Plaintiff (Supplementary officer of the public-service advocate)

National Pension Management Corporation

March 20, 2009

Changwon District Court Decision 2008Guhap257 Decided October 2, 2008

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant's disposition rejecting the payment of a disability pension against the plaintiff on August 20, 207 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the instant disposition

The following facts are not disputed between the parties, or recognized by each entry in Gap evidence 1, Eul evidence 1-1, Eul evidence 6-1, Eul evidence 6-2:

A. The Plaintiff becomes an individually insured person of the National Pension from April 1, 1999, and became a workplace insured person of the National Pension from May 21, 2002. As such, since the Plaintiff became a national pension insured person, the Plaintiff did not actually pay the pension premium from July 3, 2002.

B. Meanwhile, since June 3, 2000, the Plaintiff was treated with a mental disorder on an irregular basis whenever symptoms increase due to depression, etc.

C. Around July 25, 2005, the Plaintiff filed a claim for the payment of disability pension with the Defendant on the ground that the Plaintiff had a mental disability of the third degree of disability under Article 29 of the Act on Welfare of Persons with Disabilities, and that there was a mental disability due to depression on July 24, 2007.

D. Accordingly, on August 20, 2007, the Defendant rendered a decision that the Plaintiff would not pay a disability pension under Article 72-2 of the former National Pension Act (amended by Act No. 8541, Jul. 23, 2007; hereinafter the “former Act”) to the Plaintiff, pursuant to Article 58(2) of the former National Pension Act (amended by Act No. 8541, Jul. 23, 2007; hereinafter the “former Act”). On June 4, 2002, when two years have passed from Jun. 3, 2000, the first date for the Plaintiff’s perjury (hereinafter the “the instant disposition”). As of the base date for the assessment of disability, the Defendant deemed that the Plaintiff fell under class 4-10 as of the base date, but on the ground that the Plaintiff did not have paid the pension premium (hereinafter the “instant disposition”).

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

For the following reasons, the Plaintiff asserts that the instant disposition is unlawful since it does not constitute grounds for restricting payment of pension contributions at the time of occurrence of disability pension benefits, which is grounds for restricting payment due to the unpaid pension contributions under Article 72-2 subparag. 1 of the former Act.

(A) From June 3, 200 to the date of the determination of the above grade by Defendant’s assertion, the Plaintiff only received at least once and twice medical treatment in one year and lived normally. As such, it cannot be deemed that there was a mental disorder of class 4 of disability at the base date of the determination of the grade, and it should be deemed that July 24, 2007, which is the date of the request for payment of the Plaintiff’s disability pension pursuant to Article 58(2) of the former Act, should be deemed as the base date of

(B) Even if not, the Plaintiff, at the time of the insured’s national pension policy, was punished due to the reason for exception to the payment of the pension premium under Article 77-2 of the former Act, and was not actually paid the pension premium. At the time of the insured’s national pension policy, the Plaintiff was actually paid the pension premium on July 4, 2002, prior to the due date.

(2) The defendant's assertion

In light of the following circumstances, the Defendant asserts that the instant disposition is lawful, since the Plaintiff’s ground for restricting the payment of a disability pension under Article 72-2 subparag. 1 of the former Act constitutes a ground for restricting the payment

(A) In light of the following: (a) the Plaintiff was diagnosed with a depression for the first time on June 3, 200; (b) continued to receive a psychiatrist even thereafter; and (c) the Defendant adviser presented the Plaintiff’s opinion that the Plaintiff had a mental disorder of class 4 with a disability on June 4, 2002, which is the base date for the said rating; (d) in the case of the Plaintiff, it shall be deemed that there was a mental disorder of class 4 of disability on the base date for the said rating after two years from the beginning date under Article 58(2) of the former Act

(B) "Where no pension premium was paid" under Article 72-2 subparagraph 1 of the former Act refers to a case where the pension premium was actually paid at the time of the occurrence of a disability pension after joining the National Pension regardless of the grounds for exception to the payment of the pension or the arrival of the time limit for payment of the pension premium.

(b) Fact of recognition;

The following facts are not disputed between the parties, or acknowledged by comprehensively taking account of the descriptions of Gap evidence 3, 4, Eul evidence 2-2, Eul evidence 3, Eul evidence 4-1, 2, 3, Eul evidence 5, Eul evidence 6-2, Eul evidence 7, and the whole purport of arguments.

(1) Status of the Plaintiff’s subscription to national pension and pension contributions payment

(A) On January 1, 1988, the Plaintiff first subscribed to the National Pension, but was disqualified as a workplace-based insured person on October 2, 1997, and thus returned KRW 10,269,210,00 from the Defendant during the subscription period from January 1, 198 to October 2, 1997.

