Plaintiff (Dongwon General Law Firm, Attorneys Lee Ho-soo et al., Counsel for plaintiff-appellant)

The Minister of National Defense

October 18, 2006

Seoul Administrative Court Decision 2005Guhap27017 decided January 26, 2006

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant's refusal to pay the survivor pension against the plaintiff on March 18, 2005 shall be revoked.

1. Details of the disposition;

A. Nonparty 1 was born on August 10, 193, and was discharged from the Republic of Korea on June 30, 1978 under the Presidential Decree of the Republic of Korea, and died on February 26, 2005 (hereinafter “the deceased”). The Plaintiff completed a marriage report with the deceased on May 17, 2003.

B. The Plaintiff asserted that the deceased’s spouse constitutes a bereaved family member under Article 3(1)4 (a) of the Military Pension Act, and filed a claim for the payment of the survivors’ pension under Article 26(1)1 of the same Act with the Defendant. On March 18, 2005, the Defendant rendered a decision on the payment of the survivors’ pension on the ground that the Plaintiff’s spouse fell under the “spouse who was married after age 61 after his retirement” and re-born with the deceased on May 17, 2003, and thus, he cannot become a person entitled to the survivors’ pension (hereinafter “instant disposition”).

[Grounds for recognition] The descriptions of evidence Nos. 1 and 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff was supported by the deceased’s spouse who was in a de facto marital relationship with the deceased from around 1980, much more than before the deceased’s age 61, and was supported by the deceased at the time of his death. On the other hand, the legal marriage between the deceased and the non-party 2 merely did not report divorce before 1980, and the de facto marital relationship was terminated. If so, de facto marital relationship between the deceased and the deceased is legally protected, and the Plaintiff constitutes a beneficiary of survivor’s pension under the Military Pension Act. Accordingly, the instant disposition based on a different premise is unlawful.

(2) The defendant's assertion

In addition, there is no evidence that the Plaintiff had a de facto marital relationship from “before the deceased reaches the age of 61” and even if so, even if so, the deceased still maintained a legal marital relationship with Nonparty 2, and thus de facto marriage between the Plaintiff and the deceased constitutes a de facto marital relationship that cannot be legally protected, and thus, the Plaintiff cannot be a beneficiary of survivor pension under the Military Pension Act.

B. Relevant statutes

Military Pension Act

Article 3 (Definitions of Terms) (1) The definitions of terms used in this Act shall be as follows:

4. the term "bereaved family member(s)" means any of the following persons who are supported by a person who is or was a soldier at the time of his death (in case of payment of disaster compensation as provided in Article 31, it is not possible to support him):

(a) A spouse (including a person who was in a de facto marital relationship, but excluding a spouse who was married after the age of 61 after retirement);

Article 26 (Survivor Pension) (1) Where a person who is or was a soldier falls under any of the following subparagraphs, his/her bereaved family members shall be paid a survivor pension:

1. Where the person who has the right to receive a retirement pension dies;

Enforcement Decree of the Military Pension Act

Article 3 (Survivors)

(2) The verification of the fact that the bereaved family is supported by the bereaved family under the provisions of Article 3 (1) 4 of the Act and the verification of the fact that the marriage, birth, or adoption relationship is formed shall be based on the certified copy of family register in cases where the family register is the same as the family register; in cases where the family is different, or where the person is in a de facto marital relationship, it shall be based on the certified copy of family register and the certified copy of family register of such person, or on the confirmation of the head of a Si/Gun/Gu having jurisdiction over his/her place of residence or the head of a Si/Gun/Gu: Provided, That in cases where it is possible to verify the information about the required documents through the joint use of

(c) Fact of recognition;

(1) The Deceased reported the marriage on February 24, 1959 with Nonparty 2, but completed the divorce on August 29, 2002, and thereafter reported the marriage on May 17, 2003 to the Plaintiff.

(2) There was no child between the deceased and the non-party 2, and the deceased and the non-party 2 were entered in the family register as they gave birth to the non-party 3 on October 11, 1966, but later, the above records were cancelled by the Seoul Family Court Decision (the case number omitted) on May 11, 2004 against the deceased.

(3) On the end of 1979, the Plaintiff joined a family group of the deceased, such as life-savings, etc., after having introduced the deceased’s relatives to his wife at around 1984, the Plaintiff participated in the deceased’s family group. The Plaintiff introduced the deceased as her husband to his husband, and went to and from the deceased’s husband with his husband. From the early stage of the teaching system, the Plaintiff maintained the above relationship even with the deceased, knowing that he had a separate legal spouse.

(4) On December 25, 1985, the Plaintiff gave birth to Nonparty 4, and on November 28, 1991, the Plaintiff gave birth to Nonparty 5, along with the deceased, such as a memorial event, such as a white day, a stone, etc., family boom, travel, and appearance. However, on the grounds that the Plaintiff and the Deceased did not report a marriage between themselves, they were registered with the deceased’s family register without registering his or her husband’s family register, but on March 9, 2004, they were registered with the deceased’s family register through the recognition process.

(5) From April 10, 1978 to December 25, 2002, the deceased transferred his/her divorce report with Nonparty 2 as well as Nonparty 2 on his/her resident registration; the Seodaemun-gu Seoul, Seoul Special Metropolitan City, Gwanak-gu, Seoul Special Metropolitan City (Saengdong omitted); the Gyeonggi-gu, Seoul Special Metropolitan City (Saeungdong omitted); the Dobong-gu, Seoul Special Metropolitan City, Suwon-dong (Saeungdong omitted); the Dobong-gu, Dobong-gu, Seoul; the Dobong-gu Seoul Seoul Seoul, Seodong-dong (Saeungdong omitted); the Dobong-gu Seoul, Seoul, Changdong-dong (Sadong omitted); the Dobong-dong (Sadong omitted); and the Seongbuk-gu Seoul, Seodong-dong (Sadong omitted); and the Seongbuk-gu (Sadong omitted until marriage between Nonparty 3 and 194). However, the deceased was registered in the same place as above until his/her marriage between Nonparty 2 and Nonparty 3).

(6) On the other hand, the Deceased continued to pay the living expenses to Nonparty 2 for reasons of Nonparty 2’s refusal, and provided the building located at the last domicile of Dobong-gu Seoul, Dobong-gu, Seoul, to Nonparty 2, and had him live at that place and use the income from the lease of the store in the building for the cost of living. On August 2002, the Deceased disposed of the above building, and agreed with Nonparty 2 on the condition that all the remaining money would be repaid by Nonparty 2, such as gambling and damage.

(7) On December 26, 2002, after the deceased divorced with Nonparty 2, the deceased transferred his resident registration to Nonparty 2 separately from Nonparty 2, and the Seoul Gangnam-gu (detailed address omitted) where the plaintiff was transferred, and the deceased had the same resident registration place with the plaintiff from this time until the death.

[Ground of recognition] Evidence Nos. 3 through 16, Evidence Nos. 2-1 and 2-2, testimony of Non-party 6 (part) by a trial witness, the result of the party examination, the purport of the whole pleadings

D. Determination

(1) A de facto marital relationship between the Plaintiff and the Deceased

㈎ 군인연금법 제3조 제1항 제4호 가목 은, 유족연금을 받을 수 있는 ‘유족’으로서의 ‘배우자’에 ‘사실상 혼인관계에 있던 자’를 포함하되, ‘군인이 퇴직 후 61세 이후에 혼인한 배우자’는 제외하는 것으로 한정하고 있다.

Meanwhile, according to Article 3(2) of the Enforcement Decree of the Military Pension Act, in order to prove a de facto marital relationship, the certified copy of the resident registration and the certified copy of the family register or the certificate issued by the head of the Si/Gun/Gu having jurisdiction over the place of residence in order to verify the fact of a de facto marital relationship shall be governed by the certified copy of the resident registration and the certified copy of the family register or the certificate of the head of the Si/Gun/Gu having jurisdiction over the marital relationship. Thus, if it is proved by other data that the parties are subjectively

㈏ 이 사건에서 위 인정사실에 의하면, 원고는 1980년경부터 망인과 교분을 갖다가 1984년경부터 망인의 가족행사에 참석하고 1985년경 둘 사이에 딸을 출산한 이래 부부관계를 유지해 온 것으로 보이므로, 늦어도 망인이 61세 되기(1994. 8. 21.) 전에 이미 망인과 사실상 혼인관계를 맺어 그가 사망할 때까지 이를 유지하였다고 인정된다.

(2) A de facto marital relationship

㈎ 위와 같이 군인연금법에서는 ‘사실상 혼인관계에 있던 배우자’도 유족의 범위에 포함시키고 있는데, 이는 사실상 혼인생활을 하여 혼인의 실체는 갖추고 있으면서도 단지 혼인신고가 없기 때문에 법률상 혼인으로 인정되지 아니하는 경우에 그 사실상 배우자를 보호하려는 취지이다. 그러나 만약 사실상 배우자 외에 법률상 배우자가 따로 있는 경우에는, 법률상 배우자 사이에 이혼의사가 합치되어 법률혼은 형식적으로만 존재하고 사실상 혼인관계가 해소되어 법률상 이혼이 있었던 것과 마찬가지로 볼 수 있는 등의 특별한 사정이 없는 한, 법률상의 배우자가 유족으로서 연금수급권을 가지고, 사실상 배우자는 위 법률에 의한 유족으로 보호받을 수는 없다( 대법원 1993. 7. 27. 선고 93누1497 판결 참조).

