Whether the “spouse” under Article 41-2(2) of the former Public Officials Pension Act includes a person who is in a de facto marital relationship (affirmative)

Article 3 (1) 3 (a) of the former Public Officials Pension Act (wholly amended by Act No. 15523, Mar. 20, 2018) (see current Article 3 (1) 2 (a)) and Article 41-2 (2) (see current Article 43 (2) of the Public Officials' Accident Compensation Act)

Plaintiff (Law Firm LLC, Attorneys Kim Chang-chul, Counsel for the plaintiff-appellant)

The Government Employees Pension Service

Seoul High Court Decision 2018Nu69587 decided April 23, 2019

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

The grounds of appeal are examined.

1. The issues of the case

Article 41-2(2) of the former Public Officials Pension Act (wholly amended by Act No. 15523, Mar. 20, 2018; hereinafter “former Public Officials Pension Act”) provides that “where a public official dies, he/she shall be paid condolence money to his/her spouse, but where there is no spouse, he/she shall be paid condolence money to the person who holds a funeral and funeral and funeral as prescribed by Presidential Decree,” instead of establishing a definition provision on “spouse” in Article 3(1)3(a) of the Public Officials Pension Act, the former Public Officials Pension Act (wholly amended by Act No. 15523, Mar. 201; hereinafter “former Public Officials Pension Act”) provides that “a person who is in a de facto marital relationship with “spouse” among the bereaved family members under the Public Officials Pension Act shall be included in the issue of this case.

2. Determination

A. In light of the legislative background of death condolence money under the Public Officials Pension Act, the text and purport of relevant provisions, etc., “spouse” under Article 41-2(2) of the former Public Officials Pension Act includes a person in a de facto marital relationship, and where a public official dies, it should be deemed that the death condolence money is recognized for a person in a de facto marital relationship with the public official. The reasons are as follows.

1) As the Public Officials Pension Act was wholly amended by Act No. 1133 on Aug. 31, 1962, the provision for funeral expenses similar to the current “Condolence money” (Article 25) was newly established. The provision for funeral expenses did not explicitly exclude a person in a de facto marital relationship from the beneficiary of funeral expenses because he/she was entitled to funeral expenses as “the funeral person”. Thereafter, the provision for funeral expenses was deleted from the Public Officials Pension Act by Act No. 3221 on Dec. 28, 1979 on the ground of duplicate payment following the enforcement of public official medical insurance, and the provision for the payment of condolence money was newly established following the amendment of the Public Officials Pension Act (Act No. 3735 on Jul. 25, 1984), and the amendment of the former Enforcement Decree of the Public Officials Pension Act (amended by Presidential Decree No. 1158 on Dec. 10, 1984) provides that a certified copy of the amended provision for “a person in a marital relationship with the deceased person’s claim for condolence money should not be submitted.”

2) Article 3(1)3(b) of the former Public Officials Pension Act and Article 3(1)3(d)(hereinafter “parents and grandchildren” are added to the phrase “spouses and grandchildren” under other provisions of the former Public Officials Pension Act. On the other hand, in the case of spouse, the term “spouses and grandchildren” includes only “spouses who are in a de facto marital relationship” and the term “spouses and grandchildren” under other provisions of the former Public Officials Pension Act are treated as not including those in a de facto marital relationship. However, Article 3(1)3 subparag. 3(b) and (d) of the former Public Officials Pension Act provide that “childs and grandchildren who are entitled to “bereaved families” under Article 3(1)3(b) and (d) of the former Public Officials Pension Act do not appear to have the same meaning as “spouses and grandchildren” under Article 3(2) of the former Public Officials Pension Act, and Article 3(1)2 of the former Public Officials Pension Act provides that “other provisions than Article 5(2) of the former Public Officials Pension Act provide that “spouses and grandchildrens and grandchildren” are identical to the same.”

3) Furthermore, as the Public Officials Pension Act was amended by Act No. 15523 on March 20, 2018, and the Public Officials Accident Compensation Act was enacted by Act No. 15522 on the same day, in addition to the phrase “spouse” under Article 3(1)2(a) of the Public Officials Pension Act and the phrase “spouse” under Article 3(1)5(a) of the Public Officials Accident Compensation Act and Article 3(1)5(a) of the Public Officials Accident Compensation Act, each “spouse” under other provisions of the Public Officials Pension Act indicate that “spouse” is the same as the spouse under Article 3 of the Public Officials Compensation Act.

4) The former Public Officials Pension Act includes bereaved family’s benefits, condolence money, and divided pension. The bereaved family’s benefits are under Articles 3(1)3(a), 42 subparag. 3, 56, 60, and 61 of the former Public Officials Pension Act. The divided pension is under Article 46-3 of the former Public Officials Pension Act and the proviso to Article 39-6(1) of the former Enforcement Decree of the Public Officials Pension Act (wholly amended by Presidential Decree No. 29181, Sept. 18, 2018). Thus, there is no special circumstance to exclude a person who has de facto marital relations only with the death condolence money.

5) As a type of social security benefit, death condolence money is a kind of social security benefit, and has the nature of a donation given to the bereaved family for the purpose of causing emotional distress to the bereaved family and lowering the economic burden of the bereaved family due to the death of the public official, and also contributing to the stabilization of the livelihood of the bereaved family. However, the degree of mental distress, etc. caused by the death of the public official is difficult to deem that the marital relationship is different depending on whether a person in a de facto marital relationship is a legal marriage or a de facto marital relationship. However, if it is interpreted to exclude a person in a de facto marital relationship under the former Public Officials Pension Act even though there is no express provision excluding him/her from the beneficiary of the death condolence money without reasonable grounds, it

B. Therefore, the lower court’s determination that the beneficiary of condolence money under the former Public Officials Pension Act includes a person who was in a de facto marital relationship is based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending

3. Conclusion

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 Jo Hee-de (Presiding Justice)