연금분할청구권과 국민연금법의 개정방향 -헌법재판소 2016.12.29. 선고 2015헌바182 결정을 중심으로-

Abstract

The Constitutional Court has declared the Article 64 of the National Pension Act unconstitutional on 29 December 2016 on the ground that it infringes the property rights of the divorced spouses by allowance for the split of pension even when there has been no actual marital relationship. The main purpose of this article is to demonstrate the defects of its ratio decidendi; to propose the right direction of the revision of the National Pension Act; and to design a basic policy for the integration of all relevant legislation on pension split. Legislators should remember that the pension split claim has not only a public character for social security, but also a private one as an extension of the judicial claim of property division, so that it cannot be decided separately from a property division claim. The statutory pension split system like the current National Pension Act should be abolished under the integrated law system, and completely replaced with the flexible pension split by the agreement of the parties or by the judgement of the court, determining the scope of the divorced couple's right as soon as possible, ensuring a variety of options according to the situation and demand of the parties, and providing ways of enforcement for prevention of old age poverty.