[1] In a case where one of the married couple actually receives a public official retirement pension at the time of the closure of the arguments in a divorce lawsuit, whether the right to receive the retirement pension already generated is included in the property division (affirmative in principle), and whether it is possible to divide the property by way of periodic payment to the other spouse of the amount equivalent to a certain ratio of the monthly retirement pension to be received by

[2] In a case where a division of property is made with respect to a public official’s entitlement to retirement pension by means of a regular fund, whether a division ratio may be separately determined by distinguishing the public official’s entitlement to retirement pension from other general property (affirmative), and the

[1] (A) The division of property under Article 839-2 of the Civil Act is mainly aimed at liquidation and distribution of the actual common property acquired during the marriage. Thus, as long as the married couple has property achieved through mutual cooperation when a judicial divorce is conducted, the court shall determine the amount and method of division by taking into account all the circumstances of both parties, such as the degree of contribution to the formation of property at the request of the parties.

(B) In a case where one of the couple actually receives a public official retirement pension at the time of the closure of the arguments in a divorce lawsuit, the above public official retirement pension is mixed with the nature of social security benefits as well as the nature of wage inseparably indivisible. As such, insofar as the other spouse’s cooperation is recognized with respect to his/her service during the marriage period, at least the amount corresponding to the pertinent period of the public official’s entitlement to retirement pension can be deemed as property achieved through mutual cooperation among both spouses. Therefore, if it is not permissible in light of the purport of the property division system, it is reasonable to deem that the entitlement to public official’s retirement pension already occurred may be included in the property division like real estate. Specifically, it is possible to divide the property division method by which the beneficiary’

(C) In light of the following, even if the right to receive a public official’s retirement pension is not itself a right to receive a public official’s retirement pension, and the right to receive a public official’s retirement pension, which is the subject of property division, does not fall under the object of inheritance, it is reasonable to deem that the said right to claim a public official’s retirement pension, which is the subject of property division, is transferred to a third party or is not inherited to his heir.

[2] In light of the purport of Article 839-2(2) of the Civil Act, it is reasonable to view that the division ratio of property refers to the ratio that can be divided from the other spouse of the whole formed property by taking into account the degree of contribution to the individual property, not the degree of contribution to the individual property, but the degree of contribution and all other circumstances. Therefore, it is not permissible for the court to separately divide the properties to be divided without any reasonable ground and separately determine

However, in cases where a public official’s entitlement to retirement pension is divided into property by way of a regular fund as seen above, unlike other general property that can specify the value as a substitute, the public official’s entitlement to retirement pension has the characteristics such as not being able to identify the names of his/her spouse who is the beneficiary of pension, and thus, the value cannot be specified. In light of the overall circumstances considered in the division of property, there may be cases where determining a single division ratio for the entire property by comprehensively considering the contribution to the public official’s entitlement to retirement pension and the contribution to other general property. In such cases, it is reasonable to separately determine a division ratio from the public official’s entitlement to retirement pension and other general property, and even if the actual division ratio is determined differently, it falls under a case where there is a reasonable ground for determining a division ratio differently. In such a case, the division ratio of the public official retirement pension shall be determined by comprehensively taking into account the ratio of actual marriage period during the

[1] Article 839-2 of the Civil Act / [2] Article 839-2 of the Civil Act

[1] Supreme Court Decision 95Nu7529 delivered on September 29, 1995 (Gong1995Ha, 3636), Supreme Court Decision 96Meu153, 1540 delivered on March 14, 1997 (Gong1997Sang, 1107), Supreme Court Decision 97Meu1486, 1493 delivered on February 13, 1998 (Gong198Sang, 767), Supreme Court Decision 2005Meu1245, 1252 delivered on July 13, 2006 (Amended by Presidential Decree No. 2009Ha, 2009Ha, 140) / [2] Supreme Court Decision 2008Hun-Ga111 delivered on June 9, 200 (Amended by Presidential Decree No. 21407, Apr. 28, 200)

Plaintiff (Attorney Choi Young-chul et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Gwangju, Attorneys Kim Jae-hwan et al., Counsel for the defendant-appellant)

Suwon District Court Decision 201Reu2529 decided June 12, 2012

The part of the judgment below regarding the claim for division of property is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The plaintiff's remaining appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal as to the claim of consolation money

Based on the reasoning of the first instance judgment, the lower court rejected the Plaintiff’s claim for consolation money on the ground that the Plaintiff did not endeavor to resolve conflicts with the Defendant or recover a matrimonial relationship and did not return home several times, thereby deepening conflicts with the Defendant, and the Plaintiff did so to the Defendant, who was in a state of inconvenience in the process of disputing with the Defendant, and the Plaintiff’s error was one of the main causes of failure in a matrimonial relationship, and that the degree of responsibility is at least equal to that of the Defendant.

