2018Nu62326 Revocation of revocation of a decision not to approve succession to a survivor pension

A

Attorney Lee Chang-woo, Counsel for the defendant-appellant

The Government Employees Pension Service

Seoul Administrative Court Decision 2014Guhap3723 decided March 27, 2015

Seoul High Court Decision 2015Nu40448 Decided April 6, 2016

Supreme Court Decision 2016Du37782 Decided August 30, 2018

November 16, 2018

January 11, 2019

1. The defendant's appeal is dismissed.

2. The defendant bears the total costs of the lawsuit after the filing of the appeal.

1. Purport of claim

The defendant's non-approval disposition of survivor pension succession made against the plaintiff on September 27, 2013 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

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

The reasoning of this judgment is as follows, with the exception of adding or adding the following among the reasons of the judgment of the court of first instance as to the main defense alleged by the defendant, and the reasoning of the judgment of the court of first instance is identical to that of the court of first instance, and therefore, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

The "Enforcement Decree of the Public Officials Pension Act" of the 9th Public Officials Pension Act was revised by Presidential Decree No. 29181, Sept. 18, 2018; hereinafter the same).

The "Enforcement Decree of the Public Officials Pension Act" in the 20th 2nd 2nd , is regarded as the "Enforcement Decree of the Public Officials Pension Act".

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○ 4, 8, 5, 6, 7, and 8, respectively, "this court" shall be "court of the first instance".

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The parts from 11 to 18 of the 5th parallel shall be as follows:

[1] Relevant legal principles

According to Articles 3(1)3(b) and (2)2 and 56(1)1 of the former Public Officials Pension Act (wholly amended by Act No. 15523, Mar. 20, 2018; hereinafter the same), Article 3(2) of the former Enforcement Decree of the Public Officials Pension Act (amended by Act No. 15523, Mar. 20, 201); Article 3(2) of the former Enforcement Decree of the Public Officials Pension Act, a survivor pension shall be paid to a child aged 19 or older who was a public official entitled to receive a retirement pension and has been supported by him/her at the time of his/

According to the Enforcement Decree [Attachment 3], “persons who have a significant climate or physical disability in spine” shall be determined by disability grade 6, and “persons who have failed to use one pipe out of the three sections of a bridge” shall be determined by disability grade 8.

According to the Enforcement Rule of the former Enforcement Rule of the Public Officials Pension Act (wholly amended by Ordinance of the Prime Minister No. 1489, Sep. 21, 2018; hereinafter the same shall apply), Article 23 [Attachment Table 1] of the former Enforcement Rule of the Public Officials Pension Act (wholly amended by Ordinance of the Prime Minister No. 1489, Sep. 21, 2018; hereinafter the same shall apply) (hereinafter referred to as the "Enforcement Rule of the attached Table 1] provides that "persons whose actual exerciseable area in spine is limited to not more than 1/2 of the area of normal exerciseable area" (7. (a. 3)] of the Enforcement Decree [Attachment 3] of the former Public Officials Pension Act (hereinafter referred to as "persons who have become unable to take part in spine] of the Enforcement Decree of the former Public Officials Pension Act (hereinafter referred to as "persons whose area has been restricted to not more than 3/4 of the area of movement due to damage to horses, ne.

On the other hand, the Enforcement Rule [Attachment 1] provides for a special rule on the determination of disability ratings with respect to the protein escape certificate. According to this, ① in cases where there is any incomplete vertebral frithy, after undergoing an operational treatment, the class 12 shall apply (7. b. 4; hereinafter referred to as “special rule on protegye mathy”), ② in cases where the verte is performed after the removal of protegy signboards, the class 8 shall apply (7. b. 5; hereinafter referred to as “special rule on protegye frithy”).

In view of the fact that disability assessment is a principle to evaluate the physical function at the time of assessment regardless of the cause of disability, regardless of the cause of disability, and that each of the above special rules evaluates the disability grade disadvantageously compared to that of other inverte diseases on the ground that it was performed with respect to the vertegal escape certificate, etc., ① special rules related to vertegalopsis shall be applied only to the cases where it was administered only to the vertegal escape certificate, and ② special rules related to vertebrate fixedness shall be applied only to the cases where the operation was performed only to the vertegal escape certificate.

Therefore, in cases where an operation is conducted with respect to spine diseases other than inverte escape symptoms, or where an operation on spine diseases other than inverte escape symptoms becomes the cause of spine fixing inverte, barring any special circumstance, each of the above special rules shall not apply, and in this case, evaluation of each disability shall be based on the general principle (see Supreme Court Decision 2016Du37782, Aug. 30, 2018).

