2. B

3. C.

4. D;

5. E.

6. F;

7. G. G.

8. H;

2. The costs of lawsuit are assessed against the plaintiffs.

A. The decision of rejection of this case

1) The Plaintiff A is the deceased’s child, and the deceased was forced by Japan to act as a worker in the Russia area around January 1942, and died in Russia on January 26, 1991 during the course of returning to Korea.

2) Plaintiff B is the deceased J’s child, and the deceased J was forced to be mobilized by Japan to work in the Russia area around 1939, and died from Russia on April 22, 1965.

3) Plaintiff C is the deceased K’s child, and the deceased K was forced to be mobilized by Japan as a worker in Russia area around 1940, and died from Russia on May 4, 1983.

4) Plaintiff D is the deceased L’s child, and the deceased was forced to be mobilized by Japan as a worker in Russia area around 1943, and died from Russia on May 13, 1968.

5) Plaintiff E is the deceased M’s child, and the deceased was forced by Japan to be mobilized as a worker in Russia region around July 1943, and died on November 7, 1968 from Russia.

6) On June 201, the aforementioned Plaintiffs (hereinafter referred to as “Plaintiff A and four others”) filed an application with the Defendant for consolation benefits to the bereaved family members of the victims of forced mobilization in foreign countries under Article 4 of the Special Act on the Investigation of Forced Mobilization during the Time of War and the Support for Victims of Forced Mobilization in Foreign Countries (hereinafter “Special Act”). On May 3, 2012, the Defendant died during the process of forced mobilization and returned to the Republic of Korea, and the deceased J, K, L, and M were forced to be mobilized.

A. Since the victim died between April 1, 1938 and September 30, 1990, the Plaintiffs determined as victims of compulsory mobilization by foreign force, and recognized the fact that the Plaintiffs were their bereaved families. However, the Plaintiffs decided to dismiss the application for payment of consolation money, etc. on the ground that the Plaintiffs did not have the nationality of the Republic of Korea and constitutes a person excluded from the payment of consolation money under Article 7 of the Special Act (hereinafter referred to as the "decision of rejection of this case").

B. The dismissal ruling of this case

1) Plaintiff F is the child of the network N, and the network N was forced to be mobilized by Japan to work in the Russia area on October 194, 194, and died from the Russia area on September 25, 2007 at around October 25, 2007.

2) Plaintiff G is the deceased 0’s child, and land was forced by Japan to be mobilized as labor in Russia and Japan’s Pussia area around 1938, and died in Russia on February 28, 201.

3) Plaintiff H is the net P’s child, and the net P was forced to be mobilized by Japan as a worker in Russia area around 1941, and died in Russia on October 9, 1993.

4) On June 201, the above plaintiffs (hereinafter referred to as "Plaintiff F et al.") filed an application with the defendant for consolation benefits as bereaved family members of the victim of forced mobilization in a foreign country under Article 4 of the Special Act. On May 3, 2012, the defendant was found to have suffered damage from forced mobilization of N,0, and P, but each time of death did not meet the requirements for victims of mobilization in a foreign country under Article 2 of the Special Act after September 30, 1990 (hereinafter referred to as "decision of dismissal of this case").

[Ground of recognition] Facts without dispute, Gap evidence 1 to 8, Eul evidence 1 to 8, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) Article 2 subparag. 3(c) and Article 7 subparag. 4 of the Special Act (hereinafter referred to as “the Special Act”) discriminates against only one person who voluntarily dies without reasonable grounds, and thus contravenes the principle of equality under Article 11 of the Constitution, and are contrary to the duty to protect overseas Koreans and the spirit of the Constitution. Accordingly, each of the dispositions of this case based on the Special Act is unlawful.

2) Since Plaintiff F and two others are not recognized as eligible for application pursuant to Article 7 subparag. 4 of the Special Act as a Russian nationality, the Defendant should have decided to dismiss the said Plaintiffs. Accordingly, the instant dismissal decision is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the provisions of the Special Act of this case are unconstitutional

A) Legal nature of entitlement to consolation benefits under Special Act

The entitlement to consolation benefits under the Special Act is also a right that is specifically formed by a specific law, like other State’s entitlement to veterans benefits or entitlement to social security benefits. Matters concerning the specific details of compensation to be paid by the State to the bereaved family members of victims and victims subject to overseas compulsory mobilization (hereinafter “victims, etc.”) are determined according to the State’s financial capacity, overall level of social security, evaluation standards for victims, etc. Therefore, the right to consolation benefits falls within the scope of freedom of legislative formation, which basically refers to the nation’s legislative policy.

