[Plaintiff, Appellee] Plaintiff
[Defendant, Appellant] Government Employees Pension Service
[Judgment Below] Seoul High Court Judgment 2018Nu63909, decided June 5, 2019
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Defendant.
[Reasoning] The grounds of appeal are examined.
1. Outline of the Case and Issue
A. According to the reasoning of the judgment below, the following facts may be established.
1) The non-party worked as a police official from September 20, 1968 to June 30, 2001, and then retired.
2) The Plaintiff married the non-party on May 26, 1975 and divorced him on May 17, 1994 (hereinafter "the first period of marriage"), and married him again on July 8, 1998 and divorced him on June 15, 2017 (hereinafter "the second period of marriage").
3) On June 27, 2017, the Plaintiff requested the Defendant to pay a divided pension pursuant to Article 46-3 of the former Public Officials Pension Act (Gongmuwon Yeongeumbeop) (amended in part by Act No. 13387 on June 22, 2015, before its wholesale amendment by Act No. 15523 on March 20, 2018; hereinafter "the former Public Officials Pension Act") out of the public official pension received by the non-party. However, on July 18, 2017, the Defendant issued the disposition refusing this request (hereinafter "the instant refusal disposition") on the grounds that (i) since the first period of marriage involved a divorce that occurred before the divided pension system took effect, it could not be included in calculating whether the requirement for payment of a divided pension—namely, "a marriage period of five years or more during the spouse's period of service as a public official"—was met, and (ii) the second period of marriage alone did not amount to five years or more of marriage during the spouse's period of service as a public official, such that the Plaintiff did not satisfy the requirement for payment of a divided pension.
B. The issue in this case is whether, where a person seeking a divided pension and his or her former spouse, who was a public official, married and divorced each other two or more times and finally divorced after the divided pension system took effect, the period of marriage prior to the enactment of the divided pension system must be included when determining whether the requirement for payment of a divided pension under the main text of Article 46-3(1) of the former Public Officials Pension Act—namely, "a marriage period of five years or more during the spouse's period of service as a public official"—has been satisfied.
2. The Proper Interpretation of "a Marriage Period of Five Years or More"
A. Article 46-3(1) of the former Public Officials Pension Act provides: "A person whose marriage period (limited to the period of marriage during which the spouse served as a public official) is five years or more may, upon satisfying all of the following requirements, receive, for as long as he or she survives, a certain amount of pension obtained by dividing the retirement pension or early retirement pension of the person who was his or her spouse," and sets forth in subparagraph 1 "having divorced the spouse," in subparagraph 2 "the former spouse being a person entitled to a retirement pension or early retirement pension," and in subparagraph 3 "having reached the age of 65." Paragraph 2 of the same Article provides: "The amount of the divided pension under paragraph 1 shall be the amount obtained by equally dividing the portion of the former spouse's retirement pension or early retirement pension corresponding to the period of marriage." Accordingly, in order for a divorced spouse's right to receive a divided pension to be recognized under the former Public Officials Pension Act, it is required that "the period of marriage during the spouse's period of service as a public official be five years or more."
B. Considering comprehensively the content and legislative purpose of the provisions regarding the divided pension entitlement under the former Public Officials Pension Act, the legal nature of a divorced spouse's right to a divided pension, and its relationship with the property division system upon divorce under the Civil Act (Minbeop), where a person seeking a divided pension and his or her former spouse, who was a public official, married and divorced each other two or more times and finally divorced after the divided pension system took effect, then, absent special circumstances showing that, upon the divorce that occurred before the divided pension system took effect, a division of property was carried out that substantively took into account the contribution to the formation of the retirement pension, etc. up to that point, the period of marriage prior to the enactment of the divided pension system must be added to the period of marriage after the enactment of the divided pension system when determining the "period of marriage" required for payment of a divided pension under the main text of Article 46-3(1) of the former Public Officials Pension Act. The specific reasons are as follows.
1) The divided pension system, introduced when the Public Officials Pension Act was partially amended by Act No. 13387 on June 22, 2015, was established for the purpose of allowing a spouse divorced from a public official to receive liquidation and distribution recognizing the portion contributed to the formation of the retirement pension or early retirement pension acquired during the marriage period while the public official was in service, while also seeking to guarantee a certain level of income in old age based on the other party's right to a retirement pension or early retirement pension (see, e.g., Constitutional Court en banc Decision 2016Hun-Ma54, decided April 26, 2018). Meanwhile, while providing for the eligibility requirements for a divided pension, the former Public Officials Pension Act, in the first sentence of Article 2(1) of its Addenda, provides that "a divided pension under the amended provisions shall be paid to a person for whom the cause for payment first arises after this Act enters into force," while Article 46-3(1) of the former Public Officials Pension Act merely provides that "a person whose marriage period during which the spouse served as a public official is five years or more" may receive a divided pension upon divorcing the spouse and satisfying requirements such as reaching the age of 65, without placing any restriction on whether periods of marriage prior to the enactment of the divided pension system are to be aggregated where a person seeking a divided pension and his or her former spouse, who was a public official, married and divorced each other two or more times. In light of the content and legislative purpose of the relevant provisions as described above, it is reasonable to hold that, for a claimant for a divided pension who satisfies the other requirements set forth in Article 46-3(1) of the former Public Officials Pension Act and the Addenda provisions, the period of marriage prior to the enactment of the divided pension system must be aggregated in determining whether "the period of marriage during the spouse's period of service as a public official is five years or more."
