Plaintiff (Attorney Woo-hee et al., Counsel for plaintiff-appellant)

The Government Employees Pension Service

June 9, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On July 1, 2016, the Defendant revoked the disposition of paying the divided pension site to the Plaintiff.

1. Details of the disposition;

A. The Plaintiff and the Nonparty were married on April 27, 197, but the agreement was married on March 13, 2014. Around January 2016, the Plaintiff filed a claim for division of property with the Seoul Family Court for the purport that “one-half of the retirement pension that the Nonparty received as a retired public official is divided,” and the Plaintiff and the Nonparty agreed to the following conciliation on March 28, 2016 at the conciliation date:

The Plaintiff and the Nonparty agreed to divide the Plaintiff’s pension as follows. A. With respect to the Plaintiff’s national pension, the Nonparty shall pay the Plaintiff a total of KRW 8.88,00,000 to the Plaintiff until March 31, 2016, and with respect to the pension after April 1, 2016, 50% of the previous pension shall be divided to the Nonparty. However, with respect to the Nonparty’s public officials pension, 20% shall be divided to the Plaintiff only for the pension after April 1, 2016.

B. On June 23, 2016, the Plaintiff filed an application with the Defendant to the effect that “20% of the retirement pension to be received by the person alienated shall be paid to the Plaintiff in installments.” However, on July 1, 2016, the Defendant rejected the Plaintiff’s application on the ground that “the special provision on the payment of divided pension under Article 46-4 of the Public Officials Pension Act (division of divided pension) applies to the Plaintiff on June 22, 2015, and that the special provision on the payment of divided pension applies only to the person whose cause for payment occurred after January 1, 2016, the enforcement date thereof, and thus, it does not apply to the Plaintiff who was divorced on March 13, 2014 (hereinafter “instant disposition”).”

C. The Plaintiff dissatisfied with the instant disposition and filed a request for review with the Public Official Pension Benefit Review Committee, but was dismissed on September 8, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 2, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 46-4 of the Public Officials Pension Act provides that "Where the division of pension has been separately determined pursuant to Article 839-2 or 843 of the Civil Act, notwithstanding Article 46-3, the division of pension shall be governed by it." Thus, regardless of whether the requirements prescribed in Article 46-3 of the Public Officials Pension Act have been met before the enforcement of the Public Officials Pension Act, the defendant shall pay the divided pension pursuant to Article 46-4 of the Public Officials Pension Act if the division of pension has been determined by mediation after the enforcement of the

As in the disposition of this case, requesting the fulfillment of all the requirements of Articles 46-3 and 46-4 of the Public Officials Pension Act after the enforcement date of the amended Public Officials Pension Act is not only inconsistent with the wording of "Article 46-4 of the Public Officials Pension Act," but also discrimination against those who have already been divorced before the enforcement date of the amended Public Officials Pension Act without reasonable grounds, and infringement of fundamental rights, such as human dignity and value, guarantee of private property rights, and right to live human beings.

B. Relevant statutes

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

C. Determination

1) Article 46-3(1) of the Public Officials Pension Act, newly established by Act No. 13387, Jun. 22, 2015, newly established Article 46-3(1) of the same Act, provides that “If a spouse has been divorced with his/her spouse for at least five years during the period of marriage as a public official, a person who was his/her spouse shall be a beneficiary of a retirement pension; and ③ if a former spouse satisfies three of the 65 years of age, a public official’s retirement pension may be divided during his/her lifetime and receive a certain amount of pension; and Article 46-4 of the same Act provides that the amount of the above divided pension shall be the amount calculated by equally dividing the amount of pension corresponding to the period of marriage among the amount of the retirement pension of the former spouse, and Article 839-2 or 843 of the Civil Act provides that “Where the division of pension has been separately determined pursuant to Article 839-3 of the same Act, the first provision shall apply.”

2) The purpose of the above provision is to strengthen the guarantee of old-age income for those who have been divorced from a public official by recognizing a spouse’s contribution as a couple for the marriage period in which the spouse was a public official and allowing the spouse to receive part of the retirement pension directly. Before the introduction of the divided pension system, the division rate was adjusted in consideration of the expected amount of future retirement pension in the property division stage, or some of the expected amount of the retirement pension was given and received. However, upon the introduction of the divided pension system, the pension system was introduced so that the pension can be divided in the form of pension by accurately dividing the retirement pension. However, the division of property is not necessarily required upon the adoption of the divided pension system (for example, a part of the expected amount of the retirement pension may be paid to the other party in a lump sum and the other party may not receive the divided pension) and according to the content of the division of property, it is understood that Article 46-3(2) of the Public Officials Pension Act has the provisions of Article 46-4 of the Public Officials Pension Act.

In light of the purport of Article 46-4 of the Public Officials Pension Act, it is interpreted that Article 46-4 of the Public Officials Pension Act does not mean that “it shall be paid a divided pension if there is an agreement on division of property or a court decision on the division of a retirement pension regardless of the requirements for payment of the divided pension under Article 46-3 of the Public Officials Pension Act,” but it is interpreted that “in a case where there is an agreement or a court decision on the division of property, such as otherwise determining the division rate or non-payment of the divided pension, barring any special circumstance, it shall be in accordance with the contents of such agreement or decision.” The phrase “Notwithstanding Article 46-3 of the Public Officials Pension Act,” in Article 46-4 of the Public Officials Pension Act means that “it is possible to receive the divided pension, regardless of whether it satisfies the requirements prescribed in Article 46-3 and regardless of the requirements for payment of the divided pension under Article 46-3 of the Public Officials Pension Act.” The interpretation or decision on the division of property has not been accepted even if the following the judgment.

Meanwhile, Article 2(1) of the Addenda provides that a divided pension under the revised provision shall be paid from the person who first caused the cause for payment after the enforcement of the amended Act. This means that a person who first meets the payment requirements under Article 46-3 of the Public Officials Pension Act after the enforcement of the amended Act shall be paid the divided pension (in the case of the National Pension Act, Article 5623 on December 31, 1998; Article 10 of the Addenda provides that a person whose cause for payment of the divided pension under Article 57-2(1) has occurred before this Act enters into force shall not be deemed to have been paid the amount of the divided pension under Article 57-2 and 57-3 on the old age pension benefits after this Act enters into force until the enforcement date of the amended Public Officials Pension Act; Article 2(1) of the Addenda; Article 46-4 of the Public Officials Pension Act shall not be deemed to have been paid before the enforcement date of the amended Public Officials Pension Act, but shall not be deemed to have satisfied the payment requirements under Article 16(3) of the Act.

3) According to these legal principles, the Plaintiff was divorced on March 13, 2014, which was before the enforcement of Articles 46-3 and 46-4 of the Public Officials Pension Act. Thus, even if an agreement was reached on pension division under the Civil Act on March 28, 2016, which was after the enforcement date of the above provision, the provisions of Articles 46-3 and 46-4 of the Public Officials Pension Act are not applicable. Accordingly, the instant disposition is lawful, and the Plaintiff’s claim is without merit.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit, and the costs of lawsuit shall be borne by the plaintiff who has lost. It is so decided as per Disposition.

[Attachment]

Judges Hah Tae-hun (Presiding Judge)