[Defendant-Appellant] Plaintiff (Law Firm Doz., Attorney Do-Appellee)

The Government Employees Pension Service

June 3, 2010

Seoul Administrative Court Decision 2009Guhap31090 Decided December 10, 2009

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The non-approval decision made by the defendant on February 3, 2009 by the plaintiff 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 disposition;

The following facts may be acknowledged as either in dispute between the parties or in accordance with the evidence Nos. 4-1, No. 1, and No. 2 of the evidence No. 4-1, No. 1, and 2.

A. On August 31, 2003, Nonparty 1 (hereinafter “the deceased”) retired from the position of professor at ○ University and died on January 16, 2009 while receiving a retirement pension from the Defendant.

B. On January 3, 2009, the Plaintiff filed an application for succession to a survivor pension on the ground that the Plaintiff constitutes the deceased’s spouse as prescribed by Article 3(1)2(a) of the former Public Officials Pension Act (amended by Act No. 9905 of Dec. 31, 2009; hereinafter the same), and the Defendant on February 3, 2009 against the Plaintiff on the ground that “the Plaintiff was in a marital relationship between the deceased and his wife, and there is no objective evidence to deem that a de facto marital relationship with the deceased is not sufficient” (hereinafter the “instant disposition”).

2. Relevant statutes;

It is as shown in the attached Form.

3. The parties' assertion

A. The plaintiff

The plaintiff is a spouse of a survivor pension who is a beneficiary of a survivor pension because he/she was in a de facto marital relationship with the deceased from around 195 to the death of the deceased

B. Defendant

Article 809(2) of the former Civil Act (amended by Act No. 7427 of Mar. 31, 2005) which was enforced at the time when the deceased was in a de facto marital relationship even though the plaintiff and the deceased were in a de facto marital relationship. Article 809(2) of the former Civil Act prohibits a de facto marital relationship between a prison and a wife, and the case of violation thereof is null and void (Article 815 subparag. 2 of the former Civil Act). The above provision on grounds of nullity of marriage (Article 815 subparag. 2 of the former Civil Act). Since de facto marital relationship in violation of the provision on de facto marital relationship constitutes null and void marriage, the plaintiff cannot be protected as a de facto marital relationship. Thus, the plaintiff does not constitute a person who was in a de facto marital relationship at the time

4. Determination on the legitimacy of the disposition

A. Criteria for determination

(1) Article 3(1)2(a) of the former Public Officials Pension Act includes not only a spouse under the Act on the Report of Marriage at the time of the public official’s service but also a “person in a de facto marital relationship.” In light of the purpose and purport of the Public Officials Pension Act that contributes to the stabilization of the livelihood and the improvement of the welfare of public officials and their bereaved family members, a person in a de facto marital relationship who is not recognized as a legally marital relationship should be protected as a person in a de facto marital relationship, since he/she has not reported marriage while having the substance of marriage.

(2) As in the instant case, whether a wife, who is a public official, is deemed a spouse under the Public Officials Pension Act should be reasonably interpreted in consideration of not only the concept of spouse under the general civil law, the purpose of the Public Officials Pension Act, the purport of having pension, and the purport of Article 3(1)2(a) of the former Public Officials Pension Act, as well as the purport of the provision of Article 3(1)2(a) of the former Public Officials Pension Act. In addition, in order to grant a legal effect equivalent to a de facto marital relationship, on the other hand, respecting the substance of a marital relationship formed between the parties, but on the other hand, whether such de facto marital relationship is worth

(b) Fact of recognition;

The following facts may be acknowledged by taking into account the following facts: Gap evidence 2, Gap evidence 4-1, 2, 5-1 through 3, Gap evidence 6, Gap evidence 7-1, 2, Gap evidence 8-1 through 3, Gap evidence 9-1 through 3, Gap evidence 10, 11, Gap evidence 12-1, 2, Eul evidence 13, Eul evidence 4 through 7, the testimony and images of non-party 3, the testimony of non-party 4 through the non-party 7, and the fact-finding results of the fact-finding to the director of the regional headquarters of the National Health Insurance Corporation of the first instance court.

