(영문) 서울고등법원 2020.6.5. 선고 2019누68987 판결

2. On July 22, 2016, the Defendant’s disposition not to notify the Plaintiff of the fact that he/she did not receive a survivor pension entitlement shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

Order.1)

Reasons

1. Basic facts

A. The So-young C (hereinafter referred to as “the deceased”) died on duty on September 14, 1992. The Plaintiff and A are the parents of the deceased, who married with the deceased on April 30, 1990, and the deceased’s spouse at the time of the deceased’s death. E is a child of the deceased born between the deceased and D.

B. After the deceased’s death on duty, D received the monthly survivor pension from October 1992 to June 201, 2016 through the decision of the Minister of National Defense to pay the survivor pension. However, D remarried on March 30, 2006 and lost the entitlement to the survivor pension, and E lost the entitlement to the survivor pension by becoming the age of 18 October 22, 2009.

C. On July 4, 2016, the Plaintiff and A filed a claim for the transfer of entitlement to a survivor pension with the purport that they would be registered as the subject of transfer of entitlement to a survivor pension on the ground that D and A lost entitlement to a survivor pension as mentioned in the foregoing paragraph (b). On the ground that the Plaintiff and the Defendant did not exercise entitlement to a survivor pension for five years from the date on which E lost entitlement to a survivor pension and the right to receive a survivor pension was extinguished due to the completion of prescription, the Plaintiff rejected the said application for registration against the Plaintiff and A (hereinafter “instant disposition”).

D. Accordingly, the Plaintiff and A filed a request for reexamination with the Military Pension Benefits Review Committee on September 21, 2016, but the Review Committee dismissed the Plaintiff’s claim on the same ground as the instant disposition on January 13, 2017.

E. Meanwhile, A died on September 2, 2017.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 6, Gap evidence 8-1, 2, Eul evidence 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

1) Plaintiff

A) For the following reasons, the Plaintiff cannot be deemed to fall under “where the Plaintiff did not exercise the benefits for five years from the date of occurrence of the grounds for the benefits under the main sentence of Article 8(1) of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “former Military Pension Act”).

(1) The "date on which the ground for the benefits occurred" in the main sentence of Article 8 (1) of the former Military Pension Act refers to the date on which the facts constituting the basis for the benefits occurred (in this case, the date on which the deceased died), and as long as the senior beneficiary exercises his right within the above period, the next senior beneficiary is naturally transferred his right when he loses his right pursuant to Article 29 (2) of the former Military Pension Act, so there is no room for application of the main sentence of Article 8 (1) of the former Military Pension Act in this case. Therefore, as long as D, who is the senior beneficiary, exercises his right to receive the survivors' pension within five years from the date on which the deceased died, the specific entitlement to the survivors' pension shall be transferred to E on March 30, 206, and it was transferred to the plaintiff and A on October 22, 2009, and the plaintiff and A did not make a separate request for transfer from the plaintiff and A, its right shall not be extinguished under the above provision.

(2) Even if the main sentence of Article 8(1) of the former Military Pension Act applies to the Plaintiff, “the date on which the cause for the payment of benefits occurred” refers to the date on which the right to receive benefits occurred (the date of the pension arrival each month in this case). Thus, it cannot be deemed that the monthly entitlement within five years retroactively from the date on which the Plaintiff requested the transfer to the Defendant has expired

(3) Even if the main text of Article 8(1) of the former Military Pension Act applies to the Plaintiff, the Plaintiff could not exercise the right to receive a family relation registration until June 10, 2016, when D filed a marriage report in the Republic of Korea and submitted a certificate as to the record of family relations. Accordingly, the starting point of the extinctive prescription of the Plaintiff’s entitlement to a survivor pension ought to be deemed as 2016, 6,10.

(4) D received a monthly survivor pension by June 2016, which is the Plaintiff’s implied consent.

With delegation, D exercises the plaintiff's right to receive a survivor's pension as a deceased person or representative. Therefore, the plaintiff's right to receive the survivor's pension can not be seen as "when he does not exercise the right to receive the survivor's pension."

B) The Defendant has the authority and duty to investigate the changes in the status of the beneficiary of the pension every year with the authority delegated by the Minister of National Defense pursuant to Article 39 of the Enforcement Decree of the Military Pension Act. It is unreasonable for the Defendant to claim the expiration of the extinctive prescription against the Plaintiff’s entitlement to the survivors’ pension arising from the same cause.

