[Plaintiff, Appellee] Plaintiff (Attorney Choi Ji-su, Counsel for the Plaintiff)
[Defendant, Appellant] Government Employees Pension Service (Bae, Kim & Lee LLC, Attorneys Park Jae-woo and 3 others, Counsel for the Defendant)
[Judgment Below] Daejeon High Court Decision 2017Nu11617 decided December 13, 2017
[Order]
The judgment below is reversed, and the case is remanded to the Daejeon High Court.
[Reasoning] The grounds of appeal are examined.
1. Article 46-3(1) of the Public Officials Pension Act (Public Officials Pension Act, 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 public official for at least five years during the public official's period of service and who satisfies all of the following requirements—(i) that the person has divorced the spouse; (ii) that the former spouse is a recipient of a retirement pension; and (iii) that the person has reached the age of 65 (provided that, pursuant to Article 2(2)(i) of the Addenda to the Amended Act, the age shall be 60 from 2016 through 2021)—may, from that time and for the remainder of that person's life, receive a certain amount of pension divided from 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 corresponding to the period of marriage.”
Meanwhile, the first sentence of Article 2(1) of the Addenda to the Amended 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 with the person for whom the cause for payment first arises after this Act enters into force.”
It is reasonable to interpret “the person for whom the cause for 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 (see Supreme Court Decision 2018Du32200 decided October 31, 2019). Accordingly, a person who had already divorced before January 1, 2016 cannot be paid the divided pension due to the restriction under the Addenda provision at issue, even if that person subsequently satisfies the requirements of subparagraph 2 or 3 of Article 46-3(1) of the Amended Act. Conversely, a person who divorced on or after January 1, 2016 falls within the category of a person for whom the “cause for payment” under the Addenda provision at issue arose after the Amended Act took effect, even if that person had already satisfied the other requirements (subparagraph 2 or 3) of Article 46-3(1) of the Amended Act before that date.
2. According to the judgment below, the following facts may be ascertained.
The Plaintiff (date of birth omitted) filed a lawsuit for divorce, etc. against the non-party (Sowaein) with whom the Plaintiff had reported marriage on November 21, 1977, and during the pendency of that divorce lawsuit, on June 16, 2014, a settlement (conciliation) was reached with the following content: “The Plaintiff and the non-party shall divorce, and the non-party shall pay to the Plaintiff, on the 25th day of each month starting from June 25, 2014, an amount calculated at the rate of 50% of the public officials pension (teachers' and staff pension) that the non-party receives.” After reaching the age of 60, on June 28, 2016, the Plaintiff applied to the Defendant for a divided pension under Article 46-3 of the Amended Act. However, on July 4, 2016, the Defendant rejected the Plaintiff's application on the ground that “the Plaintiff, who divorced the non-party on June 16, 2014, before the Amended Act took effect, does not fall within the scope of persons eligible for payment of the divided pension under the Addenda provision at issue.”
3. In light of the legal principles set forth above, applied to the facts found by the court below, the Plaintiff, who divorced the non-party on June 16, 2014, before the effective date of the Amended Act, cannot be deemed to fall within the scope of persons eligible for payment of the divided pension under the Addenda provision at issue, even though the Plaintiff reached the age eligible for the divided pension under Article 46-3(1)(iii) of the Amended Act (age 60, in this case) after the effective date of the Amended Act. Nevertheless, the court below, mistakenly believing that the Addenda provision at issue applies even to a person who divorced before the effective date of the Amended Act, provided that such person reached age 60 after the effective date and thereby satisfied the requirement of Article 46-3(1)(iii) of the Amended Act only at that later point, determined that the Plaintiff could be paid the divided pension under Article 46-3 of the Amended Act. Such determination by the court below contains an error that misapprehends the legal principles concerning the scope of application of Article 46-3 of the Amended Act and the Addenda provision at issue, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out has merit.
Meanwhile, it is noted that, since the Plaintiff agreed, through the June 16, 2014 settlement, to receive 50% of the non-party's public officials pension from the non-party by way of periodic payments as described above, if the non-party fails, without justifiable reason, to perform the obligation under that settlement, the Plaintiff may compel performance by, among other means, applying to the family court for a performance order under Article 64 of the Family Litigation Act (Family Litigation Act) (see Supreme Court en banc Decision 2012Meu2888 decided July 16, 2014).
4. Therefore, without examining the remaining grounds of appeal, the judgment below is reversed and the case is remanded to the court below for further hearing and determination. This Decision is rendered with the unanimous consent of the Justices participating in the ruling, as set forth in the Order.
Justice Kim Seon-su (Presiding Justice), Kwon Sun-il, Lee Ki-taek (Justice in charge), Park Jeong-hwa