207Guhap21051 Revocation of the lump-sum survivors' compensation and unclaimed payment

00

Korea Labor Welfare Corporation

100

October 4, 2007

November 1, 2007

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the cost of participation.

On April 18, 2007, the defendant revoked the disposition of bereaved family's benefits and funeral expenses against the plaintiff on April 18, 200.

1. Details of the disposition;

A. On February 9, 2007, the Deceased died due to brain pressure on February 12, 2007: around 30, 2007, as the head of the Working Group on the 00 Incident Co., Ltd. (hereinafter referred to as the “00 Nos. 13: 13: around 30, 2007, at the work site of the 00 military sewage culvert maintenance project, which was constructed by being unloaded from the Co., Ltd., Ltd., and was under medical treatment due to occupational accidents.

B. On March 19, 2007, the Plaintiff asserted that he was supported by the Deceased at the time of the Deceased’s death and claimed that he was the beneficiary of the survivors’ compensation annuity and claimed for the payment of the bereaved family pension and funeral expenses to the Defendant.

C. On April 18, 2007, the Defendant was the deceased’s legal spouse of the Intervenor joining the Defendant (hereinafter the Intervenor joining the Defendant) and returned the Plaintiff’s claim on the ground that the Plaintiff is only a married person, and that the Plaintiff is not subject to a legitimate survivors’ compensation annuity (hereinafter the disposition of this case).

(The purport of the whole entries and arguments in Gap 1 and 2)

2. The legality of the disposition.

A. The plaintiff's assertion

Although the Intervenor is a spouse under the law of the Deceased, the Plaintiff’s disposition of this case by the Defendant is unlawful, since it is obvious that the Intervenor constitutes the person entitled to the survivors’ compensation annuity under the Industrial Accident Compensation Insurance Act, and that the Defendant’s disposition of this case, which differs from this view, is unlawful, inasmuch as the Intervenor’s agreement between the Deceased and the Intervenor, only exists in a formal marital relationship with the intent of this divorce, but actually

(b) Relevant statutes;

As shown in the attached Form.

C. Facts of recognition

(1) On December 21, 197, the Deceased married to the Intervenor and 2 South and North Korea on December 21, 1977, and had 1 South and North Korea son.

(2) On May 198, 198, the Deceased was living together with the Intervenor and maintained a de facto marital relationship with the Plaintiff from June 1989 to the time of death.

(3) From August 1, 200, a copy of the deceased’s resident registration is registered as the deceased’s cohabitant, and the Plaintiff’s national health insurance is also registered as the deceased’s insured. The auxiliary intervenor is not registered as the deceased’s resident registration copy, a person living together with national health insurance, or the insured.

(4) After the plaintiff started living with the deceased, the plaintiff was present at a family gathering, etc. of the deceased's spouse, but the assistant intervenor did not attend a family meeting, etc. of the deceased after separation from the deceased.

(5) On February 2, 2000, the deceased was hospitalized at a hospital of 00000 and a hospital of 0000 on or around February 2, 2009, while the Plaintiff was in exclusive charge of the care of the deceased, on the other hand, the Intervenor did not have visited the hospital as well as the nursing of the deceased.

(6) The supplementary intervenor’s children showed that they met the deceased and visited the Plaintiff’s house several times. The supplementary intervenor’s children were smaller than the Plaintiff.

(7) The Deceased, while living together with the Plaintiff, participated in the events of the Intervenor’s house by attending the marriage ceremony between the Intervenor and his children.

(8) The Intervenor does not know the fact that the Deceased actually maintains a matrimonial relationship with the Plaintiff, and did not make a claim against it or demand the suspension of a de facto marital relationship.

(9) neither the Deceased nor the Intervenor may demand a divorce to the other party.

