공무원연금법상 유족보상금의 성격

Abstract

This article attempts to analyze the legal character of the Bereaved Family’s Compensation (the BFC) in the Public Officials Pension Act (the POPA) in Korea through scrutinizing the relevant statutory amendments and the change of judicial precedents in aiming toward ensuring the right to social security benefits of the bereaved family from the social security legal structural perspective. The significance of clarifying the legal character of the BFC in the POPA in Korea is mainly due to the question on the possible conflict between the right of claim for damages under the State Compensation Act and the right of claim for compensations under the POPA of the bereaved family in the case of tort that a public official’s death is caused by organs of the nation or private individuals. In this respect, the POPA takes the policy of adjusting the benefits under other Acts in deducting “the same kind” of benefits, cf. Article 33 (1) in the POPA. Hence, if the legal character of the BFC would be considered as the right to social security benefit which is different from the right to claim for damages, the total amount of the bereaved family’s benefit would be maximized without deduction. However, in 1998, the Supreme Court overruled its previous decision in this regard in 1970 which had held that the legal character of the BFC had been a right to social security benefit and thus had not been able to be deducted from the amount of State compensation, by clearly concluding that the legal character of the BFC was the right to claim for damages, not the right to social security benefit, hence it had to be deducted from the amount of the * Professor, College of Law, Seoul National University 2008. 6.] 공무원연금법상 유족보상금의 성격 19 State compensation as “the same kind” of benefits to the bereaved family. The current position of the Supreme Court appears however strongly questionable since the right to the BFC should be considered as a right to the “long term” and “social security” benefits resulted from the public official’s “death in the line of duty” due to the following reasons: firstly, the BFC’s statutory purpose and objective are not indemnifying for the loss, but ensuring the aid to a bereaved family in social security level; secondly, the entitlement of the benefit to the BFC might have the character of social security benefits in case of the death at the post of duty since the compensation is provided irrespective of the period of service in a position; thirdly, the level of compensation is fixed as thirty-six times as a month’s remuneration of the martyr to duty without variation in the Act, and the feature is unlikely to be found in the assessment on compensation for a loss; finally, legal structure of the BFC is in the same category as that of the retirement benefit which has been considered as one of the social security benefits by the Constitutional Court. In conclusion, from a social security perspective, the bereaved family’s benefits in the POPA, including the BFC, which share the same objective of securing the bereaved family resulted from a public official’s death in the line of duty, should be comprehended as a whole for more substantial social security by understanding that the BFC as well as the bereaved family’s pension has the same legal character as the right to social security benefits, not the right to claim for damages.