The phrase “special circumstances” described above refers to the de facto divorce status, and under the Korean legal system where the so-called “ de facto divorce” in which marriage and divorce are established by a report, there is no substance of marital community life objectively in order to conclude “ de facto divorce” under the legal system of the Republic of Korea where the so-called “ de facto divorce” is established, but there is no agreement between the spouse on divorce (including an agreement to report divorce). However, there is no report on divorce.

Therefore, even if a legal spouse is in a state of existence of a legal marriage and a de facto marital relationship for a considerable period of time without explicitly raising an objection against the legal spouse even though he/she knows the de facto marital relationship of the other spouse (a request to terminate a de facto marital relationship) or not requiring the termination of a legal marital relationship, insofar as the agreement of divorce between the legal spouse to resolve the legal marriage is not deemed explicitly and implicitly and explicitly, the legal divorce relationship shall not be readily concluded as a de facto divorce (i.e., the so-called “ de facto de facto marital relationship” in which the legal marriage relationship and a de facto marital relationship are in existence, unless it is deemed that there is an agreement of divorce between the legal marriage spouse explicitly and explicitly and implicitly, (ii) if there is a so-called “ de facto marital relationship” in which the legal divorce relationship and a de facto marital relationship are in existence, then the de facto marital relationship to be exceptionally protected under the “ de facto marital relationship” and the “Prohibition of Big” doctrine

㈏ 그런데 이 사건에서, 망인이 소외 2와 법률상 혼인중인 1978. 4.경부터 이혼신고를 마친 후인 2002. 12.경까지 24년이 넘는 기간 10차례 주민등록지를 옮기면서 번번이 소외 2를 처로서 함께 전입신고를 마친 점, 그 기간 중 망인이 소외 2와 동거하면서 부부생활은 하지 않았다고 하더라도 소외 2에게 거주할 곳과 생활비를 제공하여 주어 배우자에 대한 부양의무는 일부나마 책임지고 있었던 점, 망인이 원고와 사실상 혼인관계에 있고 그 사이에 두 명의 딸을 출산하기까지 하였으면서도 그들을 위하여 20년 이상 호적 정리를 하지 않고 있었다는 것은, 소외 2와의 법률상 혼인관계를 종료할 의사가 없었음을 나타내는 것이고, 설사 망인이 법률혼을 해소할 의사가 있었다고 하더라도 상대방 배우자인 소외 2까지 그에 응하여 상호간에 이혼 의사의 합치가 이루어졌다고 볼 수는 없는 점 등에 비추어 보면, 망인이 소외 2와 이혼신고를 마칠 때까지 그들 사이의 혼인관계가 ‘법률상 형식적으로만 존재하고 사실상 해소된 상태’에 있었다고 볼 수 없다.

Therefore, the marital relationship between the plaintiff and the deceased is nothing more than a de facto marital relationship with the non-party 2 until the time when the deceased reported a divorce after the age of 61. Thus, the plaintiff does not constitute a spouse who was in a de facto marital relationship protected under the Military Pension Act.

㈐ 이에 대하여 원고는 “비록 종래 중혼적 사실혼 관계에 있었다고 하더라도, 망인이 사망 전에 법률혼을 해소하고 원고와 정식으로 혼인신고를 하여, 망인의 사망 시점에는 원고가 유일한 법률상, 사실상 배우자가 되었으므로, 그에 대하여 유족연금수급권을 인정하는 것이 타당하다”고 주장한다.

However, as seen above, the principle that a de facto marital marriage shall not be protected unless the de facto marital marriage is a de facto divorce (i.e., a de facto marital marriage) applies not only to cases where a spouse has the right to receive a survivor pension under the Military Pension Act if the legal divorce and de facto marital marriage exist at the time of death of a soldier, etc., but also to cases where a spouse is determined as a person who meets the requirements for bereaved family under the Military Pension Act (which had been married before the age of 61 of the deceased), as well as to determine whether the spouse satisfies the requirements for bereaved family under the Military Pension Act (which had been married before the age of 61 of the deceased). If there is a separate legal spouse to receive the de facto survivor pension (i.e., whether there is a conflict of the right to receive pension), it is difficult to make a judgment different from the legal protection of the deceased’s spouse under the ex post facto marital marriage by the time of death of the deceased and the time of divorce between his spouse and his spouse, as well as to the purport of the provision of the Military Pension Act and the social order of the deceased’s pension.

(3) If so, the defendant's disposition that the plaintiff did not become a beneficiary of the survivor pension of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and therefore the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Lee Jae-in (Presiding Judge)