(No. 1 to 9 evidence, No. 1 to 5 evidence, the fact-finding results on the National Health Insurance Corporation 0000, the witness 000, and the purport of the whole testimony and arguments of 00)

(d) the board;

In light of the Korean family law system under which the principle of statutory divorce and the principle of prohibition of heavy marriage is Daejeon, Article 44(1) of the Industrial Accident Compensation Insurance Act includes "a person who is in a de facto marital relationship" as a spouse entitled to receive compensation for bereaved family members. The purport of Article 44(1) of the Industrial Accident Compensation Insurance Act is to protect a spouse in a case where a person has the substance of marriage by actually engaging in a marital life, but is to protect a spouse in a case where a person is recognized as a legally marital relationship because there is no report of marriage, or not to protect a de facto marital relationship which is concurrent with a legal marriage. Thus, if a person is in fact separate from a spouse, the actual marital relationship with the spouse cannot be deemed as a de facto marital relationship under the Industrial Accident Compensation Insurance Act except for exceptional cases such as legal divorce due to the lack of formalities, even though there was a consent of the intention of divorce, etc. (see, e.g., Supreme Court Decision 93Nu1497, Jul. 27, 1993).

However, comprehensively taking account of the following various circumstances, it cannot be deemed that the marital relationship between the deceased and their assistant intervenors exists only in the form of law and actually dissolved, while the marital relationship between the plaintiff and the deceased seems not to be a de facto de facto marital relationship. Therefore, the plaintiff does not constitute a spouse in the de facto marital relationship under the Industrial Accident Compensation Insurance Act.

(1) Until the deceased died, the relationship between the deceased and his assistant was not resolved and the relationship between the deceased and his assistant, and the deceased and his assistant did not require a divorce to the other party.

(2) The supplementary intervenor, without entering into a marital relationship ( de facto marriage) with another man, raises his or her children alone.

(3) The deceased’s failure to divorce with an auxiliary intervenor while maintaining his/her de facto marital relationship with the plaintiff shows that the intervenor did not intend to terminate his/her legal marital relationship with the auxiliary intervenor. Even if the deceased had an intent to resolve legal confusion with the auxiliary intervenor, it cannot be deemed that there was a mutual agreement between the assistant intervenor and the assistant intervenor.

(4) The fact that the deceased living together with the plaintiff for a period of twenty years from around 1989 to the time of his/her death and carried out his/her own independent life without daily exchange or economic dependence, is insufficient to deem that the marital relationship between the deceased and his/her assistant participant was dissolved and that there was legal divorce.

3. Conclusion

Thus, the defendant's disposition of this case is legitimate, and the plaintiff's assertion is without merit, and the plaintiff's claim is dismissed as per the disposition.

Judges Shin Dong-dong, Judge

Judges Kim Kim-soo

Judges Adjusted or Managed

Site of separate sheet

Related Acts and subordinate statutes

Industrial Accident Compensation Insurance Act

Article 44 (Scope of Person Entitled to Survivors’ Compensation Annuity)

(1) A person entitled to a survivors' compensation annuity (hereinafter referred to as "person entitled to a survivors' compensation annuity") shall be a wife (including a person in a de facto marital relationship; hereinafter the same shall apply) and any of the following persons from among the bereaved family members supported by the former at the time of his/her death:

1. Husband (including any person who is in a de facto marital relationship; hereinafter the same shall apply), parents or grandparents respectively aged 60 or older;

2. Not more than the omission;

Article 46 (Order of Bereaved Family Members Who are Eligible Beneficiaries)

(1) The order of priority among bereaved family members' entitlement to receive the lump sum survivors' compensation under Article 40 (6), 43 (2) (limited to the lump sum survivors' compensation benefits) and (4) shall be as follows, but among persons falling under any of the following subparagraphs, the order entered therein shall be as follows. If two or more persons are eligible for the same rank of priority, the bereaved family members shall be paid equally in installments:

1. Spouse, children, parents, grandchildren and grandparents who were supported by the worker at the time of his/her death;

2. Spouse, children, parents, grandchildren, grandparents or siblings who were supported by a worker at the time of his/her death, and siblings who were supported by a worker at the time of his/her death;

3. A sibling.

(2) Not more than omission