[1] Whether a survivor pension is paid under the Public Officials Pension Act in a de facto marital relationship between a person of a de facto marital relationship whose marriage is invalidated under the Civil Act

[2] Whether a de facto marital relationship between a punishment and a wife at the time when the Civil Act was enforced as amended by Act No. 7427 of March 31, 2005 and the Civil Act amended by Act No. 4199 of January 13, 1990 can be asserted as a de facto marital relationship with grounds for invalidation (negative)

[3] The case affirming the judgment below holding that the above applicant is a spouse of a survivor pension under the Public Officials Pension Act, in case where the status quo in a de facto marital relationship with a university professor as of January 13, 1990 was enforced after the enforcement of the Civil Act amended by Act No. 7427 of March 31, 2005, and the Public Officials Pension Corporation rejected the above disposition on the ground that the marriage between the head of a penalty and the head of a wife under the provisions of the Civil Act amended by Act No. 1990, and the de facto marital relationship falling under the nullity of marriage cannot be recognized as a de facto marital relationship under Article 3 (1) 2 (a) of the former Public Officials Pension Act, in case where the above applicant is a spouse of a survivor pension under the Public Officials Pension Act

[1] In full view of the fact that the public official pension system is a public pension system under the control of the Government (Article 2 of the Public Officials Pension Act), regardless of the public official’s will, and that a person in a de facto marital relationship, which is essentially contrary to the public interest and order of marriage law as prescribed by the Civil Act, may not be regarded as a spouse who is the beneficiary of the survivor pension. In addition, in a case of marriage, a de facto marital relationship between a married child whose marriage is invalidated, in principle, is in a de facto marital relationship in violation of the law and order of marriage. However, even if a de facto marital relationship between a married child whose marriage is invalidated under the Civil Act is a de facto marital relationship, the historical and social background in which marriage between the married child is prohibited, the circumstance in which the de facto marital relationship was formed, whether a de facto marital relationship was accepted in the surrounding society including his family members, the period of community life, the existence of children, the stability and reliability of the marital life, etc., and the special circumstance that prevents the payment of a de facto marital relationship is clearly lower than the public interest relationship.

[2] Article 4 of the Civil Act amended by Act No. 7427 of Mar. 31, 2005 provides that " even in cases where there are grounds for nullity or revocation of marriage under the previous provisions of this Act, if there are grounds for nullity or revocation of marriage under the previous provisions of the marriage before the enforcement of this Act, a claim for nullity or revocation of marriage shall not be made after this Act enters into force, and the purport of this transitional provision shall also extend to a de facto marriage relationship, unless there are special circumstances. Therefore, the Civil Act amended by Act No. 4199 of Jan. 13, 1990 cannot be asserted as a de facto marriage relationship between the punishment and the wife at the time of the enforcement of the Civil Act amended by Act No. 4199 of Jan. 13, 190 after the enforcement of the Civil Act in 2005.

[3] Where the above disposition was rejected on the ground that a de facto marital relationship with a university professor as of January 13, 1990 was not recognized as a de facto marital relationship under Article 3 (1) 2 (a) of the former Public Officials Pension Act (amended by Act No. 905 of Dec. 31, 2009), and that a de facto marital relationship between a university professor as of March 31, 2005 and a de facto marital relationship was invalidated after the enforcement of the Civil Act as amended by Act No. 7427 of March 31, 2005, the case affirming the judgment below that the above disposition was rejected on the ground that the de facto marital relationship between a de facto marital relationship and a spouse as of March 24, 2005 was an invalid de facto marital relationship under Article 3 (1) 2 (a) of the former Public Officials Pension Act (amended by Act No. 9905 of Dec. 31, 2009), and that the above de facto marital relationship could not be considered as a de facto marital relationship with the above spouse status of 15.

[1] Article 3 (1) 3 (a) of the Public Officials Pension Act / [2] Articles 809 and 815 of the former Civil Act (Amended by Act No. 7427, Mar. 31, 2005); Articles 809, 815, and 816 of the Civil Act; and Article 4 of the Addenda (Amended by Act No. 31, Mar. 31, 2005) / [3] Article 3 (1) 2 (a) of the former Public Officials Pension Act (Amended by Act No. 9905, Dec. 31, 2009)

[Defendant-Appellant] Plaintiff (Law Firm Doz., Attorney Do-Appellee)

The Government Employees Pension Service

Seoul High Court Decision 2010Nu209 decided June 17, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 3(1)3(a) of the Public Officials Pension Act (hereinafter “Act”) provides that “A person who is or was a public official at the time of the death of a person who is or was a public official (hereinafter “public official”) with respect to his/her spouse eligible for a survivor pension shall be included in the former Public Officials Pension Act (amended by Act No. 9905, Dec. 31, 2009; hereinafter the same shall apply).

In light of the purpose of the survivor pension system that contributes to the stabilization of the livelihood and the improvement of the welfare of the bereaved family members, the spouse, who is the beneficiary of the survivor pension, does not necessarily have to be identical to the concept of spouse under the Civil Act, and rather, in relation with a public official, paying the survivor pension to those who are actually engaged in a community as a husband and wife, is consistent with the social security nature of the survivor pension or the purport of the system.

Meanwhile, in full view of the fact that the public official pension system is a public pension system under the control of the government (Article 2 of the Act), and that the contribution that is compulsorily collected regardless of the public official’s will and the public demand for public interest, such as the fact that it cannot be disregarded, a person in a de facto marital relationship in essence contrary to the marriage law and order as prescribed by the Civil Act may not be considered as a spouse who is the beneficiary of the survivor pension. In addition, in a case of a de facto marital relationship between a person whose marriage is invalidated, in principle, a de facto marital relationship is in essence contrary to the marriage law and order.

