[1] Legislative intent of Article 36 of the Act on Private International Law concerning the formation of a marriage, and, in cases where a Korean citizen and a foreigner have completed marriage procedures in accordance with the law of the country where they are married to a foreign country, whether a marriage is established separately by filing a report of marriage in accordance with Korean law (negative)

[2] A disposition to recover the amount corresponding to the amount of benefits erroneously paid to a party who received the benefits pursuant to Article 15(1) of the former Military Pension Act is considered and the above disposition is possible

[3] In a case where: (a) the spouse B of the soldier A who died on duty was paid monthly survivor pension from October 1992 to June 10, 2016 after the decision to pay the survivor pension was made; and (b) submitted a marriage certificate concerning the fact that he remarriedd in the United States on June 10, 2016 and entered in the family relations register; (c) the head of the National Armed Forces Finance Management Office rendered a disposition to recover the amount that “B shall recover the aggregate of the amount of monthly demand for 59 months, from among the amount of the amount of the 123-month survivor pension for which the five-year extinctive prescription under the Military Pension Act was not completed; (d) the amount of monthly survivor pension paid after the completion of the marriage procedure in the United States constitutes the subject of recovery disposition under Article 15 of the former Military Pension Act; and (e) the amount of monthly survivor pension paid to B and its parents shall not be deemed to have received the monthly survivor pension instead of the amount of monthly survivor pension paid to B or A’s parents;

[1] Article 36 of the Private International Act; Articles 34 and 35 of the Act on the Registration, etc. of Family Relationship / [2] Article 15 of the former Military Pension Act (Amended by Act No. 11632, Mar. 22, 2013) / [3] Articles 3(1)4, 12, 15, 26(1)3, 29(1), and 42 of the former Military Pension Act; Article 57(2) of the former Enforcement Decree of the Military Pension Act (Amended by Presidential Decree No. 22467, Nov. 2, 2010)

[1] Supreme Court Decision 94Meu413 decided Jun. 28, 1994 (Gong1994Ha, 2105) / [2] Supreme Court Decision 2015Du43971 decided Mar. 30, 2017 (Gong2017Sang, 884)

Plaintiff (Law Firm Yang, Attorneys Han-soo et al., Counsel for the plaintiff-appellant)

Head of the National Armed Forces Administration

Seoul High Court Decision 2018Nu41510 decided August 14, 2018

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

The grounds of appeal are examined.

1. Case summary and key issue

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

1) On September 14, 1992, Nonparty 1 (hereinafter “the deceased”) died on duty. Nonparty 2 and Nonparty 3 are the parents of the deceased, who were married with the deceased on April 30, 1990, and are the deceased’s spouse at the time of the deceased’s death. Nonparty 4 is the deceased’s children born (date of birth omitted) between the deceased and the Plaintiff.

2) After the Deceased’s death on duty, the Plaintiff received the monthly survivor pension from October 1992 to June 2016 through the determination of the Minister of National Defense to pay the survivor pension.

3) Around April 2016, the Plaintiff submitted to the Defendant a report on the loss of entitlement to a survivor pension on the ground that he/she commenced an educational agenda with “Nonindicted 5,” a person who is a virtual figure, and the Defendant cannot recognize a de facto marital relationship and demanded the Defendant to submit additional data. Accordingly, on June 10, 2016, the Plaintiff submitted a marriage certificate with Nonparty 6, U.S., U.S., and entered such fact in the Plaintiff’s family relations register.

4) Nonparty 2 and Nonparty 3 filed a request with the Defendant for the transfer of entitlement to the survivor pension on the grounds that “the Plaintiff was divorced, lost the entitlement to the survivor pension, and lost the entitlement to the survivor pension under the age of 18 (the date omitted).” On June 2016, the Defendant rejected the transfer of entitlement to the survivor pension against Nonparty 2 and Nonparty 3 on the ground that the entitlement to the survivor pension was extinguished due to Nonparty 4’s failure to exercise their entitlement to the survivor pension for five years from the date on which Nonparty 2 and Nonparty 3 lost the entitlement to the survivor pension, and the entitlement was extinguished due to the completion of the period of five years as prescribed by the Military Pension Act.

5) On July 26, 2016, the Defendant issued the instant restitution disposition against the Plaintiff, stating that “The Plaintiff shall recover KRW 65,023,070, the aggregate of the monthly wage for 59 months from August 201 to June 2016, from among the amount of the amount of the survivors’ pension for 123 months, which was unjustly received by the Plaintiff, once he/she remarriedd on March 30, 2006 and lost the entitlement to the survivors’ pension.”

