2018du55418 Demanding revocation of the disposition to receive a refund for the military pension payment period

Plaintiff:

Law Firm Yang Hun-tae, Counsel for defendant-appellant

Attorney Han-soo et al., Counsel for the defendant

Head of the National Armed Forces Administration

Seoul High Court Decision 2018 - 41510 decided August 14, 2018

December 27, 2019

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. 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, Nonparty 1 (hereinafter referred to as “the Deceased”) of the Army Decree Nonparty 1 (hereinafter referred to as “the Deceased”). Nonparty 2 and Nonparty 3 are the parents of the Deceased, and the Plaintiff is the deceased’s spouse at the time of the deceased’s death. Nonparty 4 is the deceased’s spouse at the time of the deceased’s death.

10. The deceased’s children born on 22.

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

3) On 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 with the “○○○○, a person who is a virtual person,” and the Defendant was unable to recognize a de facto marital relationship and demanded to submit additional data. On June 10, 2016, the Plaintiff submitted a marriage certificate with Nonparty 5, U.S., U.S., and entered such fact in the Plaintiff’s family relations register.

4) Nonparty 2 and Nonparty 3 lost the right to receive the survivor pension by re-re-expling the Plaintiff, and Nonparty 4 also lost the right to receive the survivor pension on October 22, 2009. In June 2016, the Defendant filed a claim against the Defendant for the transfer of the right to receive the survivor pension. The Defendant issued a disposition suspending the transfer of the right to receive the survivor pension against Nonparty 2 and Nonparty 3 on July 22, 2016 on the ground that: (a) Nonparty 2 and Nonparty 3 did not exercise their right to receive the survivor pension for five years from the date on which Nonparty 4 lost the right to receive the survivor pension; and (b) Nonparty 3 did not exercise their right to receive the survivor pension for five years as prescribed by the Military Pension Act; and (c) on March 30, 2016, the Defendant did not lose the right to receive the survivor pension on March 30, 2006; and (d) Nonparty 2 and Nonparty 3 for five years and six months from May 1 and six months from the end.

6) Meanwhile, from 2008 to 2012, the Minister of National Defense sent a notice to the Military Pension Division of the Ministry of National Defense within 30 days from the date of occurrence of the reason that, in the case of a beneficiary of the Military Pension who received the Military Pension every year, "the beneficiary of the Military Pension who received the Military Pension after the death of his spouse," "the beneficiary of the Military Pension under the Military Pension Act," "the beneficiary of the deceased spouse's de facto marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital marital status," and "the beneficiary of the Military Pension Act shall lose the beneficiary's right to receive pension within 30 days from the date of occurrence of the above reason," to the beneficiary of the Military Pension Act.

B. The key issue of the instant case is: (a) the Plaintiff lost the right to receive a survivor’s pension on March 30, 2006 by re-maring the Plaintiff on March 30, 2006; and (b) the amount of monthly survivor’s pension received

In relation to this issue, whether the pension to be paid to Nonparty 4, Nonparty 2, etc., who is the beneficiary of the next higher priority survivor pension, can be deemed to have been paid by the Plaintiff instead of the Plaintiff, and the public interest needs to be taken to recover the pension against the Plaintiff, thereby infringing the Plaintiff’s private interest.

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

A. The former Military Pension Act (amended by Act No. 11614, Mar. 3, 2013) in force at the time the Plaintiff remarriedd with the United States on June 30, 2006

22. According to Article 11632 of the Act, where a person who is or was a soldier dies while serving in the line of duty due to a disease or injury caused by official duty, "bereaved family member" shall be paid a survivor pension (Article 26 (1) 3); "bereaved family member" means a spouse, child, parent, grandchild or grandparent who is supported by him/her at the time of the soldier's death (Article 3 (1) 4); the priority order of bereaved family members to receive the survivor pension shall be the order of property inheritance; when a person who is entitled to receive the survivor pension retires at the age of 18 (Article 29 (1) 3); when a person who is not in the degree of disability prescribed by Presidential Decree reaches the age of 18, the person entitled to the survivor pension shall lose his/her entitlement to the survivor pension if the person who received the pension benefits at the time of his/her death reaches the age of 20 days (Article 26 (1) 4); when a person who received the pension benefits at the time of his/her death due to the beneficiary, the Minister of National Defense shall file a report on loss of pension.

B. Meanwhile, under the Private International Act, the requirements for establishment of a marriage shall be determined by the law of the domicile of each party with respect to each party (Article 36(1)), and the method of marriage shall be determined by the law of the place of marriage or the law of the domicile of either party (Article 36(2) main text). This provision purports that where a marriage between Korean people or between Korean people and foreigners takes place in a foreign country, the method of marriage shall be determined by the law of the place of marriage. When a marriage procedure is completed in accordance with the method prescribed by the law of the country, the marriage shall be effective, even if the marriage is not reported separately under the law of the country, and it does not affect the establishment of a marriage even if the party reports a marriage pursuant to Articles 34 and 35 of the Act on the Registration, etc. of Family Relationship, which is not a creation report, but a report on a marriage already established and effective (see Supreme Court Decision 94Meu413, Jun. 28, 1994).

