Whether the deceased mother's mother is eligible for condolence money under Article 32-2 (1) of the Military Pension Act even if the deceased mother's mother's guidance (affirmative)

Article 3(1)4(a) of the Military Pension Act recognizes the status of receiving a survivor pension as an “person in a de facto marital relationship” and provides that not only the legal spouse but also the de facto spouse shall be included in the status. In light of the fact that it is difficult to expect that a person who has maintained a mother-child relationship prior to the amendment of the Civil Act (amended by Act No. 4199 of Jan. 13, 1990) should be converted into a legal mother-child relationship by adoption in order to receive the condolence money, it is difficult to expect that the scope of “the lineal ascendant” entitled to the condolence money should be limited to “the lineal ascendant” under the current Civil Act, not to mention that the scope of “the lineal ascendant” subject to the condolence money should be limited to “the lineal ascendant” under the current Civil Act (amended by Act No. 4199 of Jan. 13, 199) and whose kinship is terminated pursuant to the amendment of the Civil Act.

Articles 3(1)4(a) and 10, and 32-2 of the Military Pension Act; Articles 767 and 768 of the Civil Act; Articles 1, 3, and 4 of Addenda to the Civil Act ( January 13, 1990)

Plaintiff

The Head of the Central Governing Province;

October 28, 2010

1. The defendant's disposition rejecting the payment of condolence money against the plaintiff on September 17, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On June 18, 2009, the Plaintiff died of the deceased non-party 2, the deceased non-party 1’s mother, the deceased’s spouse non-party 1’s mother [the deceased was married on July 7, 1965, and Non-party 1’s mother (the mother) is called “non-party 4,” not the deceased; hereinafter “the deceased”), and thereafter, he requested the Defendant to pay condolence money under Article 32-2 of the Military Pension Act.

B. On September 17, 2009, the Defendant rendered a disposition rejecting the payment of condolence money (hereinafter “instant disposition”) against the Plaintiff on the ground that “the deceased is the mother of Nonparty 1, who is the Plaintiff’s spouse, and is not a lineal blood relative or lineal ascendant of his spouse, not a beneficiary of condolence money” (hereinafter “instant disposition”).

C. Since then, the Plaintiff filed a request for review with the Military Pension Benefits Review Committee, but was dismissed on March 10, 2010.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although Article 32-2 of the Military Pension Act does not provide for the scope of lineal ascendants who are eligible for condolence money, the meaning of lineal ascendants cannot be interpreted uniformly in accordance with the current Civil Act, considering the following: (a) although there are no special provisions regarding the scope of lineal ascendants who are eligible for condolence money; (b) there are cases where family members, preferential supply of housing, health insurance, etc. are treated the same as maternal and mother-child relationship; (c) there are no payment of condolence money to the father and mother-child relationship; and (d) the payment of condolence money to the father and mother-child relationship who does not support

However, on December 6, 1983, Nonparty 1, the spouse of the Plaintiff, lived with the Deceased until the time of marriage, and thereafter, the Plaintiff and Nonparty 1 supported the Deceased by paying the money, etc., and at the time of funeral, paid part of the role and funeral expenses as a resident at the time of funeral. Thus, the instant disposition made by the Deceased on the ground that it is not a lineal ascendant of Nonparty 1 should be revoked as it is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) On the other hand, Article 767 of the Civil Act provides that "the spouse, blood relative, and relative by marriage shall be a relative." Article 768 of the same Act provides that "the lineal ascendant and lineal descendant of one's spouse shall be a lineal blood relative, and the lineal descendant of his sibling, the lineal descendant of his sibling, the lineal descendant of his sibling, and the lineal descendant of his sibling shall be a collateral blood relative." Article 4 of the Addenda "Article 4199 and January 13, 1990" provides that "the relationship between the former child and the father, the father, the lineal relative, and the lineal relative and the lineal relative of the deceased, who were the spouse of the deceased, shall be deemed to have disappeared from January 1, 199, pursuant to the amendment of the Civil Act as above, since the amendment of the Civil Act as mentioned above, the relationship between the deceased and the non-party 1 who was the spouse of the deceased shall not be deemed to have ceased to exist at the time of the death of the deceased."

2) However, in full view of the following circumstances, it should be deemed that at least the her mother and child relationship established prior to the amendment of the Civil Act is included in the scope of “a lineal ascendant” as defined in Article 32-2(1) of the Military Pension Act, and thus, the instant disposition taken on a different premise is unlawful.

A) Article 32-2(1) of the Military Pension Act provides that “if a soldier’s spouse or lineal ascendant (other than his/her spouse’s lineal ascendant is supported by a soldier) dies, a death solatium shall be paid to the soldier in question. Such death solatium may be deemed as being donated for the purpose of contributing to the stabilization of the livelihood of the bereaved family (see Supreme Court Decision 92Da2998 delivered on August 18, 192). However, comprehensively taking account of the evidence mentioned above and the purport of arguments in each of the above evidence and evidence No. 4 through No. 7 (including each number), the deceased’s spouse was married with Nonparty 1, his/her father, who is the deceased’s spouse, before he/she reached the age of five, and thereafter, Nonparty 1, his/her spouse, can be recognized as having maintained a substantial mother-child relationship while forming a family community with the deceased and his/her family members, and even if the relationship between the deceased was abolished due to the amendment of the Civil Act.

B) Furthermore, the main reason why the legislators abolished the parent-child relationship under the former Civil Act is that it is difficult to recognize its validity in today’s family life relationship as the product of the family head system, which was taken from the Joseon Dynasty, regardless of the intention of the parties concerned, regardless of the parent-child relationship. It goes against the principle of gender equality. If the parties want to recognize the parent-child relationship, it can obtain the same effect as the parent-child relationship by filing a adoption report if they want to transfer the parent-child relationship, and if they want to do so, it can obtain the effect equivalent to inheritance by donation or testamentary gift (see Constitutional Court Order 2007Hun-Ma1424, Nov. 26, 2009). Thus, it is difficult to view that legislators to exclude the cases where the parent-child relationship was maintained through the abolition of the parent-child relationship under the former Civil Act, thereby maintaining a substantial parent-child relationship as in this case.

C) Article 3(1)4(a) of the Military Pension Act recognizes the status of receiving the survivor pension as an “person in a de facto marital relationship,” and stipulates that the status of receiving the survivor pension includes not only the legal spouse but also the de facto spouse. In light of the fact that it is difficult to expect that the adoption should be converted into the legal mother-child relationship in order to receive the condolence money before the amendment of the Civil Act, it should be interpreted that the scope of “the lineal ascendant” subject to the payment of condolence money is not limited to “the lineal ascendant” under the current Civil Act, but also includes cases where the relationship under the Civil Act is extinguished following the amendment of the Civil Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Lee Jong-so (Presiding Judge)