6) Meanwhile, from 2008 to 2012, the Minister of National Defense sent a notice to the pension recipients under the Military Pension Act, stating that “In the case of a de facto marriage and re-re-employment of a deceased soldier’s spouse, the Minister of National Defense shall lose the right to receive pension in the case of a de facto marriage and re-employment of a deceased soldier’s spouse, and that “in the case of a de facto marriage of a deceased soldier’s spouse and a person who received a survivor’s pension, the person who is a child or grandchild, who has attained the age of 18, etc., within 30 days from the date of the occurrence of the cause, the Minister of National Defense shall notify the survivor pension recipients under the Military Pension Act of the content that “from 2013 to

B. The key issue of the instant case is: (i) whether the Plaintiff lost the entitlement to a survivor pension by re-reproving on March 30, 2006; (ii) whether the monthly amount of the survivor pension received thereafter becomes subject to a recovery disposition under Article 15 of the Military Pension Act; (iii) whether the Plaintiff may be deemed to have received the pension to be paid to Nonparty 4 and Nonparty 2, etc., who are the next beneficiary of the survivor pension; and (iii) whether the need for the public interest to recover the pension against the Plaintiff is more serious than the Plaintiff’s private interest to be infringed upon.

2. Whether the person is subject to restitution under Article 15 of the Military Pension Act.

A. According to the former Military Pension Act (amended by Act No. 11632, Mar. 22, 2013; hereinafter “Act”) enforced on June 30, 2006 with the U.S. and the person who was a soldier or a veteran died in the line of duty due to a disease or injury caused by official duties, a survivor pension shall be paid to the “bereaved family” (Article 26(1)3); “bereaved family member” refers to the spouse, children, parents, grandchildren, grandparents who were supported by the soldier at the time of his/her death (Article 3(1)4); “The bereaved family member’s priority order shall be the order of property inheritance (Article 12); “the person who was entitled to the survivor pension benefits” (Article 29(1)2); “the person who was paid the survivor benefits shall lose entitlement to the survivor benefits when his/her child who did not reach the age of 18” (Article 29(1)2); “the person who was unable to receive the benefits” shall be submitted to the Minister of the Minister of National Defense within 20 days before his/her death.

B. Meanwhile, under the Private International Act, the requirements for establishment of a marriage shall be governed by the law of the domicile of each party with respect to each party (Article 36(1)), and the method of marriage shall be governed by the law of the place of marriage or the law of the domicile of either party with respect to each party (Article 36(2) main text). This provision purports that the method of marriage shall be determined by the law of the place of marriage in the case of marriage between Korean people or between Korean people and foreign nationals, and that the method of marriage shall be established in the case of the completion of the marriage procedure in accordance with the method provided by the law of the country. A marriage shall be effective in the case of the completion of the marriage procedure in accordance with the method provided by the law of the country, even if the marriage is not reported under Korean law, and even if the party reports the marriage pursuant to Articles 34 and 35 of the Act on the Registration, etc. of Family Relationships, this is not a creative report, but a report on the marriage already established (see Supreme Court Decision 94Meu413, Jun.

C. Examining the aforementioned facts in light of the relevant provisions and legal principles, the Plaintiff came into effect on March 30, 2006 by undergoing the marriage procedure in accordance with the method prescribed by the law of the country in the United States, and lost the deceased’s entitlement to a survivor’s pension related to the deceased’s death on duty. The monthly survivor’s pension that the Plaintiff received every month thereafter constitutes “a case where the Plaintiff received excessive benefits without filing a report on the loss of entitlement to a pension,” and should be deemed as a subject of

3. Whether the Plaintiff may be deemed to have received the survivors’ pension on behalf of Nonparty 4, Nonparty 2, and Nonparty 3

A. Before the Plaintiff submits a report on the loss of entitlement to a survivor pension on April 2016, the Minister of National Defense or the Defendant paid a monthly survivor pension to the Plaintiff on the premise that the Plaintiff is a legitimate beneficiary of the survivor pension; and the Plaintiff does not have paid the monthly survivor pension to the Plaintiff by deeming Nonparty 4 or Nonparty 2 and Nonparty 3 as a legitimate beneficiary of the survivor pension and as the intent to pay the monthly survivor pension to the Plaintiff. The Plaintiff merely received the monthly survivor pension paid to the Plaintiff himself/herself after re-employment, and cannot be deemed that the Plaintiff intended to receive the monthly survivor pension on behalf of Nonparty 4 or Nonparty 2

