[1] Where a spouse is in office as a public official at the time of divorce, whether the other spouse’s cooperation with respect to retirement benefits and retirement allowances may be included in the subject of division of property (affirmative) and the scope of the subject claim

[2] Whether the court may determine whether the expected retirement benefits claim may be included in the property division subject to the provisions on the claim for division of a divorce spouse under the Public Officials Pension Act in the case of a claim for property division (affirmative), and the standard for determination thereof

[3] In the case of a claim for division of a divorced spouse under the Public Officials Pension Act, whether the provision on the claim for division of a divorce spouse under Article 28 subparag. 4 and Article 62 of the Public Officials Pension Act, where the provision on the claim for retirement allowance under Article 28 subparag. 4, and Article 62 of the same Act,

[1] Even if one spouse is still in office at the time of divorce, and the actual retirement benefits, etc. are not received, the retirement benefits and retirement allowances, which are property having real economic value, may be included in the subject of division of property, so long as the other spouse’s cooperation is recognized as having contributed to the other spouse’s cooperation. Specifically, the amount equivalent to the retirement benefits and retirement allowances, which are expected to be received at the time of retirement as at the time of the conclusion of fact-finding proceedings in a divorce lawsuit, shall be the subject of such claim.

[2] According to Article 45(1) and (2) of the Public Officials Pension Act, where a person who has been a spouse for at least five years is divorced from his/her spouse (excluding the period during which no substantial marital relationship exists during the period of service as a public official of his/her spouse), a person who has been a spouse is a beneficiary of a retirement pension or early retirement pension, and where he/she becomes 65 years of age, he/she may receive a divided pension by equally dividing the pension amount corresponding to the above period of marriage among the amount of retirement pension or early retirement pension of his/her spouse after filing a separate claim with the Public Officials Pension Service during his/her lifetime (where a person who was a spouse only files a claim for a lump-sum retirement pension, etc. instead of a retirement pension, he/she may claim a division of the lump-sum retirement pension, etc. pursuant to Article 49 of the Public Officials Pension Act). Furthermore, Article 46 of the Public Officials Pension Act provides that “Where a separate decision has been made pursuant to

Therefore, when a divorce party claims division of property, the court may determine whether a claim for retirement benefits (referring to retirement pension and lump sum retirement pension under Article 28 subparag. 1 of the Public Officials Pension Act) expected to be received when retired at that time as of the time of closing argument at the fact-finding court in a divorce lawsuit, based on comprehensive consideration of the following: (a) the process and period of marital life; (b) the degree of contribution of both parties to the formation and maintenance of the relevant retirement benefits; (c) the existence and scale of other positive and negative property acquired by both parties in cooperation during marriage; and (d) the intentions and ages of both parties, etc. In other words, the court may determine the amount and method of division, including the expected retirement benefit claim for division of property in consideration of the aforementioned circumstances in a case involving a claim for division of property; and (d) the divorce party may be obliged to comply with the provisions concerning the claim for division, such as divided pension under the Public Officials Pension Act and the lump sum retirement pension.

[3] As to retirement allowances (referring to allowances paid when a public official serves for at least one year or dies) stipulated under Articles 28 subparag. 4 and 62 of the Public Officials Pension Act, the provisions on the claim for division by divorce spouse are not applicable. Thus, if it is recognized that cooperation by a divorce spouse has contributed to the cooperation of the divorce spouse, the claim equivalent to retirement allowances expected to be received at that time may be the subject of a sufficiently division of property. Specifically, the claim equivalent to retirement allowances, which is expected to be received when a divorce spouse retires at that time based on the time of closing argument in the fact-finding lawsuit, may be included in the active property of the divorce party holding the above claim

[1] Article 839-2 of the Civil Act; Article 28 subparag. 1 and 4 of the Public Officials Pension Act / [2] Article 839-2 of the Civil Act; Article 28 subparag. 1, 45(1) and (2), 46, and 49 of the Public Officials Pension Act / [3] Article 839-2 of the Civil Act; Article 28 subparag. 4, and Article 62 of the Public Officials Pension Act

[1] Supreme Court en banc Decision 2013Meu2250 Decided July 16, 2014 (Gong2014Ha, 1589)

Plaintiff (Attorney Kim Young-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Beneficiary, Attorneys Noh Ho-ho et al., Counsel for the defendant-appellant)

Principal 1 et al.

Seoul High Court Decision 2016Reu23199 decided June 13, 2017

The part of the lower judgment’s claim for division of property is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Determination on the grounds of appeal on the part of claim for division of property

A. The record of this case reveals the following facts: (a) the Plaintiff and the Defendant completed a marriage report on May 15, 1997; (b) the Plaintiff served as a teacher of national or public high school from September 1, 197 to September 1, 1995; (c) the estimated lump-sum retirement pension as of June 1, 2016 was 110,207,510; and (d) the estimated lump-sum retirement pension as of June 3, 2016 was 39,874,070; (c) the payment period as of May 2016 as the national pension subscriber of 1967 was about 257; (d) the total amount of the paid premiums was 56,038,940; and (e) the Plaintiff asserted that the Defendant included both the expected lump-sum retirement pension and anticipated retirement allowances in the division subject to property division; and (e) the Plaintiff should be excluded from the property division subject to the said lump-sum retirement pension.

B. As to the above, the lower court determined that, as in the revised Public Officials Pension Act, a spouse who was divorced pursuant to the revised Public Officials Pension Act, effective January 1, 2016, also satisfies certain requirements under the Public Officials Pension Act, the pension benefits may be paid in installments. However, aside from claiming the Defendant with regard to the part of the Plaintiff’s expected retirement benefits having the pension character, insofar as the Defendant did not reflect the Defendant’s national pension in the Defendant’s active property, it is reasonable to exclude the Plaintiff’s anticipated retirement benefits for public officials from the Plaintiff’s active property. Unlike the first instance court, the lower court excluded both the Plaintiff’s expected retirement benefits and anticipated retirement allowances from the property division subject to the Plaintiff’

C. However, among the judgment of the court below, the part concerning the lump-sum retirement pension for expected retirement is acceptable, but the part concerning the retirement allowance for expected retirement is not acceptable. The reasons are as follows.

1) Even if one spouse is still a public official at the time of divorce, and the actual retirement benefits, etc. are not received, the retirement benefits and retirement allowances, which are property having real economic value, may be included in the subject of division of property, insofar as the other spouse’s cooperation is recognized as having been contributed to the other spouse’s cooperation. Specifically, the amount equivalent to the retirement benefits and retirement allowances, which are expected to be received in the event of retirement at that time, based on the time of the closure of arguments at the fact-finding court in a divorce lawsuit, shall be subject to the said claim (see, e.g., Supreme Court en banc Decision 2013Meu250, Jul. 16,

2) Meanwhile, according to Article 45(1) and (2) of the Public Officials Pension Act, a person whose marriage period (excluding the period excluding the period during which there was no substantial marital relationship among the public officials of his/her spouse’s tenure of office) is divorced from his/her spouse, a person who was his/her spouse is a retirement pension or early retirement pension beneficiary, and when he/she becomes 65 years of age, he/she may receive a divided pension by equally dividing the pension amount corresponding to the above marriage period among the amount of retirement pension or early retirement pension of his/her former spouse by filing a separate claim with the Public Officials Pension Service during his/her lifetime (where a person who was only his/her spouse files a claim for a lump-sum retirement pension, etc. on behalf of the former spouse, a request for division of the lump-sum retirement pension, etc. may be made pursuant to Article 49 of the Public Officials Pension Act). Furthermore, Article 46 of the Public Officials Pension Act provides that “Where the division of pension is separately determined pursuant to

3) Therefore, the court may determine whether a divorce party’s claim for division of property is included in the property division subject to retirement benefits (referring to retirement pension, retirement pension, lump sum retirement pension, etc. under Article 28 subparag. 1 of the Public Officials Pension Act) expected to be received when retired at that time based on the time of closing argument at the fact-finding court in a divorce lawsuit, based on the following circumstances: (a) the process and period of marital life; (b) the degree of contribution of both parties to the formation and maintenance of retirement benefits; (c) the existence and scale of other active and negative property acquired by both parties in their marital life; and (d) the intentions and ages of both parties. In other words, in the case of property division claim, the court may determine the amount and method of property division, including the expected retirement benefit claim; and (d) the divorce party may be obliged to comply with the provisions concerning the divided pension claim, such as the divided pension claim, lump sum retirement pension, etc. under the Public Officials Pension Act, without being included in the subject

4) However, with respect to retirement allowances (referring to allowances paid when a public official serves for at least one year or dies) stipulated in Articles 28 subparag. 4 and 62 of the Public Officials Pension Act, the provisions on the claim for division of a divorce spouse do not apply. Thus, if it is recognized that the cooperation of a divorce spouse has contributed to the cooperation of the divorce spouse, the claims equivalent to retirement allowances, which are expected to be received at that time, may be sufficiently subject to division of property, based on the time when the arguments are closed at the fact-finding court in a divorce lawsuit. Specifically, the claims may be included in the active property of the divorce party holding the above claims, and may be liquidated together with other property or disposed

5) Therefore, the lower court’s determination is acceptable, on the grounds indicated in its reasoning, that the Plaintiff’s claim for lump-sum retirement pension and the claim for lump-sum division under the Public Officials Pension Act excludes the Plaintiff’s claim for division of property. However, in light of the fact that the Plaintiff’s claim for division of the Plaintiff’s expected retirement allowance that is not governed by the Public Officials Pension Act may fully include all or part of the Plaintiff’s claim for division of property, barring special circumstances, in view of the fact that the period of marriage is considerable, during the Plaintiff’s period of service, while the Plaintiff’s claim for division of the Plaintiff’s anticipated retirement allowance and the claim for retirement allowance on the same ground as the expected lump

2. Judgment on the ground of appeal on the claim for child support

For reasons indicated in its holding, the lower court maintained the conclusion of the first instance judgment, which held that the Defendant is liable to pay the Plaintiff KRW 2 million per month from January 2016 to the day immediately preceding the day when the principal of the case becomes adult (the date 1 omitted) as child support for the principal of the case, and KRW 1 million per month to the day immediately preceding the day when the principal of the case becomes adult (the date 2 omitted).

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3. Conclusion

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

Justices Lee Ki-taik (Presiding Justice)