(1) The Deceased was married with Nonparty 2, who is the Plaintiff’s father, and was 2 South and North Korea between them, and Nonparty 2 died on January 13, 1992.

(2) Since the deceased was appointed as the professor of ○ University, he was living in the military mountain in Korea, and from around 195, he was living in Seoul with his family in the weekend, and settled in the military mountain since 1995.

(3) Since 1993, the unmarried Plaintiff was in the Seoul House of the Deceased, and Dominced to live together in the Han House. Around 1995, the Plaintiff was in the military industry with the Deceased and entered into a marital relationship with the Deceased.

(4) The Deceased introduced the Plaintiff as the wife of the Deceased in a school event or a group of the couple’s and couple’s groups, etc., and the son of the Deceased knew the Plaintiff as the wife of the Deceased.

(5) The Plaintiff, along with the deceased, has been living together with the deceased’s income and pension. The Plaintiff completed the move-in report on February 22, 2002 with the military production house of the deceased, and continued to reside in the said military production house even after the death of the deceased.

C. Determination

(1) First of all, according to the above facts of recognition, the plaintiff had a marital relationship with the deceased from around 1995 to January 2009, and it is reasonable to view that there was a subjective agreement between the plaintiff and the deceased with the intention of marriage and there was a substance of marital life, which is objectively a marital life.

(2) Furthermore, considering the following circumstances, it is difficult to view that the actual marital relationship between the Plaintiff and the Deceased is obviously contrary to the order of the marriage law, in light of the overall purport of the evidence admitted earlier.

① Article 809(2) of the former Civil Act, which was in force at the time when the deceased was employed, prohibited the marital relationship between the prison and the wife, and where the deceased violated this provision, there was a provision on the grounds of nullity of marriage (Article 815 subparag. 2 of the former Civil Act).

② However, as a matter of legislative policies, the scope of the same-sex marriage and the effect of the violation have been changed in various times according to the historical, cultural, and social background of each country as well as several times. There was a discussion that the prohibition of the same-sex marriage in the Civil Act should be reasonably adjusted by academic circles from the time of its enactment to the extent that the restriction of the same-sex marriage and the effect of the violation. The Constitutional Court made a decision of inconsistency with the Constitution as to the prohibition of the same-sex marriage in the same-sex marriage in around 1998, the amendment of the Civil Act was submitted under the lead of the Government on the grounds that the same-sex marriage between the imprisonment and the wife was revoked on March 31, 2005 (Article 816 subparag. 1 of the amended Civil Act).

③ Although the amendment of the Civil Act was made to change the marital relationship between a prison and a wife on the ground of revocation on the ground of nullity, the time when the deceased retired after his/her retirement. However, in light of the fact that the discussion was widely underway to reasonably coordinate the scope of restrictions on the marital relationship and the validity of the violation, such as changing the marital relationship between the deceased and his/her wife at the time of his/her actual life as a couple, and the amendment of the Civil Act was made thereafter, it is difficult to deem that the de facto marital relationship between the Plaintiff and the deceased is obviously contrary to the order of the Marriage Act stipulated under the Civil Act.

④ In addition, comprehensively taking account of the circumstances such as the background leading up to de facto marital relationship between the Plaintiff and the Deceased, the period of community life, stability and reliability of marital life, the fact that the parties’ families have recognized the substance of marital life, and the need to guarantee the Plaintiff’s livelihood left alone, the need to promote the stability and welfare of the Plaintiff, who is the bereaved family, in this case.

(3) Ultimately, until the death of the deceased, the Plaintiff, who was living as the father and wife for 14 years, and was living on the deceased’s income and pension, shall be deemed to fall under the spouse (a person in a de facto marital relationship) under Article 3(1)2(a) of the former Public Officials Pension Act, and shall be determined as the beneficiary of the survivor’s pension under Article 56(1)1 of the former Public Officials Pension Act.

D. Sub-committee

Therefore, the defendant's disposition that did not recognize the plaintiff as the beneficiary of the survivor pension is unlawful.

5. Conclusion

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

【Related Acts and Subordinate Statutes】

Judges Ko Young-han (Presiding Judge)