Plaintiff 1 and one other (Seoul Law Firm Yang Hun-Law, Attorneys Kim Do-hn, Counsel for plaintiff-appellant)

Head of the National Armed Forces Administration

November 21, 2017

1. All of the plaintiffs' claims are dismissed.

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

On July 22, 2016, the Defendant’s disposition of not notifying the Plaintiffs of the failure to file an application for registration of the right to receive a survivor pension.

1. Details of the disposition;

A. The Plaintiffs are parents of Nonparty 1 (hereinafter “the deceased”) in reserve service, who died on September 14, 1992. Nonparty 3, who married with the deceased on April 30, 1990, is the spouse at the time of the deceased’s death. Nonparty 4 was born on October 22, 1991 with the deceased and Nonparty 3’s children.

B. Nonparty 3 was paid monthly survivor pension from October 1992 to June 2016 after the deceased’s death on duty.

C. Around July 4, 2016, the Plaintiffs re-entered to the Defendant on March 30, 2006, and Nonparty 4 lost the right to receive a survivor pension as of October 22, 2009, and filed an application for registering the Plaintiffs as the subject of transfer of the right to receive a survivor pension. On July 22, 2016, the Defendant rejected the said application for registration on the ground that the Plaintiffs’ exercise of their right to receive a survivor’s right to receive a survivor’s right to receive a survivor’s right to receive a survivor for five years as prescribed by the Military Pension Act (hereinafter “instant disposition”).

[Ground of recognition] The fact that there is no dispute, Gap's evidence 1 through 6, 8-1 and 2, and the purport of whole pleading

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

For the following reasons, in the case of the Plaintiffs, it cannot be deemed that the Plaintiffs constitute “when they did not exercise the right for five years from the date on which the grounds for the payment of benefits occurred” under the main text of Article 8(1) of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “former Military Pension Act”).

(i) Chapter 1;

The main text of Article 8(1) of the former Military Pension Act does not apply to the Plaintiffs. “The date on which the ground for the benefits occurred” in the main text of Article 8(1) of the former Military Pension Act refers to the date on which the facts constituting the basis for the benefits accrued (the date on which the Deceased died in this case). In addition, inasmuch as the most senior beneficiary exercised his right within the above period, the junior beneficiary is naturally transferred his right when the senior beneficiary lost his right pursuant to Article 29(2) of the former Military Pension Act. Therefore, in a case where the transferee of his right due to the loss of the senior beneficiary’s right makes a claim, there is no room for application of the above provision. In this case, once Nonparty 3 exercised his right, such as receiving the bereaved family benefits from October 192, 192 within five years from the date on which the Deceased died, the entitlement to the survivor pension was transferred to Nonparty 4 on March 30, 2006, and the Plaintiffs were transferred to each of the Plaintiffs on October 22, 2009.

(ii) Chapter 2;

Even if the main sentence of Article 8(1) of the former Military Pension Act applies to the Plaintiffs, “the date on which the grounds for the payment of benefits occurred” refers to the date on which the right to receive benefits occurred (the date of the pension arrival every month in this case). Thus, it cannot be deemed that the right to receive a survivor pension within five years retroactively from the date of filing a request for transfer

(iii) Chapter 3;

Even if the main text of Article 8(1) of the former Military Pension Act applies to the Plaintiffs, the Plaintiffs could not exercise the right to receive benefits until June 10, 2016, where Nonparty 3 was able to report a marriage in Korea and submit a certificate as to the record of family relations. Therefore, the extinctive prescription under the above provision should not run until the time of the application.

(iv) Chapter Four.

Nonparty 3 received the monthly survivor pension until June 2016. This is to exercise the right to receive the survivor pension by designating Nonparty 3 as a deceased person or an agent. Therefore, in the case of the Plaintiffs, it cannot be deemed that the Plaintiffs’ right to receive the survivor pension falls under “when the Plaintiffs did not exercise the right to receive the survivor pension.”

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Interpretation of the relevant statutes

According to Article 26(1)3 of the former Military Pension Act, when a person who is or was a soldier dies in the line of duty due to a disease or injury caused by official duties, the bereaved family is required to pay the bereaved family. However, according to Articles 1, 3(1)4, and 29 of the former Military Pension Act, the survivor pension system aims to contribute to the stabilization of the livelihood of the bereaved family and the improvement of the welfare of the bereaved family by paying appropriate benefits to a soldier who died after faithfully served for a considerable period of time, or who died in good faith while serving for a considerable period of time. The purpose of the survivor pension system is to contribute to the stabilization of the livelihood of the bereaved family and the improvement of the welfare of the deceased (including a case of de facto marital relationship) by a person who is or was a grandchild of the deceased soldier, and the person who is entitled to receive the survivor pension, who is a soldier’s child or grandchild, has the right to receive the survivor pension beyond 18 years of age, and the right to receive the survivor pension is lost when the deceased soldier’s child or grandchild’s grandchild was removed.