However, even if a de facto marriage is a de facto marriage between a person in a marital relationship whose marriage is invalidated under the Civil Act, there are special circumstances to give priority to the purpose of the survivor pension system, i.e., stabilization of livelihood and improvement of welfare of bereaved family members, rather than a request for public interest prohibition of marriage between a person in a marital relationship, in cases where it is deemed that the anti-Ethical and anti-public interest nature is considerably low in light of the historical and social background prohibited from marriage between the person in a marital relationship, the circumstances leading up to the formation of such de facto marital relationship, whether a person is admitted to surrounding society, including his family and relatives, the period of community life, the existence of a child, stability and reliability of marital life, etc.

2. In relation to the marriage between the wife and the wife at issue in the instant case, the marriage between the wife and the wife was not prohibited under the former customary law. In addition, under the former Civil Act which was enforced in 1960, there was a conflict of opinion as to whether the marriage is prohibited under the relevant provisions, and if so, whether the marriage is null and void or not, there was a cause for revocation thereof, and even if the marriage was prohibited under the same Act, there was a withdrawal of the opinion that the marriage is not prohibited. However, the Civil Act amended by Act No. 4199 on January 13, 1990 (hereinafter “the Civil Act”), which was amended by Act No. 4199 on January 13, 1990, expanded the scope of the wife’s marriage from “the parent within the fourth degree” to “the parent within the fourth degree,” and the amendment of Article 809 and Article 815 on the limitation of marriage and the nullity of marriage, the amendment of the Civil Act was null and void by the amendment of the Civil Act No. 2750.

However, Article 4 of the Addenda to the Civil Act of 2005 provides, “Where there are grounds for nullity or revocation of marriage under the previous provisions of this Act even in cases where there exist grounds for nullity or revocation of marriage under the previous provisions of marriage prior to the enforcement of this Act, they shall not claim nullity or revocation of marriage after the enforcement of this Act, and the purport of these transitional provisions shall also extend to a de facto marriage relationship unless there are special circumstances. Therefore, it is reasonable to deem that it cannot be asserted as a de facto marriage relationship with respect to a de facto marriage relationship between the siblings and the wife at the time when the Civil Act of 1990 was enforced after the enforcement of the Civil Act of 205.

3. Review of the reasoning of the judgment below and the record reveals the following reasons.

In January 13, 1992, Nonparty 1 and Nonparty 2, who reported a marriage in 1965, had a child of 2 South and North Korea and resided in Seoul. However, Nonparty 1 was appointed as a professor of ○ University in 1982, and Nonparty 2 died on January 13, 1992. Accordingly, the Plaintiff, who was under the age of 42 due to Nonparty 2’s birth, was considered to have been under the age of 42 as Nonparty 1’s unmarried son (the Plaintiff’s her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

Since then, in 195, Nonparty 1 was married to the Republic of Korea by Nonparty 1, who moved from the above house to the Gunsan, and the Plaintiff also moved to the above house to the Gunsan address of Nonparty 1 and the Plaintiff started living together with Nonparty 1 from that time. Nonparty 1 and the Plaintiff lived as a couple who participated in a meeting or travel of the married couple, etc., and Nonparty 1 was running a community life, such as issuing a spouse’s family credit card to the Plaintiff and paying the Plaintiff’s national pension and health insurance fees.

As such, Nonparty 1 and the Plaintiff’s factual living relationship were recognized as a husband and wife from their relatives, including Nonparty 1’s children, and from their neighbors. Nonparty 1 retired from ○ University on August 31, 2003, and accordingly died on January 6, 2009 while receiving the retirement pension. Nonparty 1 and the Plaintiff did not complete the marriage report even at the time of Nonparty 1’s death.

According to Article 3 (1) 2 (a) of the former Public Officials Pension Act, the Defendant rendered the instant disposition rejecting the application on the ground that the spouse entitled to the survivor pension is a spouse under the law or has been in a de facto marital relationship at the time of the public official’s employment, and that the marriage between the spouse and the wife was null and void under the provisions of the Civil Act in 1990 and the de facto marital relationship falling under the nullity of marriage cannot be recognized as a de facto marital relationship under Article 3 (1) 2 (a) of the former Public Officials Pension Act, prior to the enforcement of the said status as a public official.

4. Comprehensively taking into account the foregoing: (a) the attitude of the customary law regarding marriage between Nonparty 1 and the wife as seen earlier; (b) the process and details of the amendment of the Civil Act; (c) the formation process of a de facto marriage relationship between Nonparty 1 and the Plaintiff; (d) the formation process of a de facto marriage relationship between Nonparty 1 and his family members; and (c) the fact that the de facto marriage relationship appears to have been formed with a common life for about about about 15 years; and (d) even if the marriage between Nonparty 1 and his wife was null and void during the 1990 period when he was in force as a public official, the anti-competitive and public interest relationship between Nonparty 1 and the Plaintiff cannot be deemed to be in essence contrary to the order of marriage law. Furthermore, in light of Article 4 of the Addenda of the Civil Act in 2005, the Defendant cannot assert that the de facto marriage relationship between Nonparty 1 and the Plaintiff constitutes a de facto marriage relationship with the grounds for nullification of a de facto marriage.

Therefore, de facto marital relationship between Nonparty 1 and the Plaintiff constitutes “ de facto marital relationship” under Article 3(1)2(a) of the former Public Officials Pension Act, and the Plaintiff is a spouse who is a beneficiary of a survivor pension under the same Act. The judgment of the court below is justified in accordance with the above legal principles and acceptable. In so doing, it cannot be said that there is an error of law that affected the conclusion of the judgment due to misunderstanding of legal principles as alleged in the grounds of appeal.

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)