2018du46780 Demanding revocation of a revocation of a provisional notice to a person entitled to a survivor pension;

Plaintiff

Law Firm Han-han, Counsel for the plaintiff-appellant

Attorney Kim Jong-hwan et al.

Head of the National Armed Forces Administration

Seoul High Court Decision 2018 - 32820 decided May 24, 2018

December 27, 2019

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. According to the reasoning of the lower judgment, the following circumstances are revealed. (1) In the event of an accident that occurred during the performance of official duties on September 14, 1992, the Plaintiff and Nonparty 2 are the parents of the Deceased, and Nonparty 3 is the deceased’s spouse at the time of the deceased’s death. Nonparty 4 is the deceased’s children born on October 22, 1991 between the deceased and Nonparty 3.

2) After the deceased’s death on duty, Nonparty 3 was paid monthly survivors’ pension from October 1992 to June 201 through the decision of the Minister of National Defense to pay the survivors’ pension. However, Nonparty 3 was paid on March 2006.

30. A person who once remarrieds and loses the entitlement to a survivor pension, and on October 22, 2009, Nonparty 4 lost the entitlement to a survivor pension.

3) The Plaintiff and Nonparty 2 filed a claim with the Defendant for the transfer of entitlement to a survivor pension on or around July 2016 on the grounds that Nonparty 3 and Nonparty 4 lost their entitlement to a survivor pension. The Defendant issued the instant refusal disposition against the Plaintiff and Nonparty 2 on July 22, 2016 on the grounds that the Plaintiff and Nonparty 2 did not exercise their entitlement to a survivor pension for five years from the date on which they lost their entitlement to a survivor pension and the right to receive a survivor pension was extinguished due to the completion of prescription.

B. The key issue of the instant case is whether the Plaintiff and Nonparty 2’s entitlement to the survivor pension, which was acquired by Nonparty 3 and Nonparty 4 on October 22, 2009, were subject to the extinctive prescription under Article 8(1) of the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “Act”); and (2) the Plaintiff and Nonparty 2, at the time of filing a claim for the transfer of entitlement to the survivor pension to the Defendant on July 2016, upon the lapse of five-year statute of limitations.

2. Provisions and legal principles pertaining to the Military Pension Act

A. The term "bereaved family member" shall pay a survivor pension to "bereaved family member when a person who is or was a soldier or a veteran died in the line of duty due to a disease or injury in the line of duty (Article 26 (1) 3 of the Act)" means the spouse, children, parents, grandchildren, grandparents who were supported by him at the time of the soldier's death (Article 3 (1) 4 of the Act), the order of priority of bereaved family members to receive the survivor's benefits shall be the order of inheritance (Article 12 of the Act), the person who is or was a soldier's entitlement to the survivor's pension shall be deprived of the entitlement to the survivor's pension (Article 29 (1) of the Act), and when a person who is or was a soldier reaches the age of 18; when a person who is not in the degree prescribed by Presidential Decree reaches the age of 18, referring to the person in the same order of priority with him; when a person dies in the line of duty, his entitlement to the survivor's pension shall be transferred to the next person.

B. Whether the right to receive the bereaved family's entitlement to the bereaved family's entitlement to the bereaved family's entitlement to the bereaved family's entitlement to the above priority or the next priority

In full view of the contents and structure of the above provisions on survivor pension under the Military Pension Act, and the legislative intent of the gold scheme with the aim of contributing to the stabilization of the livelihood and the improvement of welfare of the bereaved family by paying the bereaved family benefits, the entitlement to survivor pension due to the death of the bereaved family member can only be subject to extinctive prescription of the monthly entitlement to survivor pension (share) that occurs every month by filing a claim for the survivor pension within five years from the date on which the soldier died and receiving a decision of the Minister of National Defense to pay the survivor pension, and the specific entitlement to the survivor pension does not independently be subject to extinctive prescription under Article 8(1) of the Act. The same shall apply to the case where the bereaved family member is transferred to the next-order or the next-order bereaved family under Article 29(2) of the Act in accordance with the specific reasons are as follows.

1) Article 29(2) of the Act provides that “When a person having the right to receive a survivor pension loses his entitlement to a survivor pension, it shall be interpreted that “if a person having the same priority or priority, loses his entitlement to a survivor pension, it shall be interpreted that a person having the same priority or priority is transferred to a person having the same priority or a person having the priority in the case of the loss of his entitlement to a survivor under Article 29(2) of the Act without mediating a separate decision of the Minister of National Defense. Therefore, if a person having the priority or priority loses his entitlement to a survivor pension under Article 29(2) of the Act, the person having the right to receive the survivor pension loses his entitlement to a survivor pension under Article 29(2) of the Act, the person having the right to receive the survivor’s right to receive the survivor’s right to receive the survivor’s right to receive the survivor’s right to receive the survivor’s right to receive the survivor’s right to receive the first priority or the defendant’s right to receive the survivor’s right to receive the survivor’s right to receive the first priority.

