Plaintiff (Attorney Ansan-jin, Counsel for the plaintiff-appellant)

The Minister of National Defense

September 17, 2010

Seoul Administrative Court Decision 2009Guhap42175 Decided February 5, 2010

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The defendant's decision to pay the survivor pension to the plaintiff on February 20, 2009 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the arguments in the statements in Gap evidence 1-1, 2, 2, 2, 3, 4, 6, 7, and 11.

A. The non-party 1 (the non-party in the judgment of the Supreme Court) was born on February 15, 1937, and was admitted to the military forces on June 30, 1959, and was married to the plaintiff on November 20, 1964, and was married to three children under the chain of marital life, and was retired from the military on March 31, 1979.

B. On June 15, 1984, the plaintiff and the non-party 1 divorced after the divorce judgment became final and conclusive, and the non-party 1 married with the non-party 2 on July 19, 1984 immediately thereafter. The non-party 1 lived mainly in Busan around the time of divorce with the plaintiff, and the plaintiff lived together with his children in Seoul.

C. On March 29, 2006, Nonparty 1 was divorced from Nonparty 2. On August 2, 2006, Nonparty 1 was married to the Plaintiff again on August 2, 2006, and at the time Nonparty 1 was 69 years of age. Nonparty 1 transferred to the Plaintiff’s domicile on August 3, 2006 immediately after the marriage with the Plaintiff, but returned to the former Busan on November 8, 2007. Nonparty 1 died on January 22, 2009.

D. The Plaintiff filed a claim with the Defendant for the payment of the survivor’s pension under the Military Pension Act following the death of Nonparty 1, but the Defendant rendered a decision on February 20, 2009 on the payment of the survivor’s pension (hereinafter “instant disposition”) on the ground that the Plaintiff’s spouse, who was married after Nonparty 1’s age 61, does not constitute the bereaved family under the Military Pension Act.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff is a spouse supported by the non-party 1 at the time of his death and constitutes a beneficiary of the survivor pension under the Military Pension Act, and thus the prior defendant's disposition is unlawful on different premise.

B. Relevant statutes

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

C. Determination

According to Article 26 (1) 1 of the Military Pension Act, a survivor's pension is paid to the bereaved family when the person entitled to the retirement pension dies, and according to Article 3 (1) 4 (a) of the Military Pension Act, the bereaved family members include the spouse who was supported by the person at the time of the death of the person who was or was a soldier, but the spouse who was married after the retirement of the person who was a soldier is excluded from the bereaved family under the above provision. In this case, as recognized above, the plaintiff was married with the non-party 1 after the retirement of the non-party 1, and therefore, the plaintiff is not the bereaved family under Article 3 (1) 4 (a) of the Military Pension Act.

Furthermore, the issue of whether there is room to view the Plaintiff as the bereaved family member under the above provision on the ground that the Plaintiff had dealt with the non-party 1 during his military service. ① Article 3(1)4(a) of the Military Pension Act only stipulates that the former spouse is a married spouse after his retirement, and the spouse who had been in a marital relationship during his/her service as a soldier does not constitute such exclusion. As such, it is consistent with the literal interpretation that the former spouse is a spouse excluded from the Military Pension Act without distinction as to whether he/she had a marital relationship during his/her service as a soldier. ② Even if his/her spouse was in a marital relationship with the non-party 6 after his/her former spouse, the legal effect arising from the existing marital relationship would be extinguished by divorce, and it would not be deemed that the former spouse would not have been in violation of the Military Pension Act for a certain period of marriage or injury after his/her retirement or for the purpose of maintaining the status of his/her spouse after his/her retirement or retirement.

In addition, we examine whether the Plaintiff’s spouse in a de facto marital relationship falls under Nonparty 1’s bereaved family member. Considering our family law system under which the principle of legal divorce and the prohibition of middle marriage is Daejeon, the purport of Article 3(1)4 of the Military Pension Act included “a person in a de facto marital relationship” in a spouse entitled to a survivors’ pension is to protect the spouse in a case where the Plaintiff actually has marital life and is not recognized as a legal marriage because of the absence of a report of marriage, and it does not intend to protect the de facto marital relationship in competition with the legal marriage. If there is a legal spouse separate from the spouse, the de facto marital relationship with the spouse cannot be deemed to fall under “ de facto marital relationship” under the Military Pension Act (see Supreme Court Decision 2006Du18584, Feb. 22, 2007; Supreme Court Decision 2006Du18584, Apr. 19, 201).

Therefore, with respect to the non-party 1, the plaintiff is not a spouse who is a bereaved family member under Article 3 (1) 4(a) of the Military Pension Act as to the non-party 1, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair, the defendant's appeal is accepted and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Kim Byung-chul (Presiding Judge)