C. Examining the facts as seen earlier in light of the relevant provisions and legal principles, the Plaintiff is 206.

3. 30. In the United States of America, the process of marriage according to the method prescribed by the law of the country has become effective, and the right to receive a survivor pension related to the deceased's death on duty has been lost, and the monthly survivor pension which the plaintiff received every month without reporting the loss of the right to receive a pension shall be deemed to be subject to a recovery disposition under Article 15 of the Military Pension Act.

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 submitted the “Report on Loss of Right to Receive a Survivors’ Pension” around April 2016, the Minister of National Defense or the Defendant paid the monthly survivor’s pension to the Plaintiff on the premise that the Plaintiff is a legitimate beneficiary of the survivors’ pension, and Nonparty 4 and Nonparty 2 and Nonparty 3 as a legitimate beneficiary of the survivors’ pension, the Plaintiff did not have paid the monthly survivor’s pension to the Plaintiff.

Even after the marriage, the Plaintiff received a monthly survivor pension paid to the Plaintiff himself/herself, and cannot be deemed to have intended to receive a monthly survivor pension paid to the Plaintiff on behalf of Nonparty 4 and Nonparty 2 and Nonparty 3.

B. The lower court did not err by misapprehending the legal doctrine on the confirmation of the recipient of the survivor pension, contrary to what is alleged in the grounds of appeal. The lower court’s determination that the right to receive the survivor pension expired by the statute of limitations is merely an additional judgment in cases where the Plaintiff assumed that the Plaintiff received the survivor pension instead of his/her survivor pension, and thus, cannot affect the conclusion

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 revocation of the beneficial administrative disposition on benefits in the area of social security administration, in cases where recovering the amount of benefits erroneously paid from the person who received the benefits pursuant to Article 15(1) of the Military Pension Act, such restitution should be made again based on whether there is a cause attributable to the party, such as intentional or gross negligence, with respect to the supply and demand of the benefits, and the amount of the benefits paid, the date on which the decision on the payment of the benefits was revoked, and the time interval between the date on which the decision on the payment of the benefits was made and the date on which the benefits were recovered, and whether the benefits were consumed by the recipient, and the details and degree of disadvantage suffered by the party through the recovery of the amount corresponding to the benefits paid erroneously, and by examining the specific contents of the public interest needs to recover the amount of the benefits paid erroneously paid, and the circumstances such as the degree of disadvantage suffered by the party to the disposition, the need to measure the amount corresponding to the benefits paid erroneously and the protection of trust and stability of legal life.

B. We examine the above facts in light of the legal principles as seen earlier. (1) The Military Pension Act enacted on January 28, 1963 by Act No. 1260, and provided that "re-re-born" as the ground for the loss of entitlement to the survivors' pension (Article 29(1)2), and the Enforcement Decree of the Military Pension Act, after the amendment by Presidential Decree No. 10642 on December 9, 1981, the beneficiary of the survivors' pension lost his/her entitlement, submitted a report on the loss of entitlement to the survivors' pension to the Minister of National Defense within 30 days (Article 37(2) of the former Enforcement Decree). In addition, the Minister of National Defense or the defendant sent a written notice to the Minister of National Defense from 2008 that the beneficiary of the survivors should have known or sufficiently known that the beneficiary of the survivors would lose his/her entitlement to the survivors' pension when taking account of these facts.

2) Nevertheless, the Plaintiff received a monthly survivor pension without reporting the fact that he/she was remarried on March 30, 2006 and until June 2016. The Plaintiff submitted a false report on the loss of the right to receive pension, which was a family member’s family member’s family member, around April 2016, but did not accept the said report. From June 10, 2016, the Plaintiff submitted a marriage certificate concerning the fact that he/she remarriedd in the past United States and corrected the Plaintiff’s statement in the family relation register. 3) Even if the Plaintiff lost the entitlement to receive the survivor pension on March 30, 2006 and was unjustly received the survivor pension on July 26, 2016, Nonparty 5-year statute of limitations as prescribed by the Military Pension Act from around 123 months to 20 years before the date of recovery of the child’s child’s child’s retirement pension, which was unfairly recovered from around 16th, 2016 to the date of recovery.

4) Ultimately, inasmuch as the Plaintiff is seriously attributable to the Plaintiff, even though the Plaintiff remarriedd and received the long-term survivor pension even though the cause for loss of entitlement to the survivor pension occurred, the need for recovery ought to be deemed as much more serious than the disadvantages the Plaintiff would incur.

C. In the same purport, the lower court determined that the public interest gained by the Plaintiff from the instant recovery disposition on the monthly survivor pension received after the Plaintiff’s marriage was more serious than the disadvantage that the Plaintiff would suffer. 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 the grounds of appeal

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.

Justices Lee Ki-taik

Justices Kim Jong-il

Justices Park Il-san

Jeju High Court Justice Kim Jong-soo