Plaintiff 1 and one other (Law Firm Yang Hun-Ga, Attorney Kim Ba-bol, Counsel for the plaintiff-appellant)

Head of the National Armed Forces Administration

April 12, 2018

Seoul Administrative Court Decision 2017Guhap63023 decided December 21, 2017

1. The part regarding Plaintiff 1 among the judgment of the first instance is revoked. The lawsuit between Plaintiff 1 and the Defendant was concluded on September 2, 2017 due to the death of the said Plaintiff.

2. The plaintiff 2's appeal is dismissed.

3. The costs of appeal between the plaintiff 2 and the defendant are borne by the plaintiff 2.

The judgment of the first instance shall be revoked. On July 22, 2016, the defendant revoked the disposition that the defendant did not notify the plaintiffs of the right to receive survivor pension of the fact that they did not apply for the registration

1. Ex officio determination of the plaintiff 1 (the plaintiff 2)

According to the evidence No. 4, Plaintiff 1’s death on September 2, 2017, prior to the pronouncement of the first instance judgment. Meanwhile, Plaintiff 1 asserted that he/she has the right to receive a survivor’s pension under Article 26(1)3 of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013) and filed the instant claim. However, the bereaved family’s entitlement to a survivor’s pension under Article 26(1)3 of the former Military Pension Act, which arises when a person who was or was a soldier, is directly acquired as his/her own own right as prescribed by the Act. The entitlement to a survivor’s pension under Article 26(1)3 of the former Military Pension Act, which arises when he/she died, is not the same as inheritance of the right to receive a survivor’s pension held by the deceased person under the Civil Act (see Supreme Court Decision 97Nu20908, Mar. 10, 1998).

The court of the first instance has sentenced the plaintiff 1 to the substantive judgment and has sentenced the decision to the plaintiff 1.

2. Determination as to Plaintiff 2

(a) Quotation of judgment of the first instance;

The reasoning for this court's explanation with respect to the plaintiff 2 is as follows: "Plaintiff 2" for each "the last day of the judgment of the court of first instance," for the third 10th "the Military Pension Act" for "Article 3 (1) 4, Article 6, and Article 10 (1) of the former Military Pension Act" for the fifth 11th "Article 3 (1) 4, Article 6, Article 10 (1), Article 12, and Article 29 of the former Military Pension Act" for "Article 3 (1) 4, Article 6, Article 10 (1), Article 12, and Article 29 of the former Military Pension Act" for the purpose of the judgment of the court of first instance, and it is identical to the reasoning for the judgment of the court of first instance, except for the addition of the judgment on the plaintiff 2's assertion as follows, it is cited in accordance with Article 8 (2) of the Administrative Litigation

B. Determination on addition of Plaintiff 2’s assertion

The plaintiff 2 has the authority and duty to investigate the changes in the status of the beneficiary of the pension every year with the authority delegated by the Minister of National Defense in accordance with Article 39 of the Enforcement Decree of the Military Pension Act. The defendant asserts that it is improper for the defendant to claim the expiration of the extinctive prescription against the beneficiary of the pension of the plaintiff 2, who knew or could have known the changes in status, such as the re-issuance of the non-party 3.

Article 39(1)1 of the Enforcement Decree of the Military Pension Act requires the Minister of National Defense and the defendant, etc. entrusted with his/her authority to investigate matters concerning the status of a pension beneficiary once a year into his/her residence or basic domicile. However, according to Articles 10(1) and 29(2) of the former Military Pension Act and Article 56 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 22151, May 4, 2010), the purport of the aforementioned provision is to enable the defendant to investigate matters concerning his/her status, such as the loss of a pension beneficiary’s entitlement by submitting relevant documents in order to receive a pension. Considering the fact that the defendant, even if he/she becomes aware of the fact that a pension beneficiary loses his/her entitlement due to death or re-employment, etc., it is difficult to view that the defendant, as the above, has the right to receive a pension beneficiary’s right to receive a senior pension as an efficient and efficient operation of the Military Pension Act.

Considering all these circumstances, the Defendant’s assertion of extinctive prescription cannot be deemed as either inconsistent with the principle of good faith or otherwise unfair solely on the grounds alleged by Plaintiff 2. The foregoing assertion by Plaintiff 2 is without merit.

3. Conclusion

Of the judgment of the court of first instance, the part against Plaintiff 1 is revoked, and the lawsuit between Plaintiff 1 and the Defendant is concluded upon the death of the above Plaintiff on September 2, 2017. The part against Plaintiff 2 in the judgment of the court of first instance is justifiable in conclusion with this court, and the above Plaintiff’s appeal is dismissed as it has no merit.

Judges Kim Jong-ju (Presiding Judge)