(영문) 대전고등법원 청주재판부 2019.6.4. 선고 2018누990 판결

Since the reasoning of the judgment of the first instance is the same as that of the relevant part of the judgment, it shall be quoted as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion and the related statutes

Since the reasoning of the judgment of the first instance is the same as that of each corresponding part of the judgment, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination

1) The inconsistency with the Constitution and the scope of provisional application

Article 64(1) of the former National Pension Act (amended by Act No. 15267, Dec. 19, 2017; hereinafter referred to as the "former Act") provides that the right to receive a divided pension shall be recognized on the basis of the period of legal divorce. The former Act stipulates that the period during which there was a legal divorce, but there was no substantial marital relationship due to a separate or separation from the family, shall be included in the period of marriage in the calculation of the divided pension.

In the Supreme Court Decision 2015HunBa182 Decided December 29, 2016, the Constitutional Court determined that the provision of the former Act was in violation of property rights of old age pension beneficiaries beyond the discretion of legislative power by excluding the property rights of the divided pension system that has the character of property rights and social security. Furthermore, in the event that the provision of the former Act is declared as a simple constitutional order and becomes null and void immediately, the provision of the right to receive the divided pension of a divorced spouse who has contributed to the formation of the right to receive old age pension also becomes null and void, and the provision of the right to receive the divided pension of a divorced spouse who has contributed to the formation of the right to receive old age pension also becomes null and void, and ② the legislators made a broad decision on the grounds that there is no substantial marital relationship in any case when establishing the improved legislation, how to determine the specific procedure or method to consider the period during which there was no substantial marital relationship, and made a decision on the amendment of the former Act as the time limit on June 30, 2018 (hereinafter referred to as “instant ruling of inconsistency”).

According to the unconstitutionality of the provisions of the former Act, the Constitutional Court's ruling of inconsistency with the Constitution and the grounds for provisional application of the provisions of the former Act, it is necessary to continue to apply the provisions of the former Act until a certain time even though the Constitutional Court confirmed the unconstitutionality of the provisions of the former Act.

The grounds for respecting the right to form legislation on the specific type, method, procedure, etc. of the period of marriage excluded from the calculation of divided pension are merely related to the need to make a decision of inconsistency with the Constitution, which contains the purport of demanding legislative improvement instead of simply making a decision of unconstitutionality on the provisions of the former Act, and cannot be viewed as the grounds for continuing to maintain the status of infringement of fundamental rights under the former Act until the legislative amendment

Therefore, the part of the decision of inconsistency with the Constitution of the Republic of Korea ordering the continuance of the provision of the former Act is a provision that can continue to maintain the entitlement to a divided pension of a divorced spouse who has contributed to the formation of entitlement to an old age pension. In other words, the part that uniformly included "the period during which a de facto marital relationship has not existed due to separate or separation from one another" in the interpretation of the former Act should be deemed to be in the status of suspension of application.

2) The amendment of the National Pension Act and the retroactive effect of the decision not to incorporate the Constitution

Article 64(1) of the National Pension Act (amended by Act No. 15267, Dec. 19, 2017; Article 64(1) of the same Act excludes the period during which there was no actual marital relationship for the calculation of divided pension due to the reason of separation, withdrawal, etc., and newly established Article 64(4) of the same Act which provides that “the necessary matters concerning the criteria and method for the recognition of the period of marriage under paragraph (1) shall be prescribed by Presidential Decree.” Meanwhile, Article 2 of the Addenda of the amended National Pension Act (amended by Act No. 15267, Dec. 19, 2017) provides that the said provisions shall apply to the case where the first ground for the payment of divided pension occurred after the enforcement of this Act

As long as the Constitutional Court has made a decision of inconsistency with the Constitution as to any of the provisions of the law and imposes the legislative discretion on the legislative body’s formation discretion to revise or abolish the provisions of the law, the retroactive application of the provisions of the law and the scope of retroactive application, in principle, depends on the legislative discretion. However, considering the purport of the decision of inconsistency with the Constitution as to the provisions of the former Act or the guarantee of effectiveness of specific norm control in the adjudication of inconsistency with the Constitution, at least, the retroactive effect of the decision of inconsistency with the Constitution as to the pertinent provisions of the former Act and the cases pending in the court as at the time of the decision of inconsistency with the Constitution as to the pertinent provisions of the former Act and the issue of whether the provisions of the former Act are unconstitutional or not, shall be deemed to affect the retroactive effect of the instant case. Therefore, even if these cases are not included in the scope of the transitional measures as referred to in Article 2 of the Addenda to the National Pension Act (see, e.g., Supreme Court Decisions 200Du3980, Apr. 298, 2002).

3) Determination on the instant case

According to the records, the plaintiff applied to the first instance court for an adjudication on the unconstitutionality of a provision of the former Act, but was dismissed by the first instance court, and the first instance court filed a constitutional complaint seeking to confirm the unconstitutionality of a provision of the former Act based on Article 68 (2) of the Constitutional Court Act, and received a decision on the non-conformity of the current Act. Thus, this case constitutes a case as to the pertinent case as to the non-conformity of the Constitution as to the pertinent case, where the unconstitutionality of the amended National Pension Act, is retroactive, and thus, the relevant provision

In light of the above legal principles, comprehensively taking account of each of the statements in Gap evidence Nos. 2 through 5 (including each number), the plaintiff maintained his/her eligibility to receive early old age pension from January 1, 1988 to December 31, 2008, and acquired his/her entitlement to receive early old age pension on June 14, 2010. The plaintiff completed a marriage report with C on August 15, 1975 and maintained a legal marital relationship and adjusted a judicial divorce on April 21, 2004. However, C, on November 1, 1986, prior to the commencement of the plaintiff's national pension coverage period, was withdrawn from around November 1, 1986, and thereafter, it can be recognized that it was not maintaining a substantial marital relationship, such as the plaintiff's and his/her children's lack of contact or contact.

According to the above facts, as long as C was in a de facto marital relationship with the Plaintiff during the insured period of the Plaintiff’s national pension, so C does not constitute “spouse for whom the period of marriage is not less than five years during the insured period of the national pension under Article 64(1) of the National Pension Act, and thus, the instant disposition made on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with a different conclusion, and it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim.