2021.03.25

2020 (Ju) 753

Minshu Vol. 75, No. 3

Judgment concerning the case where a spouse under the Civil Code does not fall under a spouse referred to in Article 14, paragraph (1), item (i) of the Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act

Case seeking retirement allowance, etc.

Judgment of the First Petty Bench, dismissed

Tokyo High Court, Judgment of December 24, 2019

A spouse under the Civil Code does not fall under a spouse referred to in Article 14, paragraph (1), item (i) of the Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act in the case where his/her marital relationship has lost substance and has become a mere facade and such circumstance has been fixed and is not expected to be resolved in the near future, that is, in the case where he/she is for all practical purposes divorced.

Article 10, paragraph (1) and Article 14 paragraphs (1) and (2) of the Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act


Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act

(Retirement Allowance)
Article 10 When a person covered by mutual aid retires, the Organization pays a retirement allowance to that person (if a person retires due to death, a surviving family member of the person); provided, however, that this does not apply in the case where the number of months for which premium pertaining to the person covered by mutual aid has been paid (hereinafter referred to as the "number of months for which premium has been paid") is less than twelve months.

(Scope and Order of Surviving Family Members)
Article 14 (1) Surviving family members who are qualified to receive payment of a retirement allowance pursuant to the provisions of Article 10, paragraph (1) are those set forth in the following items:
(i) the spouse of a person covered by mutual aid (including a person who has not submitted a notification but has for all practical purposes been in circumstances similar to a marital relationship with the person covered by mutual aid at the time of the death of the person covered by mutual aid);
(ii) the children, parents, grandchildren, grandparents, brothers, and sisters of a person covered by mutual aid who have maintained their livelihood mainly by the income of the person covered by mutual aid at the time of the death of the person covered by mutual aid;
(iii) in addition to those set forth in the preceding item, the relatives of a person covered by mutual aid who have maintained their livelihood mainly by the income of the person covered by mutual aid at the time of the death of the person covered by mutual aid; and
(iv) the children, parents, grandchildren, grandparents, brothers, and sisters of a person covered by mutual aid who do not fall under item (ii).
(2) The order of surviving family members qualified to receive a retirement allowance is based on the order of being referred to in the items of the preceding paragraph. Out of those set forth in items (ii) and (iv) of the same paragraph, it is based on the order set forth in the same item. In this case, regarding parents, adoptive parents and natural parents are qualified to receive a retirement allowance in this order. Regarding grandparents, adoptive parents of adoptive parents, natural parents of adoptive parents, adoptive parents of natural parents, and natural parents of natural parents are qualified to receive a retirement allowance in this order.

The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellants of final appeal.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal in 2020 (Ju) 753, IGUCHI Kanji and NOMURA Sachiyo (except for the reasons excluded) and the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal in 2020 (Ju) 754, ASAOKA Teruhiko and YAMAZAKI Jun

1. P, who is the mother of the appellee, died in 2014. At that time, P was the employee of Stock Company Q, and said company had concluded a retirement allowance mutual aid contract prescribed in the Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act that designates P as the person covered by mutual aid with the Appellant Organization. In addition, at the time of P's death, she was a subscriber of Appellant JPP Fund, which is a corporate pension fund prescribed in the Defined-Benefit Corporate Pension Act, and a member of a Publishers' Employees' Pension Fund, which is an employees' pension fund prescribed in the Employees' Pension Insurance Act (prior to amendment by Act No. 63 of 2013; hereinafter referred to as the "Employees' Pension Insurance Act prior to the 2013 amendment").

In this case, regarding P's death, the appellee demands that the Appellant Organization, Appellant JPP Fund, and Appellant Publishers' Fund, which succeeded to the rights and obligations of the Publishers' Employees' Pension Fund, make payment of a retirement allowance based on the aforementioned mutual aid contract, payment of a survivor benefit based on the rules of Appellant JPP Fund (hereinafter referred to as the "JPP Fund Rules"), and a survivor lump sum payment based on the rules of the Publishers' Employees' Pension Fund (hereinafter referred to as the "Publishers' Fund Rules"), respectively (hereinafter the aforementioned retirement allowance, survivor benefit, and survivor lump sum payment are collectively referred to as the "Retirement Allowance, etc."). According to the Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act, the JPP Fund Rules and the Publishers' Fund Rules, the top-priority beneficiary of the Retirement Allowance, etc. is specified as the "spouse." The appellee argues as follows: R, who is P's spouse under the Civil Code, does not fall under a spouse qualified to receive the payment of the Retirement Allowance, etc. as P and R were for all practical purposes divorced; therefore, the appellee holds the right to receive benefits as the second-priority beneficiary.

2. The outline of the facts lawfully determined by the court of prior instance is as follows.

(1) Concerning a retirement allowance under a retirement allowance mutual aid contract prescribed in the Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act

Article 10, paragraph (1) of the Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act provides that when a person covered by mutual aid retires, the Appellant Organization pays a retirement allowance to that person (if a person retires due to death, a surviving family member of the person). Article 14, paragraph (1) of the same Act provides that the aforementioned surviving family member is any of the persons set forth in the items of the same paragraph. Item (i) of the same paragraph sets forth the "spouse of a person covered by mutual aid (including a person who has not submitted a notification but has for all practical purposes been in the circumstances similar to the marital relationship with the person covered by mutual aid at the time of the death of the person covered by mutual aid), item (ii) sets forth the "children, parents, grandchildren, grandparents, brothers, and sisters of a person covered by mutual aid who have maintained their livelihood mainly by the income of the person covered by mutual aid at the time of the death of the person covered by mutual aid, item (iii) sets forth the "relatives of a person covered by mutual aid who have maintained their livelihood mainly by the income of the person covered by mutual aid at the time of the death of the person covered by mutual aid, in addition to those set forth in the preceding item," and item (iv) sets forth the "children, parents, grandchildren, grandparents, brothers, and sisters of a person covered by mutual aid who do not fall under item (ii)," respectively. Paragraph (2) of the same Article provides that the order of surviving family members qualified to receive the aforementioned retirement allowance is based on the order of being referred to in the items of paragraph (1) of the same Article.

(2) Concerning a survivor benefit based on the JPP Fund Rules

A. Article 47 of the Defined-Benefit Corporate Pension Act provides that in the case where the rules on defined-benefit corporate pension provide for the payment of a survivor benefit, which is one type of benefit under a defined-benefit corporate pension, and a benefit recipient, such as a subscriber, dies, the survivor benefit is to be paid to a surviving family member of the benefit recipient. Article 48 of the same Act provides that the aforementioned surviving family member is any of the persons set forth in the items of the same Article who are specified in the rules and that the order of persons qualified to receive a survivor benefit is as specified by the rules. Items (i), (ii), and (iii) of the same Article set forth the "spouse of a benefit recipient (including a person who has not submitted a notification but has been for all practical purposes in circumstances similar to the marital relationship with the benefit recipient at the time of the death of the benefit recipient)," the "children (…), parents, grandchildren, grandparents, brothers, and sisters of a benefit recipient," and the "other relatives of a benefit recipient who have maintained their livelihood mainly by the income of the benefit recipient at the time of the death of the benefit recipient, in addition to those set forth in the preceding two items," respectively.

B. In response to the provisions mentioned in A. above, Article 65, item (i) of the JPP Fund Rules provide that when a subscriber of Appellant JPP Fund dies, a survivor benefit is to be paid to a surviving family member of the subscriber as a lump sum payment. Regarding surviving family members, Article 66 of the same Rules sets forth the same persons as those set forth in the items of Article 48 of the Defined-Benefit Corporate Pension Act, and provides that the order of persons qualified to receive a survivor benefit is based on the order of being referred to in the items of the same Article.

