Plaintiff

The Minister of National Defense

March 25, 2010

Seoul Administrative Court Decision 2009Guhap13801 Decided September 3, 2009

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of site payment for survivor pension against the Plaintiff on March 19, 2009 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Quotation of the reasons for the judgment of the first instance;

Pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, the reasons for the judgment of the first instance court (the reasons for the disposition in this case), (1), (2) (whether the disposition in this case is legitimate), (2) (the plaintiff's assertion), (2), and (3) shall be cited as the reasons for the judgment in this case, and (4) shall be cited as the following (2).

2. Parts to be dried;

D. Determination

According to Article 3(1)4(a) of the Military Pension Act, “a spouse who is in a de facto marital relationship” includes “a person who is in a de facto marital relationship,” but even a spouse who is in a legal marital relationship shall be excluded from the subject of the payment of the “spouse who is married after the age of 61”. However, in the instant case, the deceased and the Plaintiff were living together from 1980 to the two children, and maintained a living relationship, such as giving birth to the two children, operating Taekwondo painting together, and operating Taekwondo painting, and the deceased’s age was from the completion of the marriage report on April 15, 1998 until the deceased’s death on June 30, 2008.

Therefore, the issue of whether the Plaintiff is entitled to a survivor pension under the Military Pension Act depends on whether the Plaintiff satisfies the requirements of “a person who was in a de facto marital relationship with the deceased” before October 7, 1997 when the deceased reached the age of 61, and the deceased remains in a legal marital relationship with Nonparty 1 (the Nonparty of the judgment of the Supreme Court) on April 28, 1962 before Nonparty 1 died on December 4, 1996, since the deceased and the Plaintiff’s living condition were “a de facto marital relationship,” the deceased’s and the Plaintiff’s living condition cannot be legally protected as it is the so-called “ de facto marital relationship,” which cannot be compatible with the legal marriage between the deceased and Nonparty 1, and as long as the Plaintiff had continued to have a de facto marital relationship with the deceased on December 4, 1996, the above “ de facto de facto marital relationship” is subject to ordinary legal protection as well as a de facto marital relationship.

Therefore, from December 4, 1996 before the deceased reached 61 years of age, the plaintiff was in a position to receive a survivor pension under the Military Pension Act as the "person in a de facto marital relationship with the deceased". Thus, the defendant's disposition that the plaintiff is not the beneficiary of the survivor pension of this case is unlawful (if the deceased establishes a de facto marital relationship with the deceased before he reached 61 years of age after the death of the non-party 1, the spouse of the de facto marital relationship is naturally recognized as the right to receive the survivor pension, and the plaintiff is in a de facto marital relationship with the deceased before the death of the deceased, and is not protected as the spouse of the de facto marital relationship even after the death of the deceased.)

3. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair. The judgment of the court of first instance is revoked, and the defendant decided to revoke the plaintiff's claim of the survivors' pension site payment against the plaintiff on March 19, 2009, and it is so decided as per Disposition.

Judges Park Poe-dae (Presiding Judge) Lee Jae-hoon