B) Whether the right to equality is violated

(1) The criteria for determining whether to violate the principle of equality and equality are different depending on the scope of legislative formation rights recognized to legislative persons. In other words, matters concerning social fundamental rights are the area where legislative legislative formation rights are granted to legislative persons under the Constitution. In other words, unlike the statutes that limit the rights of the people or impose new obligations on the people, a broad range of legislative formation rights should be granted to legislative persons. Therefore, the legislators have the authority to enact a law that determines that they are reasonable by taking into account all the circumstances, such as the legislative purpose, beneficiary status, national budget and ability to compensate, and the contents of the enacted law do not clearly lack rationality (see, e.g., Constitutional Court en banc Decision 2009Hun-Ba49, May 27, 2010). Therefore, it is sufficient to determine whether there is a significant unreasonable reason for discrimination in relation to whether the provisions of the Special Act of this case violate the principle of equality, i.e., whether there is a legislative person's self-determination.

(2) Determination

The Special Act established the truth of history by identifying the truth of the forced mobilization damage during the period of the Pacific War, and furthermore, regarding the Agreement on the Settlement of Property and Claims between Japan and the Republic of Korea and the Agreement on Economic Cooperation in 1965, with the aim of the State to cure the suffering of victims of the mobilization of forced overseas before and after the Pacific War and contribute to national unity (Article 1). Article 34(1) of the Constitution of the Republic of Korea provides, “All citizens shall have the right to live a life worthy of human dignity.” Article 34(2) of the Constitution provides that “All citizens shall have the right to live a life worthy of human dignity.” Article 34(2) of the Constitution of the Republic of Korea provides that the State’s duty to promote social security and social welfare (the legislative duty) shall be guaranteed to the extent consistent with such basic purpose. Therefore, the right to receive consolation benefits to bereaved families of victims

그런데 원고들이 가질 수 있는 특별법상의 위로금 수급권이 어느 정도 재산권(상속권의 대상)으로서의 성질을 지니고 있는지는 별론으로 하고, 위 수급권은 천부적으로 가지는 권리가 아니며 법률에 의해서 비로소 인정되는 권리이디로, 그에 대한 권리는 당연히 특별법에서 정한 요건에 해당된다고 결정된 날로부터 발생한다. 또한, 특별법의 입빕취지는 피해자 등과 그 유족에게 국가가 응분의 보상을 행하는 윤리적 보답행위를 구체화한 국가보훈적 법률로시 위로금 지급 대상의 범위에 관한 규정은 국가제정형편, 국민정서와 법적 안정성 및 타 국가공헌자와의 형평성 등을 종합적으로 고려하여 입법 형성권의 범위 내에서 입법정책적으로 결정된 것이다. 따라서 사할린 지역 강제동원 피해자의 경우의 기간을 1938. 4. 1.부터 1990. 9. 30.까지로 정하고, 대한민국의 국적을 갖고 있지 아니한 사람을 위로금 수급권자 범위에서 배제하였다고 하여도 이 사건 특별법조항의 위로금 수급권자의 범위에 관한 입법자의 선택이 자의적이어서 현저히 불합리하다고 볼 사정이 없으므로, 이 사건 특별법 조항이 헌법 제11조에 위배되는 자의적인 차별취급 규정이라고 할 수 없다(오히려 특별법이 제정되기 전의 모법인 태평 양전쟁 전후 국위 강제동원희생자 등 지원에 관한 법률에서는 사할린 지역 강제동원 피해자의 경우에도 특별법 제2조 제3호 가목 요건에 해당되어야만 '국외강제동원 희생자'로 인정되었으나, 사할린 지역으로 강제동원된 피해자의 경우 당시 구 소련에 의하여 강제로 억류되는 바람에 국내로의 귀환이 사실상 어려웠던 점, 구 소련과의 미수교 등으로 정확한 사망 시점이나 행방불명 시점을 특정하기 어려운 점 등을 감안하여 그 기간을 1990, 9. 30.까지로 인정하도록 개정된 것이다).