In light of the records, the above determination by the court below is just and acceptable. Contrary to the Plaintiff’s grounds of appeal, there were no errors by recognizing facts in violation of logical and empirical rules, failing to exhaust all necessary deliberations, or misapprehending the legal principles as to consolation money.

2. As to the Defendant’s grounds of appeal on whether the entitlement to public official retirement pension is subject to division of property

A. The division of property under Article 839-2 of the Civil Act mainly aims at liquidation and distribution of the actual common property acquired during the marriage. Thus, as long as there exists property acquired by the couple through mutual cooperation when a judicial divorce is conducted by the couple, the court must determine the amount and method of division by taking into account all the circumstances of both parties, such as the degree of contribution to the formation of the property upon the party’s request (see Supreme Court Decision 97Meu1486, 1493, Feb. 13, 1998, etc.).

In a case where one of the married couple actually receives a public official retirement pension at the time of the closure of the arguments in a divorce lawsuit, the above public official retirement pension is mixed with the nature of social security benefits, as well as the nature of wage inseparably indivisible (see, e.g., Supreme Court Decision 95Nu7529, Sept. 29, 195). Therefore, insofar as cooperation between the other spouse is recognized with respect to his/her service during the marriage period, at least the part corresponding to the said period among the public official retirement pension entitlement can be deemed as the property

Therefore, if it is not permissible in light of the purpose of the division of property, it is reasonable to view that the entitlement to retirement pension for public officials already generated may be included in the property division like real estate. Specifically, it is possible to divide the property by way of periodic payment to the other spouse of the amount equivalent to a certain ratio out of the monthly retirement pension to be received by the spouse.

Therefore, even if the right to receive a public official’s retirement pension is not itself, it is economically identical to the right to receive a public official’s retirement pension, and the right to receive a public official’s retirement pension, which is the object of division of property, does not constitute the object of inheritance because the right to receive a public official’s retirement pension, which is the object of division of property, does not constitute the social security benefit and does not constitute the object of inheritance. In light of the above, it is reasonable to deem that the said right to claim a public official’s retirement pension as the object of division

Of course, in the case of division of property in the way of installment funds as above, it is difficult to expect inconvenience and difficulty in compulsory execution. However, if a person liable for division fails to pay a fixed amount without any justifiable reason, a family court may issue an implementation order pursuant to Article 64 of the Family Litigation Act. If a person liable for division violates the above implementation order without justifiable grounds, a fine for negligence not exceeding KRW 10,000 may be imposed pursuant to Article 67(1) of the Family Litigation Act. If a person liable for division fails to perform his/her obligation for at least three years even after receiving an order to pay a fixed amount of money, it may indirectly compel the person liable for division by detention until he/she performs his/her obligation for up to 30 days pursuant to Article 6

Nevertheless, solely on the grounds that it is impossible to determine the name of a spouse, who is a beneficiary of pension, the right to receive a public official’s retirement pension is excluded from the subject of division of property and constitutes only the “other circumstances” that are considered in determining the content and method of division of property. If (i) the spouse, who is a public official, received retirement benefits in the form of a lump-sum, not a pension, causes significant unfair outcomes compared with the case of receiving retirement benefits; (ii) there is no clear standard to consider the retirement benefits to any extent; (iii) there is no other reason to take other circumstances into account, depending on how other property is divided or how other property is divided; and (iii) there is no balance between Article 64 of the National Pension Act and Article 64 of the National Pension Act provide that half of the amount of pension corresponding to the period of marriage among the divorced spouse’s old age pension, and thus, it is contrary to the purport of the property division system to fairly

However, in light of the anticipated performance or enforcement difficulties in the division of property in the way of periodic funding as above, in a case where there are special circumstances where it is inappropriate for the divided right holder to make the retirement pension itself subject to the division of property, such as where the divided right holder does not want the public official’s entitlement to receive the division of property, or where the monthly payment is extremely small, the period of marriage is too short, the division of property may be allowed, taking into account the financial resources

On the contrary, the public official retirement pension is paid upon the death of the beneficiary, and the beneficiary’s name cannot be confirmed, and thus, it cannot be the subject of division of property itself. However, Supreme Court Decisions 96Meu1533, 1540 Decided March 14, 1997; 2005Meu1245, 1252 Decided July 13, 2006; and 2008Du1111 Decided June 9, 2009, and all of these trials should be modified to the extent they are inconsistent with this Opinion.