Meanwhile, according to Articles 3(1)4, 6, and 10(1) of the former Military Pension Act, the term “bereaved family” refers to the spouse, children, and parents who were supported by a beneficiary at the time of his/her death. The priority order is the order of property inheritance, but when a person who has a right loses his/her right, the right shall be transferred to the person having the same order of priority or the person having the next priority in property inheritance. In addition, Articles 53 and 56 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 22151, May 4, 2010) provide for the following documents: (a) where a person who acquired a right to receive a survivor’s pension due to the loss of a senior beneficiary’s right to receive a survivor’s right to receive a survivor’s pension, even if a senior beneficiary acquires a survivor’s right to receive a survivor’s pension due to his/her loss of a senior beneficiary’s right to receive a survivor’s right, the right shall be determined by the Minister of the Minister of National Defense.

In full view of the aforementioned legal principles and the relevant provisions, it is reasonable to interpret Article 8(1) of the former Military Pension Act to mean “the date on which a cause for the benefit occurred” as the starting point of the extinctive prescription period, rather than simply “the date on which a cause for the benefit occurred” to mean “the date on which a cause for the benefit occurred to the person entitled to the benefit.”

2) Determination as to the first proposal

The above basic facts, evidence Nos. 1 through 6, and evidence Nos. 9-1, together with the overall purport of the pleadings, and the following facts or circumstances, namely, ① Nonparty 3, who was determined as the beneficiary of a survivor pension in relation to the death of the deceased, lost the entitlement to a survivor pension on March 30, 2006, and Nonparty 4, who was entitled to a survivor pension as the same person with the same order, lost the entitlement to a survivor pension on October 22, 2009 without exercising his/her right. ② Accordingly, the Plaintiffs, who were the parents of the deceased, became entitled to a survivor pension in relation to the death of the deceased at that time, became entitled to a survivor pension in relation to the death of the deceased, and ③ The Plaintiffs claimed a survivor pension before the lapse of five years from Oct. 22, 2009, considering the fact that the Plaintiffs’ entitlement to a survivor pension should have been transferred on June 22, 2016.

3) Determination as to the second proposal

The Plaintiffs asserts to the effect that the extinctive prescription period of entitlement to a survivor pension should be calculated monthly. However, in light of the fact that Article 8(1) of the former Military Pension Act does not stipulate the starting point of the extinctive prescription period of entitlement to a survivor pension as “the date on which the entitlement to a survivor arises” but provides “the date on which the entitlement to a survivor benefits arises” and Article 8(1) of the former Military Pension Act provides as “the date on which the entitlement to a survivor benefits arises” and that if Article 8(1) of the former Military Pension Act provides as “the extinctive prescription period of entitlement to a survivor benefits”, it would be contrary to the purport of the extinctive prescription system in order to adjust the uncertain state of legal relations and promote legal stability, it is reasonable to deem that the extinctive prescription period as the starting point of counting the extinctive prescription period under Article 8(1) of the former Military Pension Act is as “the date on which the entitlement to a survivor

4) Determination as to the third proposal

The Plaintiffs asserted that the period of prescription does not run since they could not request the transfer of a survivor pension until June 10, 2016. However, the evidence submitted by the Plaintiffs alone is insufficient to recognize the circumstance that the Plaintiffs could not know the fact that Nonparty 3 remarriedd and reached the age of 18, or that Nonparty 4 could not submit the supporting material, and there is no other supporting evidence. The Plaintiffs’ assertion on this part cannot be accepted.

5) Determination as to Section 4

The Plaintiffs asserted that, as long as Nonparty 3 claimed for a survivor pension and received the survivor pension, the Plaintiffs should also be deemed to exercise the right to receive the survivor pension through the exercise of Nonparty 3’s right. However, since the deceased’s spouse and parents fall under separate bereaved family members (Article 3(1)4 of the former Military Pension Act), it is difficult to view that the Plaintiffs, a parent, exercised the right to receive the survivor pension solely on the ground that Nonparty 3, a spouse, exercised the right to receive the survivor pension. The Plaintiffs’ assertion on

3. Conclusion

Since the plaintiffs' claims are without merit, all of them are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Jin-man (Presiding Judge)