B) Whether the obligation to protect overseas Koreans and the spirit of constitutional specialization are violated

(1) Whether the obligation to protect overseas Koreans is violated

Even if the state has a duty to protect overseas Koreans, the issue of how to realize the state's duty to protect the nation's nationals is, in principle, within the scope of the legislator's responsibility, who is granted a direct democratic legitimacy by the citizens in accordance with the separation of powers and the principle of democracy and takes political responsibility for its decision. As such, the court can only review the performance of the duty to protect by the legislators or the enforcement officer delegated by the legislators only

Therefore, when examining whether the state did not fulfill its duty to protect Korean nationals residing abroad, it is necessary to confirm the violation of the State’s duty to protect the legal interests only when it is evident that the State did not take any protective measure or the measures taken are entirely inappropriate or very insufficient to protect the legal interests, by taking into account the violation of the so-called “the prohibition against the protection of the right to a crime,” which is at least appropriate and efficient by the State to protect them (see, e.g., Constitutional Court Order 2006Hun-Ma711, Jul. 31, 2008).

However, as seen earlier, the Special Act provides for the scope of a person entitled to consolation benefits, but limits the period in cases of forced mobilization of a region where it is intended to specify the scope of a person entitled to consolation benefits, and excludes a person who does not have the nationality of the Republic of Korea from a person entitled to consolation benefits, but it is reasonable to interpret it as a reasonable decision of the legislators taking into account the various circumstances. Therefore, it cannot be said that such a measure is entirely inappropriate or very insufficient to protect legal interests. Therefore, the Special Act cannot be deemed as a violation

(2) Whether the spirit of constitutional specialization is violated

However, it is unclear whether the State can have a duty to protect fundamental rights on the facts that occurred prior to the enactment of the Constitution based on the provision on inheritance of the Ministry of the Provisional Government of the Republic of Korea, declared in the preamble of the Constitution. Even if the State is responsible for the succession of the Provisional Government of the Republic of Korea to the right to life or the right to physical freedom due to compulsory mobilization at the time, and can be seen as a matter of the protection of fundamental rights under the current Constitution, the constitutional basis does not exist to deem that only providing financial support to the victims of compulsory mobilization abroad is the only method of protecting fundamental rights. Considering that the State has taken measures to designate them as victims of compulsory mobilization overseas through certain procedures and make their sacrifice, even if the State failed to take any measures to protect the victims of compulsory mobilization overseas, it cannot be readily concluded that the State is inappropriate or fully inadequate to take all measures taken by the State (see, e.g., Constitutional Court Order 201Hun-Ma49, Feb. 29, 2014).

2) Whether the dismissal decision of this case is legitimate

Article 4 of the Special Act provides that the consolation money shall be paid to the victims of the mobilization by overseas force or their bereaved family members, and Article 7 subparag. 4 of the Special Act provides that the consolation money shall not be paid to those who do not have the nationality of the Republic of Korea under Article 4. In light of the form of the above provision, the defendant who received the application for consolation money shall first examine whether it falls under the grounds for dismissal under each subparagraph of Article 22 subparag. 1 of the Special Act, and then determine whether it falls under the "victims of the mobilization by overseas force" under each item of Article 2 subparag. 3 of the Special Act and determine whether to pay consolation money under Article 4 of the Special Act, and if it falls

Ultimately, the provision of Article 7 subparagraph 4 of the Special Act does not provide a formal requirement that the application for payment of consolation money itself should be interpreted as an exception to the payment of consolation money ( even in the case of the decision of dismissal in this case, it is reasonable to examine whether the case falls under the items of Article 2 subparagraph 3 of the Special Act for the plaintiff A and four others according to the form of the above provision and determine that the case falls under Article 7 subparagraph 4 of the Special Act. Thus, even if the expression of the order is somewhat inconsistent, the contents of the decision

In this case where it seems that the dismissal decision of this case does not fall under any of the subparagraphs of Article 22(1) of the Special Act, the defendant first judged that the plaintiff F et al. and two other persons pursuant to the items of Article 2(3) of the Special Act were not "victims of forced mobilization", and the plaintiff et al. did not fall under the requirements for the payment of consolation benefits under Article 4 of the Special Act. Therefore, it is reasonable to view that the defendant could make a dismissal decision without deciding whether the plaintiff F et al. fall under the grounds of each subparagraph of Article 7 of the Special Act. The plaintiffs' above assertion is without merit, and the dismissal decision of this case is legitimate.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong Jae-hee

Judges Yang Jae-chul

A person shall be appointed.