(3) Concerning a survivor lump sum payment based on the Publishers' Fund Rules

A. Article 130, paragraph (3) of the Employees' Pension Insurance Act prior to the 2013 amendment and Article 26, paragraph (1) of the Cabinet Order for Employees' Pension Fund (prior to repeal by Cabinet Order No. 73 of 2014; the same applies hereinafter) delegated as referred to in Article 130, paragraph (3) of the same Act provide that regarding the death of a benefit recipient, such as a subscriber, an employees' pension fund may pay to a surviving family member of the benefit recipient a benefit as a lump sum payment. Paragraph (2) of the same Article provides that the aforementioned surviving family member is any of the persons set forth in the items of the same paragraph who are specified by the rules. Items (i), (ii), and (iii) of the same paragraph set forth the "spouse of a benefit recipient (including a person who has not submitted a notification but has been for all practical purposes in circumstances similar to the marital relationship with the benefit recipient at the time of the death of the benefit recipient)," the "children (…), parents, grandchildren, grandparents, brothers, and sisters of a benefit recipient," and "other relatives of a benefit recipient who have shared livelihood with the benefit recipient at the time of the death of the benefit recipient, in addition to those set forth in the preceding two items," respectively. Paragraph (3) of the same Article provides that the order of surviving family members qualified to receive the aforementioned benefit is as specified by the rules.

B. In response to the provisions mentioned in A. above, Article 60, item (i) of the Publishers' Fund Rules provides that in the case of a death of a member of the Publishers' Fund eligible for additional payment for whom the period as an eligible member is three years or longer, a survivor lump sum payment is to be paid to a surviving family member of that member. Regarding surviving family members, Article 62 of the same Rules sets forth the same persons as those set forth in the items of Article 26, paragraph (2) of the Cabinet Order for Employees' Pension Fund and provides that the order of persons qualified to receive a survivor lump sum payment is based on the order of being referred to in the items of the same paragraph.

C. At the time of P's death, she was a member of Publishers' Employees' Pension Fund eligible for additional payment for whom the period as an eligible member is three years or longer.

In addition, the Publishers' Employees' Pension Fund ceased to exist after P's death, and Appellant Publishers' Fund succeeded to the rights and obligations of the Publishers' Employees' Pension Fund.

(4) Concerning P's marital relationship

A. P got married to R on June 1, 1988, and gave birth to the appellee on XX XX, 1989. P and R have no other child.

B. Around 1992, R separated from P and the appellee and started living with another woman. After that, he had never lived with P and the appellee. After the separation, R met P only a few times and hardly shared living expenses.

C. Around 2009, P received a document requesting divorce by agreement from C. However, due to fear of posing an obstacle to the employment of the appellee, who was a university student at that time, P had not taken divorce procedures though she had the intention to get a divorce. After that, P became unable to prepare a notification of divorce due to the progression of a disease with which P had already been afflicted in XX 2014, the year when the appellee graduated from university. P died on XX XX, 2014 without divorcing R. R did not attend P's funeral though he was informed of P's death.

D. On XX XX, 2014, the day before the date of P's death. P made a will to the effect that R, who is a presumptive heir, would be disinherited and the whole estate would be inherited by the appellee, in the form of an emergency will. On October 5, 2016, the Tokyo Family Court rendered a ruling of disinheritance of a presumptive heir with regard to R on the grounds of the circumstances mentioned in B. above, etc.

E. In this manner, at the time of P's death, the marital relationship between P and R had lost substance and had become a mere facade, and such circumstance had been fixed and was not expected to be resolved in the near future. Therefore, P and R were for all practical purposes divorced.

