[Plaintiff, Appellant] Plaintiff (Attorney Eom Do-hui, Counsel)
[Defendant, Appellee] Government Employees Pension Service
[Lower Court Judgment] Seoul High Court Decision 2017Nu66260 decided November 28, 2017
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Plaintiff.
[Reasoning] The grounds of appeal are examined.
1. The divided pension system, introduced through the partial amendment of the Public Officials Pension Act (공무원연금법) by Act No. 13387 on June 22, 2015, is a system whereby, when a public official or a former public official divorces, part of the retirement pension or early retirement pension is divided and paid to the other spouse who satisfies the statutory requirements. This system was established for the purpose of allowing a spouse who divorced a public official to receive liquidation and distribution recognizing the portion contributed to the formation of the pension with respect to the right to receive a retirement pension or early retirement pension acquired by the public official during the marriage period while in service, while also seeking to guarantee a certain level of income after retirement based on the other spouse's right to receive a retirement pension or early retirement pension (see Constitutional Court en banc Decision 2016Hun-Ma54 decided April 26, 2018).
The property division system upon divorce under the Civil Act (민법) likewise has as its main purpose the liquidation and distribution, at the time of divorce, of property jointly formed by the spouses during the marriage, while also considering supportive elements such as consideration for the parties' post-divorce livelihood security (see Supreme Court en banc Decision 2010Meu4071, 4088 decided June 20, 2013, etc.). Furthermore, even before the divided pension system was introduced into the Public Officials Pension Act, the Supreme Court held, from 2014, that where one spouse was actually receiving a public official's retirement pension at the time the fact-finding proceedings in the divorce lawsuit were concluded, the already-arising right to receive the retirement pension is included in the object of property division, and that even where, at the time of the divorce, one spouse was still in service and had not yet actually received retirement benefits, the retirement benefit claim, being property that already potentially existed and whose economic value could be actually assessed at the time the fact-finding proceedings in the divorce lawsuit were concluded, is also included in the object of property division (see Supreme Court en banc Decision 2012Meu2888 decided July 16, 2014, Supreme Court en banc Decision 2013Meu2250 decided July 16, 2014, etc.).
As set out above, the divided pension system concerning a public official's retirement pension, etc., and the property division system upon divorce under the Civil Act have similar purposes and legislative intent, and the two systems share a common substantive effect in terms of "liquidation and distribution of the portion that contributed to forming the pension during the marriage."
The divided pension system is organically connected with the property division system upon divorce. That is, in order for the right to receive a divided pension to be recognized, the marital relationship with the spouse who is a public official must have continued for a certain period (the Public Officials Pension Act as wholly amended by Act No. 15523 on March 20, 2018 excludes, from the marriage period required for recognition of the right to receive a divided pension, periods during which the substantive marital relationship did not exist due to separation, desertion, etc.). In addition, the Public Officials Pension Act provides that where the division of the pension has been separately determined in the course of divorce and property division, that determination shall govern, thereby directly linking the ratio or amount of the pension division to the agreement between the parties or the court's judgment determined in the property division procedure following the divorce.
Accordingly, the right of a spouse who has divorced a public official to receive a divided pension is a unique right to receive the divided pension directly from the Government Employees Pension Service in accordance with the provisions of the Public Officials Pension Act (see, regarding the National Pension, Supreme Court Decision 2018Du65088 decided June 13, 2019), but in substance it constitutes the liquidation and distribution, in the course of divorce, of jointly held property (retirement pension, etc.) formed through the cooperation of both parties during the marriage, and therefore, in interpreting and applying the provisions on divided pensions, the property-division aspect arising from divorce cannot but be taken into account.
2. Article 46-3(1) of the Public Officials Pension Act (as partially amended by Act No. 13387 on June 22, 2015, hereinafter the "Amended Act"), which took effect on January 1, 2016, provides: "A person who has been married to a spouse who is a public official for five years or more during the spouse's period of service as a public official and who has divorced the spouse (item 1), where the former spouse is a person entitled to receive a retirement pension (item 2), and where the person has reached the age of 65 (provided that, pursuant to Article 2(2)(1) of the Addenda to the Amended Act, the age is 60 from 2016 to 2021) (item 3), may, upon satisfying all of these requirements, receive, from that time and for as long as he or she survives, a divided portion of a certain amount of the former spouse's retirement pension (hereinafter the "divided pension")." Paragraph (2) of the same Article provides: "The amount of the divided pension shall be an amount obtained by equally dividing the portion of the former spouse's retirement pension amount corresponding to the marriage period." Article 46-4 provides: "Notwithstanding Article 46-3, where the division of the pension has been separately determined pursuant to Article 839-2 or Article 843 of the Civil Act, that determination shall govern." Meanwhile, the first sentence of Article 2(1) of the Addenda to the Public Officials Pension Act (hereinafter "the Addenda Provision at Issue") provides: "The divided pension under the amended provisions of Articles 46-3 through 46-5 shall be paid starting from the person for whom the cause of payment first arises after this Act enters into force."
