Whether the damage claim equivalent to the deceased’s lost old age pension arising from the death of another’s illegal act by the beneficiary of an old age pension under the former National Pension Act is jointly inherited to co-inheritors in proportion to their respective shares of inheritance (affirmative), and in cases where co-inheritors succeed to the above damage claim and the beneficiary of the survivor’s pension is paid the survivor’s pension from the National Pension Service, whether the survivor’s pension paid by the beneficiary of the survivor’s pension should be deducted only from the damage claim corresponding to the lost old age

Articles 61, 72, and 73 of the former National Pension Act (Amended by Act No. 11143, Dec. 31, 201); Article 997 of the Civil Act

Plaintiff 1

Plaintiff 2 and two others (Law Firm Down, Attorneys Jeong Jong-ap et al., Counsel for the plaintiff-appellant)

Dongbu Fire and Marine Insurance Co., Ltd. (Law Firm Jeongse, Attorneys Han Sang-han et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2011Na9685 Decided June 9, 2011

The part of the judgment of the court below against plaintiffs 2, 3, and 4 and the part against plaintiffs 1 are reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court. The defendant's remaining appeals are all dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal by Plaintiffs 2, 3, and 4

A. In a case where a person who received an old age pension under the former National Pension Act (amended by Act No. 11143, Dec. 31, 2011; hereinafter the same shall apply) died due to another person’s tort, his/her heir, if the deceased was alive, may claim damages equivalent to the old age pension that could have been received during the life period, against the perpetrator by inheritance.

Meanwhile, the provisions of Articles 72 through 76 of the former National Pension Act stipulate the beneficiary from a standpoint different from the inheritance system under the Civil Act for the purpose of guaranteeing the livelihood and improving the welfare of the bereaved family who were supported by the beneficiary of the old age pension, etc. with respect to the survivor pension at the time of his death. Thus, the beneficiary of the survivor pension is not the inheritor but the right to receive the survivor pension directly as his own own right under these provisions, and the entitlement to the survivor pension does not include the inherited property of another person

However, in cases where co-inheritors inherit a damage claim equivalent to the deceased's lost old-age pension as the beneficiary of an old-age pension dies by a third person's illegal act, while the beneficiary of a old-age pension receives a survivor pension from the National Pension Service, such survivor pension is a benefit with the same purpose and character as that of the old-age pension, and thus, it would be in line with the principle of equity to deduct the amount of the survivor pension from the damage claim equivalent to the lost old-age pension inherited by the relevant beneficiary of an old-age pension, but it cannot be deemed that the legal effect of the deduction due to the receipt of the survivor pension does not extend

Thus, all of the damage claims equivalent to the deceased's lost old age pension arising from the deceased's unlawful death of another person shall be jointly inherited by the co-inheritors according to their respective shares of inheritance. The survivor pension paid by the beneficiary of the survivor pension shall be interpreted to be deducted only from the damage claim within the extent of the damage claim equivalent to the lost old age pension inherited by the beneficiary. On the contrary, it shall not be interpreted to be jointly inherited by the co-inheritors after deducting the survivors' benefits first from the damage claim equivalent to the deceased's lost old age pension.

B. However, on different premises, the lower court determined that, even in cases where only a part of the deceased’s heir falls under the beneficiary of the survivor pension and the heir’s scope of damage claim equivalent to the above old-age pension, it is reasonable to deduct the remainder after deducting the amount of the survivors’ pension from the amount of the old-age pension from the amount of the old-age pension as joint inheritance in accordance with the provisions of the Civil Act. Thus, it is reasonable to deduct the survivors’ pension that the Plaintiff 1 may receive from the amount of the old-age pension damages for the deceased’s inheritance, and that the deduction would not remain in the amount of damages for the old-age pension out of the amount of the plaintiffs’ inheritance,

Therefore, the court below erred by misapprehending the legal principles on the deduction of survivor pension under the National Pension Act, thereby affecting the conclusion of the judgment.

The ground of appeal by the plaintiff 2, 3, and 4 pointing this out is with merit.

2. As to the Defendant’s ground of appeal

A. According to the evidence duly admitted by the court below, the plaintiff 4 and the representative of the plaintiff 1, 2, and 3 as well as the plaintiff 1, 2, and 3 as the representative, on June 22, 2010, received as part of the damages compensation the amount of KRW 31 million from the defendant, the insurer, as part of the damages compensation. The above amount of KRW 31 million is deducted from the total amount of the agreed amount at the time of receiving the subsequent agreed amount.

According to the above, the plaintiffs and the defendant agreed to receive the above KRW 31 million in proportion to their respective shares of inheritance in the status of the deceased's heir in relation to the above KRW 31 million, and to deduct the amount received by each plaintiff from the amount of damages claim for each plaintiff's final calculation after completion of the survivor pension deduction.

Nevertheless, the court below calculated each damage claim amount of the plaintiffs, unlike this, deducted the above KRW 31 million from the deceased's property damage amount before the survivor pension is deducted. In so doing, the court below erred by misapprehending the legal principles on the interpretation of the mutual aid agreement.

B. As seen in paragraph (1) above, all of the damage claims equivalent to the deceased's lost old age pension due to the accident of this case shall be jointly inherited by each co-inheritors according to the ratio of their respective shares of inheritance to the plaintiffs, who are co-inheritors. The survivor pension shall be deducted only from the total damage claims corresponding to the lost old age pension inherited by the plaintiff 1, who is the beneficiary, within the limit of the damage claims corresponding to the corresponding amount of the lost old age pension inherited by the plaintiff 1, who is the beneficiary, for the deduction of the above KRW 10,333,333, equivalent to the ratio of the plaintiff 1's share of inheritance to the above KRW 31 million, the amount to be cited shall be less than the amount of KRW 28,809,688, which is the cited by the court below.

C. However, even if the amount of KRW 6,888,888 corresponding to the ratio of the above plaintiffs' share of inheritance against the plaintiffs 2, 3, and 4 is deducted from the total damage claims of the above plaintiffs in the same manner, it exceeds KRW 13,00,000 as cited by the court below. Thus, in relation to the part against the above plaintiffs 2, 3, and 4, the above error of the court below did not adversely affect the conclusion of the judgment.

D. Therefore, the defendant's ground of appeal on this part is with merit, and there is no ground for appeal against the remaining plaintiffs.

3. Conclusion

Therefore, among the judgment below, the part against plaintiffs 2, 3, and 4 and the part against plaintiffs 1 are reversed, and this part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)