(영문) 광주지방법원 2021.4.15. 선고 2016구합13137 판결

A. The plaintiff is a highly disabled person of the first-class disability with cerebral diseases, who suffers from multi-malopic typosis, low typopic typosis, etc.

B. The Plaintiff applied for approval for long-term care to the National Health Insurance Corporation on around 2010 after receiving a diagnosis of multi-presidential certificate on around 2004. From around April 201, the Plaintiff was determined as class 1 to class 5 of long-term care benefits pursuant to the former Long-Term Care Insurance Act (amended by Act No. 12067, Aug. 13, 2013) and received visiting care (five times a week and three hours a day) among long-term care benefits. From April 2016, the status gradually aggravated, the Plaintiff was determined as class 2 of long-term care benefits of the former Act on Long-Term Care Insurance (amended by Act No. 15881, Dec. 11, 2018; hereinafter referred to as the “former Long-Term Care Insurance Act”).

C. On September 2016, the Plaintiff filed an application for change of social welfare services with respect to the Defendant, among activity support allowances under the former Act on Activity of Persons with Disabilities (amended by Act No. 15273, Dec. 19, 2017; hereinafter “former Act on Activity of Persons with Disabilities”) (hereinafter “instant application”).

D. On September 26, 2016, the Defendant rendered a disposition rejecting the Plaintiff’s application on the ground that the Plaintiff was entitled to an exemption from an activity support allowance pursuant to Article 5 subparag. 3 of the former Act on Long-Term Care Insurance for the Aged, on the ground that the Plaintiff received benefits similar to an activity support allowance, among long-term care benefits under the former Long-Term Care Insurance Act (hereinafter “instant refusal disposition”).

E. On December 2, 2016, the Plaintiff filed the instant lawsuit seeking revocation of the instant refusal disposition with the instant court. In the instant lawsuit, the Defendant added the grounds for the instant refusal disposition to the grounds for excluding activity support allowances pursuant to Article 5 subparag. 2 of the former Act on Long-Term Care Insurance for the Aged as the Plaintiff constitutes “seniors, etc.” under Article 2 subparag. 1 of the former Act on Long-Term Care Insurance for the Aged.

F. On March 10, 2017, the Plaintiff filed an application with this court for an adjudication on the unconstitutionality of laws regarding Article 5 subparag. 2 and subparag. 3 of the former Act on Activity of Persons with Disabilities. On July 5, 2017, this court requested to the Constitutional Court for adjudication on the unconstitutionality of laws regarding Article 5 subparag. 2 of the former Act on Activity of Persons with Disabilities, and dismissed the application for adjudication on the unconstitutionality of laws on the grounds that the purport of the provision is to prevent overlapping benefits, and that it is justifiable and reasonable (this Court Order 201705086).

G. On December 23, 2020, the Constitutional Court rendered a decision that "the part concerning "a person who is under the age of 65 among the elderly under Article 5 (2) of the former Act on Long-Term Care Insurance for Older Persons" and who has a disease with dementia and cerebrovascular diseases, as prescribed by Presidential Decree, does not conform with the Constitution" in the above case, and ordered the provisional application of the above legal provision (hereinafter referred to as "the legal provision of this case") until the legislator amended the law as of December 31, 202.

[The Constitutional Court Order 2017Hun-Ga22, 2019Hun-Ga8, hereinafter referred to as "Unconformity with the Constitution" is "Unconformity with the Constitution."

H. In the above decision, the Constitutional Court held that the legal provision of this case is against the principle of equality because it is difficult to see that there is any reasonable reason to regard such discrimination as being in violation of the principle of equality because it is difficult to see that there is any reasonable reason to regard it as being in the case of the former Act on Long-Term Care Insurance for the Aged among the disabled under 65 years of age who are unable to lead a daily life and social life on their own.

I. Furthermore, the above decision suggested the difference between long-term care benefits received by a person with a senior disease and an activity support allowance received by a person with severe disabilities (except for persons with severe disabilities with a senior disease) as follows:

As the contents and methods of an investigation to select recipients of activity support allowances and long-term care benefits are different, it is difficult to regard a specific person as benefit for the supply of long-term care benefits. However, as seen earlier, in the case of activity support allowances, the monthly maximum amount of activity support allowances has reached 6,480,00 won (one section) and is subdivided into 15 sections, while long-term care benefits are divided into maximum monthly amount of 1,498,300 won (one class) and five classes, and there is a high difference in the amount of benefits.In addition, as the case of activity support allowances focuses on self-reliance, it is very important to distinguish the amount of benefits.In addition, it focuses on the wide range of daily life support as well as social activity participation. On the other hand, long-term care benefits are primarily on the premise of the daily life support, nursing, and expropriation of facilities within a specific scope, it is difficult to consider the possibility of self-support benefits or the methods of calculating long-term care benefits without reasonable needs of persons with disabilities.

(j) The Constitutional Court stated in the above decision the reasons for provisional application of the legal provision of this case as follows.

