Where a person who has claimed a divided pension under the former Public Officials Pension Act and his/her former spouse who had been a public official repeatedly repeatedly divorced after the implementation of the divided pension system, whether the marriage period should be added to the marriage period after the implementation of the divided pension system when determining the "Marriage period" under the main sentence of Article 46-3(1) of the former Public Officials Pension Act, which is the requirement for the payment of the divided pension, should be determined (affirmative in principle)

In full view of the contents and legislative purport of the provisions on the entitlement to receive a divided pension under the former Public Officials Pension Act (wholly amended by Act No. 15523, Mar. 20, 2018; hereinafter “former Public Officials Pension Act”), the legal nature of the entitlement to receive a divided pension and the relationship between the division of property pursuant to the Civil Act and the divorce system under the Civil Act, where the claimant for a divided pension and the former spouse who was a public official repeats both the marriage and divorce on two or more occasions, and where the final divorce was made after the implementation of the divided pension system, the division of property has been made by taking into account the contributions to the formation of the retirement pension, etc. up to the time when the divorce was made before the implementation of the divided pension system, barring special circumstances, when determining the “Marriage period” under the main sentence of Article 46-3(1) of the former Public Officials Pension Act, the period

Article 46-3 of the former Public Officials Pension Act (wholly amended by Act No. 15523, Mar. 20, 2018) (see current Article 45)

Plaintiff

The Government Employees Pension Service

Seoul High Court Decision 2018Nu63909 decided June 5, 2019

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

The grounds of appeal are examined.

1. Case summary and key issue

A. The reasoning of the lower judgment reveals the following circumstances.

1) The Nonparty retired after serving as a police official from September 20, 1968 to June 30, 2001.

2) The Plaintiff married the Nonparty on May 26, 1975, but divorced on May 17, 1994 (hereinafter “the first marriage period”), and divorced on July 8, 1998, but divorced on June 15, 2017 (hereinafter “the second marriage period”).

3) On June 27, 2017, the Plaintiff filed a claim for the installment payment of the public official pension received by the Nonparty pursuant to Article 46-3 of the former Public Officials Pension Act (wholly amended by Act No. 13387, Jun. 22, 2015; wholly amended by Act No. 15523, Mar. 20, 2018; hereinafter “former Public Officials Pension Act”), however, on July 18, 2017, the Defendant may not add up “the first marriage period against the Plaintiff was divorced before the implementation of the divided pension system, for more than five years during the marriage period of his spouse’s public official,” which is the requirement for the payment of the divided pension, to the Defendant, on the grounds that the Plaintiff failed to meet the requirements for the payment of the divided pension.

B. The key issue of the instant case is whether the period of marriage prior to the implementation of the divided pension system should be added up when determining whether “a spouse’s period of marriage is at least five years during the period of service of public officials” under the main text of Article 46-3(1) of the former Public Officials Pension Act, which is the requirement for the payment of the divided pension system, is met, if the person who claimed the divided pension and the former spouse who was a public official repeats both marriage

2. The reasonable interpretation of "a period of marriage for not less than five years"

A. Article 46-3(1) of the former Public Officials Pension Act provides, “If a person whose marriage period (limited to the marriage period during which his/her spouse has served as a public official) is five years or more meets all the requirements falling under each of the following subparagraphs, he/she may receive a specified amount of pension divided by his/her spouse’s retirement pension or early retirement pension from that time during his/her lifetime,” under subparagraph 1 of the same Article, subparagraph 2 of the same Article, “a person who was his/her spouse shall be a beneficiary of retirement pension or early retirement pension,” and subparagraph 3 of the same Article, and Article 46-3(2) of the same Act provides, “The amount of divided pension under paragraph (1) of the same Article shall be the amount calculated by equally dividing the amount of pension corresponding to the marriage period among the amount of retirement pension or early retirement pension of his/her spouse who was a spouse.” Therefore, in order to recognize a spouse’s entitlement to a divorce pension under the former Public Officials Pension Act, it is required that