(B) On April 1, 199, the Plaintiff joined the National Pension Scheme as an individually insured person on April 1, 199 and maintained eligibility as an insured person until May 20, 2002, but did not pay the pension premium during the above period as an exception to pension premium payments.

(C) From May 21, 2002, the Plaintiff acquired the eligibility as a workplace-based insured person as a member of the National Pension Service from May 21, 2002. On June 3, 2002, the said company reported and paid the Plaintiff’s monthly pension contributions on July 4, 2002.

(D) On July 9, 2002, the Plaintiff maintained the eligibility of the National Pension Scheme or an individually insured person as a workplace-based insured person or workplace-based insured person until recently since the withdrawal of the above company. In the meantime, most of the contributions have been paid except that of the monthly contributions.

(2) The Plaintiff’s medical records

(A) On June 3, 200, the Plaintiff first received a mental diagnosis and treatment at ○○ Hospital due to the lack of mind and fluences frequently.

(B) After December 31, 2001, the Plaintiff received 7 times more medical treatment, and received 3 times more medical treatment from around 2001 to June 4, 2002, and has received regular medical treatment so far.

(C) Meanwhile, on April 29, 2002, the Plaintiff acquired a certificate of hazardous material management technician (Grade IV) and a Class-I driver's license on December 1, 2002.

(D) The Plaintiff’s opinion on the medical specialist, who is the Defendant advisory doctor, stated that the Plaintiff’s treatment continues as of June 4, 2002 after the first diagnosis of the instant injury and received a drug treatment for the purpose of controlling the symptoms, and that the said symptoms affect daily life, and thus falls under class 4 of the disability grade.

C. Relevant statutes

It is as shown in the attached Form.

D. Determination

In principle, administrative disposition is based on the amended Act and subordinate statutes enforced at the time of the disposition, unless otherwise provided by the transitional provisions of the newly amended Act and subordinate statutes.

The Plaintiff filed a claim for payment of a disability pension on July 24, 2007, and the Defendant issued the instant disposition on August 20, 2007. As such, in principle, it shall be governed by the National Pension Act (amended by Act No. 8541, Jul. 23, 2007; hereinafter “Revised Act”) which was enforced on August 20, 207. However, if a person who was suffering from a disease or injury under Article 67(2) of the amended Act fails to completely recover after one year and six months from the first date, the degree of disability shall be determined on the basis of the date one year and six months after the first date: Provided, That if a person who was not entitled to a disability pension on the date one year and six months after the first date becomes the subject of a disability pension before he/she reaches the age of 60 due to aggravation of the disease or injury, the degree of disability shall be determined on the basis of the date he/she filed a claim.

However, Article 36 (2) of the Addenda to the amended Act, which is a transitional provision, provides that "in applying the amended provisions of Article 67 (2) to a person who has a first diagnosis day before this Act enters into force, if he is disadvantageous to the subscriber compared to the previous provisions, the previous provisions shall apply." Article 58 (2) of the former Act, which is the previous provisions of Article 67 (2) of the amended Act, provides that "in case a person who has suffered a disease or injury as prescribed in paragraph (1) does not completely recover after two years from the first diagnosis, the disability level shall be determined on the basis of the date after the second anniversary, and in case a person who is not entitled to a disability pension on the date after the second anniversary becomes more than 60 years of age due to aggravation of the disease or injury, the disability pension shall be determined on the basis of his request and paid according to the degree thereof, but in case of the plaintiff, the person who had the first diagnosis day before the amended Act enters into force, but it shall not be disadvantageous than the previous provisions of Article 67 (2) of the amended Act.

Therefore, if the plaintiff does not completely recover from the first diagnosis date one year and six months after the first diagnosis date, the defendant determined the degree of disability on the basis of one year and six months after the first diagnosis date, and then examined whether it constitutes a ground for restricting the payment due to the unpaid pension, or if it becomes a beneficiary of a disability pension due to aggravation of the pension, the defendant should determine the degree of disability on the basis of the date on which he/she files a claim, and pay the disability pension accordingly.

Nevertheless, according to Article 58(2) of the former Act, the Defendant determined the degree of disability as of June 4, 2002, which was two years after the Plaintiff’s first diagnosis date, and two years after the first diagnosis date, and issued the instant disposition on the premise that the Plaintiff did not have paid the pension premium at the time when the cause for payment of a disability pension occurred. Accordingly, the instant disposition was unlawful since it was erroneous in the application of the Act and subordinate statutes.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be quoted on the ground of its reasoning, and the judgment of the court of first instance is justified on the ground of its conclusion, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Yoon Jin-man (Presiding Judge) Kim Jong-hee