(영문) 서울행정법원 2016.4.7. 선고 2015구합10131 판결

The decision to dismiss an application for payment of consolation benefits to the Plaintiff on March 26, 2015 and the decision to dismiss the application for retrial on June 25, 2015 shall be revoked respectively.

Reasons

1. Case summary

A. Around 1940, the father of the Plaintiff had been forced to mobilized as a worker in the coal mine located in the North Korean Dos, and was missing. On June 4, 2010, the Plaintiff filed a request for payment of consolation money pursuant to the Special Act on the Investigation of Forced Mobilization and Support for Victims, etc. of Overseas Mobilization (hereinafter “the Committee”) with respect to the father of the Support Committee for the Investigation of Damage from Forced Mobilization during the Japanese War and the Support for Victims, etc. of Forced Mobilization through the Man market (hereinafter “Committee”). On November 23, 2012, the Committee recognized the Plaintiff’s father as a victim of forced mobilization of overseas force under Article 2 of the Forced Mobilization Investigation Act and decided to pay KRW 20,000 to the Plaintiff, who is the Plaintiff’s bereaved family member as prescribed in Article 3 of the same Act.

B. On June 30, 2014, the Plaintiff filed an application with the Committee for the payment of consolation money under the Compulsory Mobilization Investigation Act with respect to B on the ground that “B, who is the Plaintiff, died during the period of compulsory mobilization,” through the net market on June 30, 2014. Accordingly, on March 26, 2015, the Committee decided to dismiss the Plaintiff’s application for the payment of consolation money pursuant to Article 22 of the same Act (hereinafter referred to as “decision to dismiss the application for consolation money”).

C. On May 4, 2015, the Plaintiff filed an application for review with the Committee against the decision to dismiss the above-mentioned application for prohibition. Accordingly, on June 25, 2015, the Committee decided that the Plaintiff’s application for review was dismissed pursuant to Article 24 of the Compulsory Mobilization Investigation Act (hereinafter “decision to dismiss the application for review”).

D. Meanwhile, as of the date of the closing of argument in the instant case, the term of existence of the commission under Article 19(1) of the Compulsory Mobilization Investigation Act expired, and accordingly, the Defendant succeeded to the administrative affairs under the jurisdiction of the commission at the time the term expires.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 3, 7, 8, Eul evidence Nos. 1, 5, 10, 11, 14, and 16, the purport of the whole pleadings

2. Determination as to the legitimacy of the part of the dismissal decision of the motion for reexamination among the instant lawsuit

A. We examine ex officio the legitimacy of the part of the decision to dismiss the request for re-adjudication of the instant lawsuit.

B. According to the Compulsory Mobilization Investigation Act, where the commission has made a decision to dismiss under Article 22, a dismissal decision under Article 24, etc., it shall serve the reporter or applicant with an original copy of the written decision without delay stating the grounds therefor (Article 29(1)), and where a person who has received a written decision pursuant to Article 29(1) has an objection thereto, he/she may file a written application for reexamination with the commission within 60 days from the date he/she receives the written decision (Article 29(5)), and the subsequent decision of the commission’s reexamination shall be made within 60 days from

C. However, unlike the administrative appeal procedure, which is a procedure that allows an administrative agency to protest against a disposition or omission, which is separate from the administrative agency, with the aim of remedying the rights or interests of the people infringed by an illegal or unjust disposition or omission of the administrative agency’s decision, the procedure is to allow the administrative agency to voluntarily correct the case where the said decision of rejection is erroneous after re-examination of the applicant’s request. Therefore, where the commission rendered a decision of rejection that the request for review filed against the above decision of rejection is rejected after the above decision of rejection, it means the notification on the premise that the previous decision of rejection is maintained, and it does not have the effect of limiting the applicant’s rights or imposing obligations on the other party separately from the previous decision of rejection. Accordingly, such a decision cannot be deemed an exercise of public authority or an equivalent administrative action that causes a new change in the applicant’s rights and duties, and thus cannot be subject to independent

D. If so, the part on the decision to dismiss an application for reexamination among the lawsuits in this case is unlawful as a revocation lawsuit filed against the non-subject matter of an appeal litigation.

3. Judgment on the remaining claims of the plaintiff

A. The plaintiff's assertion

Bana, who is the plaintiff, sent out to Japan, along with the father of the plaintiff, in the area of the coal mine in North Korea.

A. Accordingly, according to Articles 27 and 30 of the Civil Act, B died simultaneously at the same place as the father of the Plaintiff. However, with respect to the Plaintiff’s father, consolation money under the Compulsory Mobilization Investigation Act was paid to the Plaintiff. Accordingly, in relation to B who died under the same conditions, consolation money under the Compulsory Mobilization Investigation Act should be paid to the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The Plaintiff’s evidence Nos. 1, 2, 4, 5, and 6 alone is insufficient to recognize the fact that she or B was missing after leaving the Plaintiff’s father in the coal mine area in North Korea, and there is no other evidence to acknowledge this otherwise.

2) As alleged by the Plaintiff, even if it is recognized that the Plaintiff’s she left Japan and was missing together with his her her her her her her her her her her her her her her her father, and in accordance with Articles 27 and 30 of the Civil Act, it is recognized that B died simultaneously at the same place as her her her her her her her her her her her her her her her her her her her her her her her her her father, the Act on the Investigation of Forced Mobilization provides for the payment of consolation money to the victims or their her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her hers her

3) Therefore, the Plaintiff asserts that the remainder of the claim is without merit (the Plaintiff, without any compulsory mobilization investigation law, shall pay B-related consolation benefits for the same reason as the bereaved family members of victims related to large cases, etc., have been paid. However, the payment of such consolation benefits is based on the enactment and application of the relevant law, such as the case of the Compulsory Mobilization Investigation Act, and thus, the Plaintiff’s assertion that B-related consolation benefits should be paid solely on the ground that the State paid consolation benefits pursuant to this case and other individual laws subject to this case cannot be accepted.

4. Conclusion

Therefore, the part of the decision to dismiss the request for reexamination among the lawsuits of this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.