B. The judgment of the court below to the same purport does not err by misapprehending the legal principles as to the confirmation of the recipient of the survivor pension, contrary to what is alleged in the grounds of appeal. The judgment of the court below that the right to receive the survivor pension expired by the prescription of Nonparty 2 and Nonparty 3 is merely an additional judgment in the case where the plaintiff assumes that he received the survivor

4. Whether a disposition for recovery is important for the public interest.

A. In full view of the aforementioned provisions and purport of the Military Pension Act and the unique characteristics of revoking the beneficial administrative disposition in the area of social security administration, restitution of the amount equivalent to the amount of benefits erroneously paid from the party who received the benefits pursuant to Article 15(1) of the Military Pension Act should be made based on whether there is a cause attributable to the party, such as intentional or gross negligence, with respect to the amount of the benefits paid, the date on which the decision on the payment of the benefits was revoked, and the interval between the date on which the decision on the payment of the benefits was made and the date on which the recovery was made, and whether the amount of the benefits was consumed by the recipient, and other circumstances such as the details and degree of the need for public interest to be achieved through the recovery of the amount corresponding to the benefits erroneously paid, and the contents and degree of disadvantage suffered by the party to the disposition, and the need to recover the amount equivalent to the amount of benefits erroneously paid should be compared and compared to the need for public interest, protection of trust, and infringement of legal living stability, etc., and thus, restitution should be made only to the extent that public interest is justified (see).

B. We examine the above facts in light of the aforementioned legal principles.

1) From the time when the Military Pension Act was enacted by Act No. 1260 on January 28, 1963, Article 29(1)2 of the Enforcement Decree of the Military Pension Act provides that “re-litigation” was a ground for the loss of entitlement to the Military Pension (Article 29(1)2 of the Enforcement Decree of the Military Pension Act). After the amendment by Presidential Decree No. 10642 on December 9, 1981, the Military Pension Act stipulates that a person entitled to the Military Pension loses his/her entitlement, he/she shall submit a report on the loss of entitlement to the Military Pension (Article 37(2) of the Enforcement Decree of the Military Pension Act), along with supporting documents, to the Minister of National Defense within 30 days when he/she loses his/her entitlement to the Military Pension (Article 37(2) of the Enforcement Decree of the Military Pension Act). In addition, the Minister of National Defense or the Defendant sent a written notice demanding to report

2) Nevertheless, the Plaintiff received a monthly survivor pension without filing a report on the fact that he/she was remarried on March 30, 2006 and until June 2016. Around April 2016, the Plaintiff submitted a false report on the loss of the right to receive pension, namely, “non-party 5” and “inter-party 5,” which is a person on family affairs, but the said report was not accepted, but only on June 10, 2016, submitted a marriage certificate concerning the past fact that he/she remarried in the United States and corrected the entry in the Plaintiff’s family relations register.

3) Of the amount of the amount of the survivor pension unfairly paid to the Plaintiff on March 30, 2006, the part of the amount of the survivor pension which was unfairly paid to the Plaintiff on July 26, 2016 and lost the entitlement to the survivor pension, the period of five years under the Military Pension Act has expired as of the time of the recovery disposition in this case. The recovery disposition in this case is limited to the amount of 59 months from August 201, where the five-year prescription has not yet expired as of the time of the recovery disposition in this case, until June 2016. If the Plaintiff used the survivor pension unfairly paid to the minor who is the bereaved family member from August 201 to June 2016, it may be harsh to recover it. However, Nonparty 4 had already reached the age of 18 and lost the entitlement to the survivor pension. Thus, even if Nonparty 4 paid the survivor pension unfairly received during the above period to Nonparty 4’s educational expenses and child support, the recovery disposition in this case cannot be denied solely on the ground that the Plaintiff was fully recovered.

4) Ultimately, inasmuch as the Plaintiff is seriously attributable to the Plaintiff, even though the Plaintiff remarriedd and received a long-term survivor pension even though the cause for loss of entitlement to the survivor pension occurred, it should be deemed that public interest needs to be more serious than the disadvantage the Plaintiff would incur.

C. In the same purport, the lower court determined that the public interest gained by the Plaintiff’s taking the instant recovery disposition against the monthly survivor pension that the Plaintiff received after re-retirement was more serious than the disadvantage the Plaintiff would incur. In so determining, the lower court did not err by misapprehending the legal doctrine on the revocation of the beneficial administrative disposition, contrary to what is alleged in

5. 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 on the bench.

Justices Lee Ki-taik (Presiding Justice)