3.(1) The Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act is intended to promote the welfare of employees of small and medium-sized enterprises, etc. (Article 1). The same Act has provisions on the scope and order of surviving family members qualified to receive payment of a retirement allowance in the case where a person retires due to his/her death, and provides that the spouse of a retired person, including a person who has for all practical purposes been in circumstances similar to the marital relationship with the retired person, is a surviving family member with the top-priority (Article 14, paragraph (1), item (i) and paragraph (2)). The same Act then provides that relatives who were in the circumstance where they had maintained their livelihood mainly by the income of the person covered by mutual aid and some of relatives who were not in such circumstances are subsequent surviving family members in sequence (paragraph (1), items (ii) to (iv) and paragraph (2) of the same Article). In this manner, the aforementioned provisions on the scope and order of surviving family members are considered to provide for beneficiaries from a perspective different from inheritance under the Civil Code mainly for the purpose of securing the living of surviving family members of a person covered by mutual aid who have depended on the income of the person covered by mutual aid. Although the aforementioned retirement allowance is paid based on a mutual aid contract, in light of such purpose, the scope of surviving family members who are the beneficiaries thereof should be understood from a realistic perspective in line with the actual conditions of the family relationship in the same manner as the case of a public benefit that has a social security-like nature. It is reasonable to consider that a spouse, who falls under the aforementioned surviving family members, refers to a person who has actually lived with a person who died as husband and wife in cooperation with each other from a commonsense standpoint (see 1979 (Gyo-Tsu) No. 109, the judgment of the First Petty Bench of the Supreme Court of April 14, 1983, Minshu Vol. 37, No. 3, at 270).

Based on the above, it should be said that a spouse under the Civil Code does not fall under a spouse referred to in Article 14, paragraph (1), item (i) of the Small and Medium Sized Enterprise Retirement Allowance Mutual Aid Act in the case where his/her marital relationship has lost substance and has become a mere facade and such circumstance has been fixed and is not expected to be resolved in the near future, that is, in the case where he/she is for all practical purposes divorced. Incidentally, this is not affected by whether a person who has for all practical purposes been in circumstances similar to the marital relationship exists in addition to a spouse under the Civil Code.

(2) Moreover, a survivor benefit based on the JPP Fund Rules is intended to contribute to the stability of lives and improvement of welfare of the people in combination with a public pension benefit (see Article 1 of the Defined-Benefit Corporate Pension Act). A survivor lump sum payment based on the Publishers' Fund Rules is intended to ensure the stability of lives and improvement of welfare of the members (see Articles 1 and 106 of the Employees' Pension Insurance Act prior to the 2013 amendment). The Defined-Benefit Corporate Pension Act and the Cabinet Order for Employees' Pension Fund provide that the scope and order of surviving family members qualified to receive these payments are to be specified by the rules and set forth the following as surviving family members who can be specified by the rules: a spouse, including a person who has been virtually in circumstances similar to the marital relationship, lineal relatives by blood, brothers, and sisters, and other relatives who have maintained their livelihood mainly by the income of a benefit recipient or other relatives who have shared livelihood with a benefit recipient. In response to this, the JPP Fund Rules and the Publishers' Fund Rules provide that the aforementioned persons are surviving family members. In consideration of such method of providing for surviving family members, the provisions in the aforementioned rules are also considered to have specified beneficiaries mainly for the purpose of securing the living of surviving family members who have depended on the income of a benefit recipient. In light of such purpose, it should also be said that a spouse under the Civil Code does not fall under a spouse qualified to receive the payment of the aforementioned survivor benefit and survivor lump sum payment in the case where he/she is for all practical purposes divorced, as explained in (1) above.

(3) When this determination is applied to this case, P and R were for all practical purposes divorced at the time of P's death, as mentioned above. Therefore, R does not fall under a spouse qualified to receive the payment of the Retirement Allowance, etc.

4. The determination of the court of prior instance to the same effect as above is legitimate and can be upheld. All the judicial precedents cited in the counsel's arguments are irrelevant in this case, and none of the arguments made by the counsel are acceptable.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment.

Justice KIZAWA Katsuyuki

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya