2018du35155 Demanding revocation of provisional payment of pension in installments

A person shall be appointed.

Law Firm Tae-tae, Counsel for the plaintiff-appellant

Attorney Choi Ma-chul

The Government Employees Pension Service

Seoul High Court Decision 2017 - 70108 Decided January 23, 2018

November 15, 2019

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

The interpretation of statutes ought to be carried out in a way that finds a concrete validity within the extent that does not undermine legal stability. For this purpose, the interpretation of statutes ought to be carried out in a way that is consistent with the ordinary meaning of the language and text used in the relevant statutes. Furthermore, it ought to conform to the request for the interpretation of statutes that is reasonable by additionally using a systematic and logical tin method that takes into account the legislative intent and purpose, the history of enactment and amendment of the relevant statutes, harmony with the entire legal order, relationship with other statutes (see, e.g., Supreme Court Decision 2010Du7604, Oct. 11, 2012).

Article 46-3(1) of the Public Officials Pension Act (wholly amended by Act No. 13387, Jun. 22, 2015; hereinafter referred to as the "Revised Act") enacted on January 1, 2016 is that a person who has served as his/her spouse for at least five years is divorced from his/her spouse during the period of service as his/her spouse (Article 2(2)1), (Article 2(2)1 of the Addenda to the amended Act is a beneficiary of a retirement pension (Article 2(1)2), and 65 years of age (Article 2(2)1 of the Addenda to the amended Act.

From 2016 to 2021, if a person satisfies all the requirements of subparagraph 3, he/she may receive a certain amount of pension (hereinafter referred to as "divided pension") by dividing his/her spouse's retirement pension during his/her lifetime from that time. Article 46-4 provides that "The amount of divided pension shall be the amount calculated by equally dividing the amount of pension corresponding to the period of marriage among the amount of his/her spouse's retirement pension." In addition, Article 46-4 provides that "If the division of pension is separately determined pursuant to Article 839-2 or 843 of the Civil Act, it shall apply."

The language and structure of the above provision, and to the spouse who is divorced from the public official, during the period of service.

Notwithstanding Article 45(2) of the Civil Act, the legislative intent of the pension system established to guarantee a certain level of old age income based on the other party’s entitlement to retirement pension or early retirement pension (see Constitutional Court en banc Decision 2016Hun-Ma54, Apr. 26, 2018) was wholly amended by Act No. 15523, Mar. 20, 2018; and Article 46 of the wholly amended Act was enforced from Sept. 21, 2018, supra, Article 45 of the same Act (Article 45 of the amended Act is the same as Article 46-3 of the amended Act) provides that the scope of the entitlement to retirement pension or early retirement pension shall be determined separately pursuant to Article 839-2 or 843 of the same Act, and that the scope of the entitlement to retirement pension should be determined separately when determining the scope of the entitlement to retirement pension under Article 46 of the same Act, rather than by stipulating that the scope of the entitlement to retirement pension arises separately.

For the reasons indicated in its holding, the lower court determined that the Plaintiff is not entitled to receive the divided pension, as long as the Plaintiff failed to meet the payment age requirement (No. 3) among the requirements prescribed in Article 46-3(1) of the amended Act, even if the division ratio, etc. of pension was determined through the final and conclusive decision of recommending reconciliation in divorce and a lawsuit for division of property

The above determination by the court below is just based on the above legal principles, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the interpretation of Article 46-4 of the amended Act.

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.

Justices Park Jung-hwa

Justices Kwon Soon-il

Justices Lee Dong-won

Justices Kim Gin-soo