2) The divided pension system has both a property-right character and a social security character; the property-right character of the divided pension system rests on the idea that the right to receive a pension is also common marital property jointly formed through cooperation during the marriage, such that, after divorce, the portion corresponding to one's contribution must be divided. The Supreme Court has held that where the same persons have repeatedly married and divorced each other multiple times, then, in dividing property upon the final divorce, absent special circumstances showing that a substantive division of property was carried out or that the right to claim division of property was completely waived upon a prior divorce, all property formed through the cooperation of both parties during each period of marriage is included in the property subject to division (see Supreme Court Decision 99Meu1855, decided August 18, 2000). This same purport must be taken into account in interpreting and applying the requirement of "a marriage period of five years or more" among the requirements for entitlement to a divided pension.
3) The system of property division upon divorce under the Civil Act was introduced when the Civil Act was amended by Act No. 4199 on January 13, 1990. In the past, the Supreme Court took the position that "a retirement pension that the other party will receive in the future cannot immediately be included in the property subject to division, and the circumstance that there is a probability of receiving a future retirement allowance is sufficient to be taken into account as another circumstance necessary in determining the amount and method of division under Article 839-2(2) of the Civil Act," thereby declining to recognize the pension entitlement itself as subject to property division (see Supreme Court Decision 96Meu1533, 1540, decided March 14, 1997, among others). Thereafter, the Supreme Court, in its en banc Decision 2012Meu2888, decided July 16, 2014, and other decisions, held for the first time that "a public official's retirement pension entitlement that has already arisen is included in the property subject to division, and even where one spouse is still in service at the time of divorce and has not actually received retirement benefits, the claim corresponding to the amount of the retirement benefit, which potentially exists at the time of closing argument in the fact-finding proceedings of the divorce suit and is capable of realistic economic valuation, is also property subject to division." Accordingly, where a person seeking a divided pension and his or her former spouse, who was a public official, married and divorced each other two or more times, it is possible that, at the time of a prior divorce that occurred before the divided pension system took effect, depending on the timing and the existence and extent of property subject to division at the time of that divorce, no division of property was carried out at all, or a division of property was carried out without substantively taking into account the divorced spouse's contribution to the public official spouse's retirement pension, etc. In such a case, there is a great need, by aggregating the period of marriage prior to the enactment of the divided pension system with the period of marriage after its enactment, to allow the divorced spouse to receive liquidation and distribution of the contributed portion of the retirement pension, etc., and thereby to secure a certain level of income in old age on that basis.
4) The Supreme Court Decision 2010Du27264, decided May 13, 2011, cited by the Defendant, concerns the interpretation of Article 3(1)4(a) of the former Military Pension Act (Gungin Yeongeumbeop) (before its amendment by Act No. 12788 on October 15, 2014) regarding the scope of "spouse" among "bereaved family members" entitled to a survivor's pension, and, as the facts of that case differ from those of the present case, it is not appropriate to invoke it in this case.
3. Determination as to the Instant Case
The Plaintiff and the non-party divorced for the first time on May 17, 1994, and there is no assertion or proof whatsoever of circumstances showing that, at that time, a division of property was carried out that substantively took into account the Plaintiff's contribution to the formation of the non-party's retirement pension, etc. up to that point. Accordingly, in determining whether the Plaintiff satisfies the requirement for recognition of entitlement to a divided pension—namely, "the period of marriage during the spouse's period of service as a public official is five years or more"—the first period of marriage and the second period of marriage must be aggregated.
In the same vein, the court below determined that the instant refusal disposition, which the Defendant issued on the ground that, excluding the Plaintiff's first period of marriage and considering only the second period of marriage, the requirement of "the period of marriage during the spouse's period of service as a public official is five years or more" was not satisfied, was unlawful. This determination by the court below is based on the legal principles set forth above, and contains no error, as alleged in the grounds of appeal, of misapprehending the legal principles regarding "period of marriage," which is a requirement for recognition of entitlement to a divided pension under the former Public Officials Pension Act.
4. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order, with the unanimous consent of the Justices participating in the decision.
Justice Park Sang-ok (Presiding Justice), An Cheol-sang, Noh Jeong-hee (Justice in Charge), Kim Sang-hwan