2) Defendant

A) In a case where a cause to lose the right to receive a survivor pension arises, the next beneficiary does not transfer the right to receive the survivor pension as it is, but only acquires the right to receive the survivor pension as its own right after undergoing the procedure for claiming a transfer of the right to receive the survivor pension as prescribed in Article 56 of the Enforcement Decree of the Military Pension Act. Thus, the starting point of the extinctive prescription of the right to receive the survivor pension of the next beneficiary should be deemed to be the date on which the next beneficiary loses the right to receive the survivor pension of the first beneficiary. The Plaintiff filed a claim for a transfer of the right to receive the survivor pension after the lapse of five years from October 22, 2009 who reached the age of 18. As such, the Plaintiff’s right to receive the survivor pension extinguished by the extinctive prescription. Meanwhile, the Plaintiff’s right to receive the survivor pension was also established in the Republic of Korea on March 30, 206 under Article 36 of the Private International Act since D was merely a report filed in the Republic of Korea on June 10, 201016.

C. In addition, the Plaintiff’s claim for the transfer of entitlement to a survivor pension does not necessarily require the submission of a certificate of family relationship record entered in D’s report on family relationship. Furthermore, even after the Plaintiff’s loss of entitlement to a survivor pension, D is merely receiving a survivor pension at will for about ten (10) years without legal grounds, and D cannot be deemed as the Plaintiff’s deceased person or agent. Therefore, the instant refusal disposition is lawful, as the Plaintiff’s entitlement to a survivor pension

B) Although the Plaintiff knew of the grounds for the loss of the right to receive the survivors’ pension, D neglected to receive the survivors’ pension for about ten (10) years, and neglected to exercise the right, the Defendant’s claim for the completion of extinctive prescription does not constitute an abuse of rights against the good faith principle

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Details of the provision regarding the acquisition and transfer of entitlement to a survivor pension and the time of such acquisition

If a person who is or was a soldier dies in the line of duty due to a disease or injury caused by an official duty, the bereaved family member shall be paid a survivor pension (Article 26 (1) 3 of the former Military Pension Act).

The term "bereaved family member" means the spouse, children, parents, grandchildren, grandparents who were supported by a soldier at the time of his death (Article 3 (1) 4 of the former Military Pension Act), the order of priority of the bereaved family members to receive the benefits shall be based on the order of inheritance (Article 12 of the former Military Pension Act), the person entitled to the survivor's pension, the person who is not in the condition of disability prescribed by Presidential Decree, and the person who is not in the condition of disability prescribed by Presidential Decree reaches the age of eighteen, etc. (Article 29 (1) of the former Military Pension Act), the person entitled to the survivor's pension shall lose the entitlement to the survivor's pension (Article 29 (1) of the former Military Pension Act), if there is a person in the same order

Meanwhile, in principle, the right to receive various benefits under the Military Pension Act shall be extinguished by the extinctive prescription if it is not exercised within five years from the date on which the ground for the benefits occurred (Article 8(1) of the former Military Pension Act). In the case of a survivor pension under Article 26(1)3 of the former Military Pension Act, "the date on which the ground for the benefits occurred" refers to "the time when the relevant soldier died while in service due to a disease or injury incurred in the course of performing official duties (see Supreme Court Decision 2007Du18314, Aug. 21, 2008

2) Whether the right to receive a survivor pension transferred from a senior bereaved family member is subject to extinctive prescription

In full view of the contents and structure of the provisions on the survivor pension under the former Military Pension Act, and the legislative intent of the system of the survivor pension with the aim of contributing to the stabilization of the livelihood and the improvement of welfare of the bereaved family by paying appropriate benefits to the bereaved family members, the entitlement to the survivor pension due to the death of a soldier shall be within five years from the date of the death of the soldier, and in a case where specific entitlement to the survivor pension (basic right) occurs upon the decision of the Minister of National Defense by filing a claim for the survivor pension within five years from the date of the death of the soldier, the entitlement to the survivor pension that arises every month may be subject to extinctive prescription, and the specific entitlement to the survivor pension shall not be subject to extinctive prescription under Article 8(1) of the former Military Pension Act independently. The same shall apply to the case where the bereaved family of the next order or the next order is transferred to the bereaved family in accordance with

A) Article 29(2) of the former Military Pension Act provides that a person who has the right to receive a survivor pension shall transfer the right to the mortgagee in the same order or to the mortgagee in the same order of priority when he loses his right. Therefore, it is consistent with the language and text of the above provision to interpret that a person who has the right to receive the survivor pension is transferred to the mortgagee in the same order of priority or to the mortgagee in the same order of priority when he loses his right to receive the survivor pension without mediating a separate decision of the Minister of National Defense. Therefore, if a person who has the right to receive the survivor's right to receive the survivor's right to receive the survivor's right to receive the survivor's right to receive the survivor's right to receive the survivor's right to receive the survivor's right has lost his entitlement to receive the pension under the acquisition of "specific right to receive the survivor's right to receive the survivor's right to receive the survivor's right in the first order of priority and the defendant's decision to receive the survivor's right to receive the survivor's right before