The Enforcement Rule of the Public Officials Pension Act [Attachment Table 1] (hereinafter referred to as the "Enforcement Rule" in attached Table 1] shall be amended by the Enforcement Rule [Attachment Table 1] of the 6th 4th 5th 6th 6th 6th 6th 5th

○ 6th 17th 6th 17th "Enforcement Rules [Attachment 1] 7. b] are applied to "Special Rules related to vertebifting".

The following shall be added to the 7th page 16th page:

“C) In other words, the Defendant asserts to the purport that the disability of the Plaintiff’s left-hand booming shall be subject to the disability grade 12 or 11, in accordance with the spinal mafin special rule.

However, the special rule on spinal mafin shall apply only to cases where he/she received an surgery only to the verteul escape certificate. Since the plaintiff has undergone surgery on spine finite finite finite finite finite finite, not only the above special rule but also the general principle, the plaintiff must evaluate the degree of disability in accordance with the general principle. Therefore, the defendant's

The "Public Officials Pension Act" of the 19th 3th Do, is regarded as the "former Public Officials Pension Act".

The "Enforcement Decree of the Public Officials Pension Act" in the 23th 9th 23th , is regarded as the "Enforcement Decree of the Public Officials Pension Act".

The "Enforcement Rule of the Public Officials Pension Act" in the 13th 10th Do, shall be amended as the "Enforcement Rule of the Public Officials Pension Act".

○ 11.On the 13th page, the following shall be added:

“4) The determination of a disability shall be made after an operational treatment is cured, as follows:

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2. Additional matters to be determined;

A. The defendant's assertion

On February 18, 2014, the Plaintiff filed a lawsuit seeking revocation of the decision of reexamination, and subsequently revoked the above claim and sought revocation of the decision of non-approval of succession to a survivor pension, which is the original disposition, on April 17, 2014. The claim was subsequently amended in an exchange of a lawsuit to modify the purport of the lawsuit. On April 17, 2014, the date of filing the new lawsuit, was three months after September 27, 2013, which is the date of original disposition, and thus, the instant lawsuit is unlawful because it fails to comply with the period of filing the lawsuit.

B. Determination

1) According to Article 20 of the Administrative Litigation Act, a revocation suit shall be instituted within 90 days from the date when the person becomes aware of the disposition, etc., but the period for filing an administrative appeal claim shall begin from the date when the original copy of the written judgment is served in cases where the person can file an administrative appeal claim. In addition, in cases where the previous lawsuit is withdrawn after an exchange of the purport of the claim is changed and a new lawsuit is deemed to have been instituted, compliance with the period for filing a lawsuit against the new lawsuit shall be determined as of the time when the lawsuit is changed in principle. Meanwhile, in cases where the nature of the purport of the claim itself is unclear as to whether the party claims a matter of a lawsuit, but where the party claims that is the subject of a lawsuit due to the cause of the claim, the court must clarify whether the purport of the claim is identical to the fact of the claim, and where the purport of the claim is changed and clarified, it shall not be deemed

2) Comprehensively taking account of the overall purport of the arguments in Evidence A Nos. 1 and 2, the Plaintiff filed a request for review with the Public Official Pension Benefit Review Committee on the instant disposition. The Plaintiff’s decision of dismissal following the review on December 11, 2013 of the Committee was served on the Plaintiff on December 23, 2013, and the Plaintiff filed the instant lawsuit with the Defendant as the Public Official Pension Service on February 18, 2014, and the purport of the claim was revoked on December 11, 2013. However, it is reasonable to consistently state that “the Plaintiff filed a request for review on April 7, 2014 to change the purport of the request to “the Plaintiff’s rejection of the Plaintiff’s request for review on the ground that the Plaintiff did not submit a request for review on succession to the survivors’ pension which was made against the Plaintiff on September 25, 2013,” and to revoke the Plaintiff’s request for review on the ground of rejection of the Plaintiff’s claim.

3) In light of the above facts, the Plaintiff stated the subject of revocation in the instant lawsuit as “decision on non-approval of succession to the survivors’ pension,” rather than “decision on dismissal of the Review Committee,” the Defendant designated as “Public Official Pension Benefit Review Committee,” and the Plaintiff could not have confirmed the date of the instant disposition at any time. As such, the Plaintiff asserted that the “Defendant Corporation’s non-approval of succession to the survivors’ pension as of February 18, 2014,” as the cause of the claim, was the subject of the instant lawsuit, and can be seen as having clearly modified the purport of the claim by modifying the purport of each claim on April 7, 2014 and October 28, 2014.

Therefore, as long as the plaintiff filed an administrative appeal within 90 days from the date on which he became aware of the disposition of this case and received the original copy of the written adjudication, the lawsuit of this case is lawful as complying with the period for filing the lawsuit, and the defendant's main safety defense is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee Jae-young

Judges Shin Jin-hee

Judges Lee Jae-chul