209Guhap40391 Disposition of revocation of Disposition

100

The Government Employees Pension Service

February 23, 2010

March 18, 2010

1. The defendant's disposition of non-eligible family members against the plaintiff on July 9, 2009 shall be revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. Park 00, who was born on October 00, 1957 and worked in the Seoul Eastern District Office around 2002, died on April 15, 2009, when he retired and was paid retirement pension (hereinafter referred to as "the deceased's food") and died as a traffic accident.

B. On November 29, 198, the Plaintiff reported marriage with the Deceased on November 29, 1988, and she lives together with her marbling0 (living on April 19, 1989) with her marbling, and reported divorce on April 6, 2006.

C. On May 26, 2009, the Plaintiff asserted that he constitutes the deceased under Article 3(1)2(a) of the Public Officials Pension Act and his spouse in a de facto marital relationship with the deceased under Article 3(1)2(a) of the same Act, and filed an application for succession to the survivor’s pension claiming the payment of the survivor’s pension under Article 56(1)1 of the same Act. Accordingly, on July 9, 2009, the Defendant issued a notification to the Plaintiff on the ground that “the Plaintiff, after having divorced with the deceased, the Plaintiff had the main possession on the resident registration card, and there is no evidence to recognize a de facto marital relationship, and thus, it cannot be recognized as a bereaved family member under the Public Officials Pension Act (hereinafter “instant disposition”).

[Ground of Recognition: Facts without dispute, Gap evidence 1, Gap evidence 2-1 through 4, Gap evidence 3, Eul evidence 1, the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, on April 6, 2006, was married on April 6, 2006 due to the issue of the deceased’s debt, but continued to live together and maintain a de facto marital relationship. Therefore, the Plaintiff, as a spouse in a factual marital relationship with the deceased, constitutes a beneficiary of the survivor pension prescribed in the Public Officials Pension Act, and thus, the Defendant’s disposition taken on a different premise is unlawful.

(b) Related statutes;

As shown in the attached Form.

(c) Facts of recognition;

(1) The Deceased retired at around 2002, and worked as vice president at the 00 comprehensive construction shares company company company located in Seocho-gu Seoul Metropolitan Government Seocho-gu (hereinafter referred to as “non-party company”) and jointly and severally guaranteed the non-party company’s loan obligations. The non-party company was faced with management difficulties since 2004, and the deceased also experienced economic difficulties.

(2) On November 12, 2004, the deceased was apprehended to be subject to compulsory execution from creditors on November 12, 2004, on the ground that the deceased's debt (the debt as a joint guarantor of the non-party company) against the Bank of Korea and the 00 Mutual Savings Bank (the debt as a joint guarantor of the non-party company), the indemnity against the Credit Guarantee Fund (the debt as a joint guarantor of the non-party company), and the collateral security against the Samsung Life Insurance Co., Ltd. with respect to the Samsung Life Insurance Co., Ltd., Ltd., and thus, he completed the transfer of ownership, etc. in the future of the plaintiff on the ground of donation on November 2, 2004.

(3) On November 10, 2004, immediately before acquiring the ownership of the apartment of this case, the Plaintiff moved to the domicile of 00 village 00 - Dong 00 - Dong 00 (hereinafter referred to as "00 apartment") in the domicile of the apartment of this case, which had been residing with the Deceased on November 10, 204. The Plaintiff moved to the domicile in the resident registration card as follows due to the liability problem until the death occurs.

A person shall be appointed.

(4) Even after the report of divorce, the deceased and the plaintiff continued to reside in the apartment of this case. The neighbors were living in the apartment of this case as they were living in the apartment of this case, and they knew only that they were living together with the married couple, and did not know about the fact that the plaintiff and the deceased did not have any knowledge of the fact that the agreement was married (According to the statement No. 10, based on the record of evidence No. 10, the plaintiff and the deceased were involved in the apartment of this case and did not know about the fact that the agreement was concluded on the same day on December 18, 2004, the lease deposit amount of KRW 60,000,000 and the term of the lease was completed from December 18, 2004 to December 17, 2006, and the lease on a deposit basis was revoked for the same period as the plaintiff and the deceased could not be readily concluded.

(5) Even after around 2007, the Plaintiff and the Deceased continued to engage in the work of the married couple and the married couple. In early 2009, the Deceased, at the time of the Plaintiff’s her mother’s injury, reported the her mother to the her mother, and notified the her mother to the her mother, thereby making a clerical error in the article.

(6) From September 1, 2007 to April 1, 2007, the Deceased joined a private teaching institute for 00 assistant nurses (which seems to have changed to a private teaching institute for 00 assistant nurses around August 2008) and had been receiving benefits of KRW 500,000 to KRW 1.2 million per month. From December 2007 to April 2009, the Deceased transferred approximately KRW 100,000,000 to the Plaintiff’s bank account regularly for about 17 months.

[Ground for Recognition: Facts without dispute, Gap evidence 2-5, Gap evidence 4-2, Gap evidence 5, 6-1 through 4, Gap evidence 7-1 through 3, Gap evidence 8, Gap evidence 9-1 through 3, Gap evidence 10, 11, Eul evidence 2, Eul evidence 3-1 through 3, witness's testimony, whole purport of oral argument]

C. Determination

(1) Article 3 (1) 2 (a) of the Public Officials Pension Act provides that "a person who has been in a marital relationship at the time of his/her employment" as "spouse entitled to a survivor pension" includes a spouse who has been in a marital relationship at the time of his/her employment. This purpose is to protect his/her spouse in fact in a light that is not recognized as a legal marriage because he/she has no report of marriage even though he/she actually has the substance of marriage through a marital life (see Supreme Court Decision 93Nu1497 delivered on July 27, 1993). Therefore, the parties have "the subjective agreement between the parties to marriage" and "the substance of a marital life that can be recognized as a marital life".

If proved, it should be considered that ‘the person who was in a de facto marital relationship' falls under ‘the person who was in a marital relationship.

(2) In full view of the facts acknowledged earlier and the following circumstances revealed in the argument of this case, the Plaintiff is deemed to fall under the spouse who was in a de facto marital relationship with the deceased at the time of the death of the deceased. Therefore, the Defendant’s disposition on the premise that the Plaintiff did not fall under the bereaved family of the deceased under the Public Officials Pension Act is unlawful.

① The Deceased may cause the obligees to be subject to compulsory execution, and thereafter, he had transferred the instant apartment in the instant lawsuit to the Plaintiff, and thereafter, he had a formal divorce with the Plaintiff in order to avoid suspicion of the obligees. However, even after that, the Deceased appears to have lived as a couple in the instant apartment without any separate removal or living support after that time.

② The above circumstances also indicate that the deceased transferred from the apartment of this case, which was the previous residence, to another domicile before the date on which the deceased reported divorce, to the other domicile, and that the deceased transferred almost all of the benefits that the deceased received from the 00 nursing Institute without permission, to the Plaintiff. (The transfer amount of the deceased was considered to have been paid as the child support for a minor child after the divorce, in light of the amount of benefits, it is excessive in view of the amount of benefits, and it appears that the Plaintiff was paid as the living expenses of the Plaintiff).

③ According to the evidence Nos. 3-1 to 3-3, in a lawsuit seeking the revocation of fraudulent act filed against the Plaintiff by the Livestock Bank Co., Ltd., the deceased’s creditor (Yewon District Court 2007No. 36069), the Plaintiff may be found to have asserted that at the time of concluding the donation contract on the apartment between the deceased and the deceased, the marital relationship with the deceased was de facto divorced, and that the Plaintiff entered into the said donation contract on the apartment as part of the division of property in the future. However, as seen earlier, the Plaintiff was a tool to protect the apartment of this case from the creditor’s compulsory execution. In fact, the Plaintiff did not participate in the said lawsuit and appears to have participated in it.

④ On November 10, 2004, the Plaintiff’s moving of 00 apartment units to his resident registration to his domicile was the apartment unit for lease by the above 00 Amart, and thus, it appears that the Plaintiff actually resided as the lessee. Around that time, the establishment of the right to lease on a deposit basis in the apartment unit in this case seems to guarantee the Plaintiff’s right to claim the return of the deposit for Kim Jong-tae, which transferred 00 Amart from the Plaintiff.

3. Conclusion

Thus, the plaintiff's claim shall be accepted on the ground of the reasons.

Judges of the presiding judge 000

Judges 000

Judges 1000

Related Acts and subordinate statutes

(1) The Public Officials Pension Act (amended by Act No. 9905 of December 31, 2009)

Article 3 (Definitions)

(1) The definitions of terms used in this Act shall be as follows:

2. The term "bereaved family member" means any of the following persons who are supported by a current or former public official at the time of his/her death:

(a) Spouse (limited to a person who has been in a marital relationship at the time of his/her employment, and including a person in a de facto marital relationship);

(c) A child (excluding offspring born or adopted after the date of retirement, but an embryo or fetus at the time of retirement shall be born during his/her service;

Women shall be deemed women; hereinafter the same shall apply)

(c) A parent (excluding a parent in cases of adoption after the retirement date);

(d) A grandchild (excluding a grandchild born or adopted after the date of retirement, but an embryo or fetus at the time of retirement shall be born during his/her service;

One grandchild shall be deemed to be a grandchild; hereinafter the same shall apply)

(e) A grandparent (excluding a grandparent in cases of adoption after the date of retirement);

Article 56 (Survivor's Pension, Survivor's Pension Benefits, Survivor's Pension Benefits, and Survivors' Pension Benefits)

(1) Where a person who is or was a public official falls under any of the following subparagraphs, a survivor pension shall be paid: Provided, That a survivor pension shall be paid:

In cases falling under subparagraph 1, when a public official dies while in office, a bereaved family pension supplement shall be paid separately in addition to a survivor pension, and public officials

A beneficiary of a retirement pension or early retirement pension who was an unqualified person dies before the payment of the pension begins;

Where a person dies within three years from the month following the month in which the day before the retirement date falls, a survivor pension special in addition to a survivor pension.

Additional money shall be paid separately.

1. When a person entitled to receive a retirement pension or early retirement pension dies;

2. When a person who is entitled to receive the disability pension dies.

(2) In cases under the former part of the proviso to paragraph (1), when desired by a survivor, the date and time of the survivor pension in lieu of

money shall be paid.

(1) Enforcement Decree of the Public Officials Pension Act (amended by Presidential Decree No. 21974, Jan. 1, 2010)

Article 3 (Criteria, etc. for Recognition of Survivors)

(1) When a person falling under any item of Article 3 (1) 2 of the Act dies of a person who is or was a public official, he/she shall be such person.

The criteria for recognition of facts supported by him shall be as shown in the attached Table 1.

[Attachment 1] Criteria for Recognition of Support by a present or former public official (Related to Article 3)

A person shall be appointed.