Considering comprehensively the similarity in purpose and legislative intent between the divided pension system under the Public Officials Pension Act and the property division system upon divorce under the Civil Act, and the organic connection between the two systems as examined above, it is reasonable to interpret "the person for whom the cause of payment first arises after this Act enters into force," as provided in the Addenda Provision at Issue, as meaning a person who divorced on or after January 1, 2016, the effective date of the Amended Act. Accordingly, a person who had already divorced before January 1, 2016 cannot be paid a divided pension due to the restriction under the Addenda Provision at Issue, even if that person subsequently satisfies the requirements under item 2 or item 3 of Article 46-3(1) of the Amended Act. Conversely, if a person divorced on or after January 1, 2016, that person falls within the category of a person for whom the cause of payment under the Addenda Provision at Issue arose after the Amended Act took effect, even if that person had already satisfied the other requirements (items 2 or 3) of Article 46-3(1) of the Amended Act prior thereto. However, a person who had already divorced before January 1, 2016 and is thus subject to the restriction under the Addenda Provision at Issue cannot become a person entitled to receive a divided pension under the Amended Act merely because a property division agreement regarding the retirement pension, etc. was made, or a court judgment thereon was rendered, on or after January 1, 2016. This is further supported by the following points.
A. If, despite the fact that the legal relationship between the divorcing parties, including property division, had already been finalized as a result of a divorce that occurred before the Amended Act took effect, the divorced spouse's right to receive a divided pension were nonetheless recognized merely because the divorced public official came to receive a retirement pension, or the divorced spouse turned 60, on or after the effective date of the Amended Act, this would seriously affect legal relationships already formed in the past and create a substantial risk of undermining legal stability. The Addenda Provision at Issue can be seen as a transitional provision established to prevent this problem, limiting the recipients of the divided pension to persons who divorced on or after the effective date of the Amended Act.
B. The Amended Act was again wholly amended by Act No. 15523 on March 20, 2018 and took effect on September 21, 2018, and the first sentence of Article 4(1) of the Addenda to the wholly amended Act, as described above, provides: "The amended provisions of Articles 45 through 48 (Articles 45 through 47 are identical to Articles 46-3 through 46-5 of the Amended Act) shall apply starting from persons who divorced on or after January 1, 2016," thereby making the scope of application of the Addenda Provision at Issue clearer.
C. Article 46-4 of the Amended Act, which concerns cases where the division of the pension has been separately determined as part of property division at the time of divorce, does not itself establish a separate requirement for the right to receive a divided pension; rather, it merely provides a special rule regarding the method of calculating the pension division ratio, etc., premised on the existence of the right to receive a divided pension that arises upon satisfaction of the requirements set forth in Article 46-3(1). Accordingly, a property division agreement or court judgment under Article 46-4 of the Amended Act cannot constitute an independent requirement for the right to receive a divided pension separate from Article 46-3(1), and therefore, insofar as a person is subject to the restriction under the Addenda Provision at Issue by reason of having divorced before January 1, 2016, this conclusion cannot be altered merely because that person subsequently made a property division agreement or received a court judgment regarding the retirement pension, etc.
3. The lower court determined as follows: Since the Plaintiff divorced the non-party, a retired public official, on March 13, 2014, before the Amended Act took effect, even though the Plaintiff reached an agreement on pension division pursuant to Article 46-4 on March 28, 2016, which was after the effective date of the Amended Act, in a lawsuit seeking property division regarding the non-party's retirement pension, the Plaintiff cannot become a recipient of the divided pension under the Amended Act due to the restriction under the Addenda Provision at Issue. Accordingly, the lower court held that the Defendant's disposition of non-payment of the divided pension against the Plaintiff on July 1, 2016 was lawful.
The lower court's determination is based on the legal principles set forth above, and there is no error therein, as alleged in the grounds of appeal, in misunderstanding the legal principles concerning the scope of application of Article 46-4 of the Amended Act and the Addenda Provision at Issue.
4. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This decision is rendered as set forth in the Order with the unanimous consent of the Justices participating in the decision.
Justice Cho Hee-dae (Presiding Justice), Kim Jae-hyung, Min Yu-suk (Justice in Charge), Lee Dong-won