분할연금 수급권 요건으로서의 혼인기간 - 헌재 2016. 12. 29. 2015헌바182 결정의 분석을 중심으로 -

Article 64 of National Pension Act stipulates that when a person who has been married for at least five years, he or she may be paid a specified amount of his or her spouse’s old age pension, and the amount of the divided pension shall be the amount obtained by equally dividing the amount of pension corresponding to the period of marriage out of the former spouse’s amount of old age pension. However, the National Pension Service calculated the period of marriage including the period of de facto non-marriage(i.e. separation and abscondence). The Constitutional Court of Korea recently decided that Article 64 (1) of National Pension Act, which entitles the former spouse to the divided pension although he or she did not continue the actual marital life, is incompatible with the Constitution as it infringes the other spouse’s right of property(2015Hun-Ba182, December 29, 2016). The majority opinion of the decision judged that the person who did not continue the actual marital life had not contributed the old age pension of the other spouse. The majority opinion decided that Article 64 (1) is uncompatible with the Constitution because it deviates from legislative discretion as it includes the period of de facto non-marriage in the period of marriage. And furthermore, The majority opinion decided that Article 64 (1) is still unconstitutional notwithstanding Article 64-2 which was newly established to correct the defect of Article 64 (1). But the separate opinion judged that Article 64-2 rectifies the fault of Article 64 (1). The separate opinion concluded that Article 64 (1) is unconstitutional with regard to annuitants who are not applied by Article 64-2 but it is compatible with the Constitution with regard to annuitants who are applied by Article 64-2. This confrontation of opinions is related to the constitutionality of other pension acts(i.e. Public Officials Pension Act, Pension for Private School Teachers and Staff act, and Special Post Offices Act). Because the articles regarding the divided pension of other pension acts have the same structure with the articles of National Pension Act. According to the logic of the majority opinion of 2015Hun-Ba182, the articles regarding the divided pension of other pension acts are unconstitutional. For the sake of the removal of unconstitutionality of Article 64 (1), first, old age pension annuitants must be able to exclude the period of de facto non-marriage in National Pension Act system. Second, the old age pension should be splitted on the basis of the actual marriage period in principal.