B. The court below acknowledged that the defendant was appointed as a police officer in 1977, and that the plaintiff was in full charge of domestic affairs while married with the defendant in 1993 and married with the defendant in about 15 years, and that the defendant retired from police officers in 2006 and received retirement pension from the police officers in 2006 and received the retirement pension in 2,128,600 won each month, and held that the defendant's entitlement to retirement pension is subject to division of property on the grounds of its stated reasoning. Accordingly, the court below held that the defendant is liable to pay to the plaintiff a certain amount of money from among the public officials' pension amount that the defendant received every month

In light of the above legal principles, the lower court is justifiable to have recognized the Defendant’s entitlement to retirement pension as the subject of division of property. In so doing, it did not err by misapprehending the legal doctrine on the subject of division of property, contrary to

3. As to the grounds of appeal by both parties on the computation of the division ratio of property

We examine these grounds of appeal ex officio.

A. In light of the purport of Article 839-2(2) of the Civil Act, it is reasonable to view that the division ratio of property refers to the ratio that can be divided from the other spouse regarding the entire formed property, not to refer to the degree of contribution to individual property, but to the ratio that can be divided from the other spouse, considering the degree of contribution and all other circumstances. Thus, it is not permissible for the court to separately divide the properties to be divided and separately determine the division ratio without any reasonable ground (see Supreme Court Decision 2001Meu718, Sept. 4, 2002, etc.).

However, in the case of property division with regard to the public official’s entitlement to retirement pension as above, unlike other general property that can specify the value as a substitute, the public official’s entitlement to retirement pension has the characteristics such as not being able to identify the names of the spouse who is the beneficiary of the pension, and thus, it may also be considered in light of the overall circumstances considered in the division of property, where the determination of one division ratio for the entire property is not consistent with equity by comprehensively taking into account the contribution to the public official’s entitlement to retirement pension and the contribution to other general property. In such a case, it is reasonable to separately determine the division ratio from the public official’s entitlement to retirement pension and other general property, and even if the actual division ratio is determined differently, it falls under a case where there is a reasonable ground to determine the division ratio differently. In such a case, the division ratio of the public official retirement pension shall be determined by comprehensively taking into account the ratio of actual marriage period during the entire period of service

B. The court below determined that, without distinguishing the right to receive a public official retirement pension from other general properties, the division ratio of property should be set at 30% and 70%, in full view of all the circumstances revealed in the pleadings, including the following: (a) the process of property formation; (b) the actual marital life of the Plaintiff and the Defendant is at least 15 years; (c) the apartment house in this case was acquired before marriage with the Plaintiff; and (d) the other property was formed as the Defendant’s wage; and (e) the Defendant paid considerable profits through investment; (b) the Defendant did not have any particular property; and (c) there is a need to consider the support factors for the Plaintiff as the main family during most marital life; and (d) the division ratio of property is reasonable; and (e) the general property and the public official retirement pension should be reverted to the current title holder; and (e) the Defendant shall pay the Plaintiff the amount equivalent to 30% of the net property of the Plaintiff and the Defendant’s net property, whichever is the end of each month until the Defendant’s death.

C. However, according to the reasoning of the lower judgment and the record, the Defendant’s service period serving as a public official is 29 years, and the period of marriage between the Plaintiff and the Plaintiff is 13 years, and the period of marriage is 40% of the Defendant’s entire service period. Nevertheless, 30% of retirement pension reverted to the Plaintiff is the same result as bringing about the Plaintiff most of the retirement pension corresponding to the marriage period in view of the fact that the actual marriage period is considered. If circumstances arise, it is sufficient to examine whether it is more reasonable to separately determine the division rate by distinguishing the public official’s entitlement to retirement pension and the general property from the public official’s entitlement to retirement pension and the general property, instead of determining the division rate by distinguishing the public official’s entitlement to retirement pension and the general property. Therefore, the lower court should have reviewed comprehensively all the circumstances indicated in the record, and should have determined the most reasonable and fair division rate accordingly.

Nevertheless, without examining this point, the lower court’s determination that determined a blanket division rate without distinguishing the public official’s retirement pension entitlement from other general property, is erroneous by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the calculation of the division ratio, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the part of the judgment below regarding the claim for division of property is reversed without examining the plaintiff's grounds of appeal and the defendant's remaining grounds of appeal, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent

Justices Yang Chang-soo (Presiding Justice)