In addition, if the right to receive a specific survivor pension or the bereaved family members of the same rank are legally transferred, it is natural that the monthly entitlement to receive a monthly benefit accrued from such transfer is also transferred to the bereaved family members of the same rank

B) Under the Military Pension Act, a survivor pension is established for the purpose of contributing to the stabilization of the economic life and the enhancement of welfare of the bereaved family by paying the pertinent benefits to the bereaved family members supported by the soldier (Article 1 of the Military Pension Act). It is against the legislative intent of the survivor pension system to ensure that the bereaved family members lose the entire entitlement to the survivor pension because the bereaved family members did not request the transfer of the survivor pension within five years from the date on which the entitlement to the survivor pension was lost. In addition, the fact that other bereaved family members are difficult to easily understand the changes in the status of the bereaved family members in cases where the bereaved family members are different or contact each other. Accordingly, if the State decided to pay the survivor pension with respect to the death of a specific soldier, it is necessary to pay the bereaved family members, who are the legitimate beneficiaries, even if there were changes among the bereaved family members, and the extinctive prescription of the monthly entitlement to the survivor pension has not elapsed,

C) The reason for the existence of the extinctive prescription system is that respect the permanent state of fact, and the locked person is not protected on his/her right, and in particular, the latter’s meaning is strong (see Supreme Court en banc Decision 2015Da232316, Oct. 18, 2018). In a case where any of the bereaved family members exercises his/her right on the death of a specific soldier, it is difficult to deem that the non-exercise of the right to receive a survivor’s pension following the death of the relevant soldier continues for a considerable period of time, and it is necessary to confirm an uncertain legal relationship through the extinctive prescription. Where the bereaved family members completely do not exercise their right to receive a survivor’s right to receive a survivor’s pension, it may not be deemed that the bereaved family members are the locked person on the right to receive the specific survivor’s pension following the death of the relevant soldier. From the perspective of the State or the Minister of National Defense, the payment of survivor’s pension for the same rank or the next order is not new obligation to pay the survivor’s pension, but it is difficult to deem stability or efficient operation.

D) The specific entitlement to a monthly entitlement to a survivor pension is realized by exercising the right to receive a monthly entitlement as a fundamental right derived therefrom. As such, insofar as the monthly entitlement to a specific survivor pension has arrived at the maturity of each month and the entire amount of the monthly entitlement to a survivor pension has not expired by prescription, only the right to receive a specific survivor pension does not have to extinguish by prescription. The specific entitlement to a monthly entitlement to a specific survivor pension has become an independent claim upon the arrival of each month and the period of prescription is applied respectively at the time when the final entitlement to a monthly entitlement to a survivor pension comes at the maturity of each month, and the specific entitlement to a specific survivor pension has lost its significance of existence as a fundamental right. Therefore, there is no need to specifically consider the issue of

3) Disposition of the decision on the claim for transfer of entitlement to survivor pension

Even if a senior bereaved family member is legally transferred the entitlement to a survivor pension at the time of the loss of the entitlement to a survivor pension due to the loss of the entitlement to a survivor pension, the bereaved family member in the same order or the next order can receive the survivor pension only after submitting a claim to transfer the entitlement to a survivor pension to the Minister of National Defense under Article 56 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 22647, Nov. 2, 2010; hereinafter the same shall apply).

The decision of the Minister of National Defense on this issue constitutes an administrative act of "a confirmation as to whether an applicant has a legal effect called the transfer of entitlement to a survivor pension due to the loss of entitlement to a prior bereaved family," and this constitutes the basis for subsequent enforcement of a monthly survivor pension, which is the payment of a monthly survivor pension, and thus, constitutes an action subject to appeal litigation as an exercise of public authority or rejection thereof as a law enforcement with respect to specific facts by an administrative agency (Article 2(1)1 of the Administrative Litigation Act). Therefore, if the Minister of National Defense makes a decision of rejection, he/she shall appeal the decision of rejection by means of filing an appeal against the decision of rejection, and the appellant shall not immediately seek confirmation of the right or payment of the survivor

4) The period and calculation of extinctive prescription of the monthly entitlement to a specific survivor pension

A) The amount of pension benefits under the former Military Pension Act shall be paid on the 25th day of each month from the month following the month in which the ground for the benefits occurred to the month in which the ground for the benefits occurred (Article 17(1) and (4) of the former Military Pension Act and Article 32(1) of the former Enforcement Decree of the Military Pension Act). Therefore, the monthly entitlement of a person who acquired a specific entitlement to a survivor’s pension falls under a claim with a fixed period of time that reaches the respective due date, which has occurred every one month (see Supreme Court Decision 2003Du1028, Mar. 28, 200)