2) Under the Military Pension Act, a survivor pension is established for the purpose of contributing to the stabilization of the economic life and the enhancement of welfare of the bereaved family by paying the pertinent benefits to the bereaved family members supported by the soldier (Article 1 of the Act). It is against the legislative intent of the survivor pension system to ensure that the bereaved family members lose the entire entitlement to the survivor pension because the bereaved family members did not file a claim for the transfer of the survivor pension within five years from the date on which the entitlement to the survivor pension was lost. In addition, the fact that the bereaved family members are unable to easily understand the changes in the status of the bereaved family members if the bereaved family's residence is different or contact is not contacted. Therefore, if the State decided to pay a survivor pension with respect to the death of a specific soldier, it is necessary to pay the bereaved family members who are entitled to receive the survivor pension unless there is a change in the beneficiary among the bereaved family members and the extinctive prescription of the monthly entitlement to the survivor pension, even if they

3) The reason for the existence of the prescription system is that respect the permanent state of fact, and protect the locked person on the right, and in particular, the latter is highly meaningful in the case of extinctive prescription (see Supreme Court en banc Decision 2015Da232316, Oct. 18, 2018). If a group of bereaved family members exercises their rights on the death of a specific military person, it is difficult to deem that the non-exercise of the right to receive a survivor’s pension following the death of the said military person continues for a considerable period of time, and it is necessary to establish an uncertain legal relationship through the extinctive prescription. If the bereaved family members completely do not exercise their rights on the right to receive a survivor’s pension, but if a group of bereaved family members has received a decision to claim a survivor’s pension and received a decision to pay the survivor’s pension, the bereaved family members on the specific entitlement to a survivor’

From the standpoint of the State and the Minister of National Defense, the payment of a survivor pension to the same order or the next order is not a new obligation for the payment of the survivor pension that is entirely anticipated, but it is difficult to deem that the first order’s entitlement to the survivor is an obstacle to the financial stability or efficient operation of the survivor pension. 4) Since the specific entitlement to the survivor pension is realized by exercising the monthly entitlement to the survivor pension as a fundamental right to the monthly entitlement to the survivor pension, as long as the monthly entitlement to the entitlement to the survivor pension has arrived at each month and all of the monthly entitlements are not extinguished by the statute of limitations, there is no room for the lapse of the statute of limitations only by the specific entitlement to the survivor pension. The monthly entitlement to the specific entitlement to the survivor pension has become an independent claim upon the arrival of each month and the period of prescription is applied respectively. Since the specific entitlement to the survivor pension has been lost as its existence as the basic right, it does not need to be particularly problematic.

C. Even if a bereaved family member with prior priority in the disposition of the decision on the transfer of entitlement to a survivor pension is legally transferred at the time of the loss of entitlement to the survivor pension as the bereaved family member with prior priority in the disposition of the decision on the transfer of entitlement to the survivor pension becomes entitled to receive the survivor pension only after submitting a written request for transfer of entitlement to the survivor pension to the Minister of National Defense as prescribed by Article 56 (amended by Presidential Decree No. 22647, Nov. 2, 2010; hereinafter referred to as the "Enforcement Decree") of the former Enforcement Decree of the Military Pension Act and undergoing the procedure of examination and decision. The decision of the Minister of National Defense is an administrative act of "verification of whether the legal effect of transfer of entitlement to the survivor pension has occurred due to the loss of entitlement to the senior bereaved family member's entitlement to the survivor pension" and this constitutes an administrative act of subsequent enforcement of law as to the specific facts conducted by an administrative agency, and thus, the Minister of National Defense cannot immediately reject the decision of entitlement to the survivor pension as the subject of appeal litigation.

D. Under the Military Pension Act, benefits which arise from a specific entitlement to a survivor pension shall be paid on the 25th day of each month from the month following the month in which the grounds for benefits arise to the month in which such grounds arise (Article 17(1) and (4) of the Act, and Article 32(1) of the Enforcement Decree of the same Act). Therefore, the monthly entitlement of a person who acquires a specific entitlement to a survivor pension shall be deemed to fall under a claim with the final and conclusive period that comes into existence every one month (see Supreme Court Decision 2002Du11028, Mar. 28, 2003). Article 8(1) of the Act provides that, in cases where the person acquires a entitlement to a survivor pension under the Military Pension Act for five years from the date on which the grounds for benefits arise, the extinctive prescription shall expire if he/she fails to exercise the entitlement to a survivor’s entitlement to a survivor’s entitlement to a monthly entitlement to a survivor pension under Article 26(1)3 of the Enforcement Decree of the Military Pension Act.

In a case where a person with the same order or the next order's bereaved family acquires the right to receive a specific survivor pension immediately under the provisions of Article 29 (2) of the Act, the right to receive the monthly entitlement derived therefrom shall expire upon the completion of each statute of limitations when he fails to exercise it for five years from the payment date of each pension (25th of each month). In a case where the Minister of National Defense makes a claim for the transfer of the right to receive a survivor pension under Article 56 of the Enforcement Decree, he/she has objectively expressed the purport that he/she exercises the right to receive a monthly entitlement that has already occurred. Thus, the right to receive the monthly entitlement within

3. Determination as to the instant case

A. We examine the above facts in light of the above legal principles. 1) The abstract right to receive a survivor pension due to the death in the line of duty of the deceased became entitled to a specific survivor pension upon the request of the Minister of National Defense for the survivor pension within five years from the date of the deceased’s death. The specific right to receive a survivor pension is legally transferred pursuant to Article 29(2) of the Act to the plaintiff and the non-party 2 on October 22, 2009 as the non-party 3 remarried on March 30, 2006, and the non-party 4 on October 22, 2009 when the non-party 18 years old. Such specific right to receive a survivor pension is not subject to the extinctive prescription prescribed in Article 8(1) of the Act independently, and even if the plaintiff and the non-party 4 and the non-party 2 did not transfer the right to receive a survivor pension within five years from the date of their transfer, the right to receive a specific survivor pension does not become extinguished by the prescription itself for the plaintiff and the non-party 2.

B. Nevertheless, without distinguishing a specific entitlement to a survivor pension from a monthly entitlement, the lower court determined that the Plaintiff and Nonparty 2’s entitlement to a survivor pension extinguished by extinctive prescription on the grounds indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the acquisition and transfer of entitlement to a survivor pension and the extinctive prescription thereof under the Military Pension Act, thereby adversely affecting the conclusion of the judgment. The allegation contained

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik

Justices Kim Jong-il

Justices Park Il-san

Jeju High Court Justice Kim Jong-soo