquired as his/her own right as prescribed by the Act, and is not the same as inheritance of the right to receive a veteran's pension under the Civil Act.

[2] The entitlement to a survivor's pension under Article 26 (1) 1 of the Military Pension Act is established when a person who is or was a soldier who has the entitlement to a veteran's pension dies.

[3] If a person who had been receiving a retirement pension before the enforcement of Article 19(4) of the Military Pension Act dies after the enforcement of the Act, the bereaved family is entitled to receive the survivors' benefits after the enforcement of the Act.

[1] Article 1, Article 3(1)4, Article 14, Article 26(1)1, and Article 29 of the Military Pension Act / [2] Article 1, Article 3(1)4, Article 14, and Article 26(1)1 of the Military Pension Act / [3] Article 19(4) of the Military Pension Act, Article 1 and Article 2 of the Addenda of the Military Pension Act

[1] Supreme Court Decision 95Nu9945 delivered on September 24, 1996 (Gong1996Ha, 3223) Supreme Court Decision 95Nu19 delivered on September 24, 1996

[Judgment of the court below]

The Minister of National Defense

Seoul High Court Decision 97Gu29747 delivered on December 4, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

According to Article 26 (1) 1 of the Military Pension Act, in cases where a person who is or was a soldier who has the right to receive a retirement pension dies, his/her bereaved family shall be paid a survivor's pension. However, according to Articles 1, 3 (1) 4, 14, and 29 of the Military Pension Act, the survivor's pension system aims to contribute to the stabilization of the livelihood of the soldier and his/her bereaved family members and the enhancement of their welfare by paying appropriate benefits to "bereaved family members prescribed by the Act independently in cases where the soldier died while he/she faithfully served as a soldier and faithfully served as a soldier." In cases where there is no "bereaved family member entitled to the survivor's pension", the maximum amount prescribed by the Presidential Decree shall be paid to his/her lineal descendant or lineal ascendant, and if the person who has the right to receive the survivor's pension retires or is deceased as his/her duty to receive the survivor's pension, the person who has the right to receive the survivor's right to receive the survivor's pension shall not be determined as 18 or 9 years of disability.

On the other hand, Article 19 (4) of the Military Pension Act (amended by Act No. 5063 of Dec. 29, 1995), which was newly established by Act No. 5063 of Dec. 29, 1995, provides that "if a person who has the right to receive a retirement pension receives a survivors' pension in addition to his retirement pension, he shall be paid at the reduction of half the amount of such survivors' pension," and Article 1 of the Addenda of the Act provides that "this Act shall enter into force on January 1, 1996," and Article 2 of the Addenda provides that "if a person who had received a retirement pension prior to the enforcement of Article 19 (4) of the Military Pension Act dies after the enforcement of the Act, the bereaved family shall be entitled to receive the survivors' benefits after the enforcement of the Act."

However, the court below recognized the fact that the deceased non-party who received the retirement pension under the Military Pension Act as his husband died on March 1, 1997, and that the plaintiff was receiving the retirement pension under the Military Pension Act, and determined that the plaintiff should pay the plaintiff a half of the amount of the survivors' pension by applying Article 19(4) of the Military Pension Act to the plaintiff. This decision of the court below is just as it is with the opinion of the party members, and it is not erroneous in the misapprehension of legal principles as to the legal nature of the survivors' benefits under the Military Pension Act, or in the application of Article 19(4) of the Military Pension Act retroactively in violation of the Constitution, as discussed above. There is no ground for appeal.

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 on the bench.

Justices Final Young-young (Presiding Justice)