B. In full view of the contents and legislative purport of the provisions on the entitlement to receive a divided pension under the former Public Officials Pension Act, the legal nature of the entitlement to receive a divided pension and the relationship between the divorce system under the Civil Act, in cases where the claimant for a divided pension and the former spouse who was a public official repeatedly divorced after the implementation of the divided pension system at least twice, barring special circumstances where the division of property was made by taking into account the contribution to the formation of the retirement pension up to that time while divorced before the implementation of the divided pension system, the period of marriage before the implementation of the divided pension system should be aggregated with the period of marriage after the implementation of the divided pension system, in determining the “Marriage period” under the main sentence of Article 46-3(1) of the former Public Officials Pension Act. The detailed reasons

1) The pension system introduced by the Public Officials Pension Act as partially amended by Act No. 13387, Jun. 22, 2015 provides that a public official’s spouse who has been divorced may receive liquidation and distribution of the right to receive the retirement pension or early retirement pension acquired during the period of marriage by recognizing the portion of contribution to the formation of pension. Meanwhile, it was established in the purport that a certain level of old-age income is guaranteed based on the other party’s entitlement to receive the retirement pension or early retirement pension (see, e.g., Constitutional Court en banc Decision 2016Hun-Ma54, Apr. 26, 2018). Meanwhile, the former Public Officials Pension Act provides for the entitlement to the pension. Article 2(1) of the Addenda provides that “The pension system established under the amended provisions shall be paid from the person whose first cause for payment occurred after this Act enters into force, and it is reasonable to determine whether a spouse who has been a public official whose spouse had been married is divorced with his spouse for at least five years in the period of marriage.”

2) Although the divided pension system has both the property right and social security nature, the property right nature of the divided pension system is the joint property of the couple who has supported the right to receive pension through cooperation in the marital life, and after the divorce, the share of the contributory portion should be divided. The Supreme Court held that the property that has been created by mutual cooperation during each marriage shall be included in the division of property, unless there are special circumstances to deem that the property was actually divided in the previous divorce or that the right to claim the division of property was fully renounced when the marriage and divorce are repeated several times with the same person (see Supreme Court Decision 9Meu1855 delivered on August 18, 200), and that the above purport should be considered in interpreting and applying the "five or more years of marriage period" among the requirements for the right to receive the divided pension.

3) The Civil Act was amended by Act No. 4199 on January 13, 1990. In the past, the Supreme Court held that “The other party’s retirement pension to be received cannot be immediately included in the subject of property division, and it is sufficient to take into account other circumstances necessary to determine the amount and method of division under Article 839-2(2) of the Civil Act” and did not recognize the right to receive pension themselves (see, e.g., Supreme Court Decision 96Meu1533, 1540, Mar. 14, 1997). After that, the Supreme Court held that the public official’s entitlement to retirement pension has been included in the property division before and after the divorce of the spouse, and that the public official’s entitlement to retirement pension has not been implemented at the time of divorce, and that, even if one spouse was still at the time of divorce and the spouse’s entitlement to retirement pension has not received the retirement pension at the time of marriage or the right to receive property division before and after the divorce of the spouse.”

4) Supreme Court Decision 2010Du27264 Decided May 13, 201 cited by the Defendant is related to the interpretation of Article 3(1)4(a) of the former Military Pension Act (amended by Act No. 12788, Oct. 15, 2014) concerning the scope of “spouse” among “bereaved family members,” a beneficiary of a survivor’s pension, and it is inappropriate to invoke the instant case as it differs from the instant case.

3. Determination as to the instant case

On May 17, 1994, the Plaintiff and the Nonparty divorcedd on May 17, 1994. There is no assertion or proof as to the circumstances that the division of property was completed by considering the Plaintiff’s contribution to the formation of the retirement pension, etc. up to that time. Therefore, when determining whether the Plaintiff satisfies the requirements for recognizing the entitlement to the divided pension, “a spouse’s period of marriage for at least five years during his/her spouse’s period of service,” the first marriage period and the second marriage period should be aggregated

In the same purport, the lower court determined that the Defendant’s rejection disposition of this case was unlawful on the ground that the Defendant’s secondary marriage period, except the Plaintiff’s primary marriage period, does not constitute “a period of marriage for at least five years during the period of service as a public official of his spouse.” In so doing, the lower court was based on the legal doctrine as seen earlier, and did not err by misapprehending the legal doctrine on “Marriage period” which is the requirement for recognizing

4. Conclusion

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.

Justices Park Sang-ok (Presiding Justice)