B) Article 8(1) of the former Military Pension Act provides that "the right to receive benefits shall be extinguished by the extinctive prescription in the event of not exercising the right to receive benefits for five years from the date on which the cause for the benefits occurred." This applies to all the rights to receive benefits under the former Military Pension Act. As such, ① In the case of a soldier's death in the line of official duty, the first claim for a survivors' pension under Article 53 of the former Enforcement Decree of the Military Pension Act is not only the abstract survivors' right to receive benefits immediately acquired under Article 26(1)3 of the former Military Pension Act, but also the first claim for the survivors' pension under Article 53 of the former Enforcement Decree of the Military Pension Act and the first claim for the survivors' pension that the first claim for the survivors' pension under Article 29(1) of the former Military Pension Act has been made beginning from the day following the deceased's death in the line of duty, and ③ the first survivors' entitlement to a specific survivor's pension has lost the right to receive benefits for the monthly pension.

C) In full view of the aforementioned legal principles and the relevant provisions, where a senior bereaved family member loses the right to receive a specific survivor's pension due to the occurrence of the causes stipulated in each subparagraph of Article 29(1) of the former Military Pension Act, and the next-order bereaved family member immediately acquires the right to receive a specific survivor's pension under Article 29(2) of the former Military Pension Act, the monthly entitlement to a survivor's pension accrued therefrom shall be extinguished upon the completion of each statute of limitations when he/she fails to exercise the right to receive a specific survivor's pension for five years from each payment date (25th day of each month). In cases where the Minister of National Defense requested a transfer of the right to receive a survivor's pension under Article 56 of the former Enforcement Decree of the Military Pension Act, he/she objectively expressed his/her intent to exercise the right

5) Whether the Plaintiff’s right to receive the survivor pension has expired by prescription

A) The abstract right to receive a survivor’s pension due to the death of the deceased in the line of duty became entitled to a specific survivor’s pension upon receiving a claim for the survivor’s pension from the Minister of National Defense within five (5) years from the date of the death of the deceased. Such specific right to receive a survivor’s pension is legally transferred to the Plaintiff and A pursuant to Article 29(2) of the former Military Pension Act as he/she attains the age of 18 (E on March 30, 2006, and October 22, 2009. Such specific right to receive a survivor’s pension is not subject to the extinctive prescription prescribed in Article 8(1) of the former Military Pension Act independently, and even if E or A did not claim the transfer of the entitlement to a specific survivor’s pension within five (5) years from the date of the transfer of the entitlement to a specific survivor’s pension, the specific right to receive a survivor’s

B) Meanwhile, the Plaintiff and A may receive a monthly survivor pension from November 2009, which is the month following the month in which they acquired the right to receive a specific survivor pension (E becomes 18 years of age). However, since the extinctive prescription of the right to receive a monthly survivor pension has expired since the period of five years since November 25, 2009, each of which was not claimed five years since the period of prescription has expired, the Plaintiff and A may receive the monthly survivor pension only that occurred within five years from July 2016, which was computed by tending from July 2016.

D. Sub-committee

Therefore, the disposition of this case based on the premise that the Defendant’s right to receive the Plaintiff’s survivor pension extinguished by the completion of prescription is unlawful (as long as the disposition of this case is unlawful, it shall not be judged separately as to

3. Conclusion

If so, the plaintiff's claim should be accepted with due reason. Since the judgment of the court of first instance differs from this conclusion, it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the disposition of this case.

Judges

Judges Lee Jae-won

Judges Han Young-young

Judges Sung-ju

Note tin

1) The part against the co-Plaintiff A in the first instance trial was separated and finalized by the declaration of the completion of the litigation prior to the remanding of the case.

2) According to the Private International Act, the requirements for establishment of a marriage shall be governed by the law of nationality of each party (Article 36(1)), and the method of marriage shall be governed by the law of nationality of either party or the law of nationality of either party (Article 36(2) main text).

This provision purports that, in a case where a marriage between Korean people or between Korean people and foreign people is conducted in a foreign country, the method of marriage, namely, the formal requirements for establishment, shall be determined in accordance with the law of the place of marriage, and where a marriage is completed in accordance with the method prescribed by the law of the country, the marriage is effective when the marriage is completed, and even if the party does not report the marriage in accordance with the law of the Republic of Korea, it does not affect the establishment of the marriage, and even if the party reports the marriage in accordance with Articles 34 and 35 of the Act on the Registration, etc. of Family Relationship, it is not a creative report, but a report on the marriage already formed effective (see Supreme Court Decision 94Meu413, Jun. 28, 1994). D is a report on the marriage that has already been made effective (see Supreme Court Decision 94Meu413, Mar. 30, 2006; 200Du5418, May 27, 2019).