The unconstitutionality of Article 14(1) of the Act on Long-Term Care Insurance for the Aged is that if there is an elderly disease by dividing the disabled persons who have difficulty in living their daily lives and social life on their own under 65 years of age, they can not apply for an activity support allowance if they are found to be older.However, if the provisions subject to adjudication are declared as unconstitutional simply and become invalid immediately after they are declared as unconstitutional, there is a possibility of double benefits, and there is a concern that there is a legal gap in the classification system of the benefits of the Act on Activity of the Disabled

In addition, as the activity support system for disabled persons is evaluated as a national project related to disabled persons which has the largest influence on the quality of life and healthy life of disabled persons, legislative persons are responsible for establishing systems and policies to select recipients within a reasonable scope by comprehensively taking into account the will and possibility of self-reliance of disabled persons, life style of society including life cycle, state financial situation, overall social security situation and balance, but considering the characteristics of social security benefits, it is in principle the legislative discretion of legislators to remove the unconstitutionality of the provision subject to adjudication in any way and to adjust the constitutionality of the provision subject to adjudication.Therefore, the Constitutional Court's ruling of inconsistency with the Constitution is declared as to the provision subject to adjudication and the provisional application is ordered until the legislative amendment is made.

(k) Meanwhile, Article 5 of the former Act on Activity of Persons with Disabilities was amended respectively by Act No. 15273, Dec. 19, 2017; Act No. 17793, Dec. 29, 2020; however, the main text of subparagraph 2 of the same Article, including the instant legal provision, has not been amended until now.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 2 and 3 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

The rejection disposition of this case is based on subparagraphs 2 and 3 of Article 5 of the former Act on Activity of Persons with Disabilities, which is unconstitutional.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

(a) Whether additional grounds for disposition are permitted;

As seen earlier, Article 5 subparagraph 2 of the former Act on Long-Term Care Insurance for the Aged was added to the grounds that Article 5 subparagraph 2 of the former Act on Activity for the Disabled Persons applies to the case of this case as the "seniors, etc." under Article 2 subparagraph 1 of the former Act.

Article 5 subparag. 3 of the former Act on Long-Term Care Insurance for the Aged, Etc. on the premise that the ground that Article 5 subparag. 3 of the former Act on Activity of Persons with Disabilities applies to the plaintiff is "the elderly under Article 2 subparag. 1 of the former Act on Long-Term Care Insurance for the Aged, etc." is subject to the application of Article 5 subparag. 3 of the former Act on Activity of Persons with Disabilities since the plaintiff actually received long-term care benefits provided to the person recognized as the elderly, etc..

B. Whether the rejection disposition of this case is legitimate under Article 5 (3) of the former Act on Activity of Persons with Disabilities

1) Whether "the case where a person receives other benefits similar to the activity support allowances" under Article 5 subparagraph 3 of the former Act is an independent ground for exclusion of activity support allowances.

Article 5 subparag. 3 of the former Act on Activity of Persons with Disabilities provides that "cases prescribed by Presidential Decree, such as cases where persons receive other benefits similar to those of activity support allowances or persons admitted to a livelihood security facility under Article 32 of the National Basic Living Security Act" shall be excluded from activity support allowances. Accordingly, Article 4 of the former Enforcement Decree of the Act on Activity Assistant Services of Persons with Disabilities (amended by Presidential Decree No. 27616, Nov. 29, 2016; hereinafter referred to as "former Enforcement Decree of the Act on Activity Assistant Services of Persons with Disabilities") provides that "cases prescribed by Presidential Decree" under Article 5 subparag. 3 of the Act means any of the following cases:

In light of the language, form, structure, etc. of Article 5 subparagraph 3 of the former Act on Activity of Persons with Disabilities, it is a problem that Article 5 subparagraph 3 of the former Act on Activity of Persons with Disabilities stipulates that "if a person receives other benefits similar to the activity support allowance, or if a person enters a livelihood security facility under Article 32 of the National Basic Living Security Act, such as "if a person receives other benefits similar to the activity support allowance" or "if a person receives other benefits as prescribed by Presidential Decree" or "where a person is admitted to a livelihood security facility under Article 32 of the National Basic Living Security Act", it is a problem that only the case where the Minister of Health and Welfare recognizes that a person is receiving benefits similar to the activity support allowance under Article 4 subparagraph 4 of the former Enforcement Decree of the Act on Activity of Persons with Disabilities is entitled to a certain amount of benefits similar to those of the activity support allowance under the above provision, it shall include matters similar to those enumerated in the Presidential Decree after being directly listed in the above provision, and it shall have the same effect as the provisions of the former Act on activity support under Article 4, regardless of the Act.

Ultimately, from any point of view, ‘the case of receiving other benefits similar to ‘the activity support allowance' under Article 5(3) of the former Act on Activity of Persons with Disabilities is an independent reason for exclusion regardless of the contents of the Presidential Decree.

2) Whether, among long-term care benefits under the former Long-Term Care Insurance Act, visit care constitutes “other benefits similar to activity support benefits” under Article 5 subparag. 3 of the former Act on Activity of Persons with Disabilities

As seen earlier, Article 23(1)1 (a) of the former Long-Term Care Insurance Act provides that, among long-term care benefits under the former Long-Term Care Insurance Act, the term “long-term care benefits are provided by a long-term care worker visiting a beneficiary’s home, etc. to assist his/her physical activities and household activities, etc.” and Article 16(1)1 of the former Act provides that, among the activity support benefits, activity support allowances include “the activity support allowances provided by an assistant under Article 27, who is a activity support worker visit a beneficiary’s home, etc. to support his/her physical activities, household activities, and mobility support, etc.” in light of the fact that the activity support allowances provided by Article 27 as “the activity support allowances provided by an activity support worker”, it is reasonable to view that the above long-term care

3) Whether the Plaintiff constitutes “cases where other benefits similar to activity support allowances under Article 5 subparag. 3 of the former Act on Activity of Persons with Disabilities are paid”

Article 5 subparag. 3 of the former Act on Activity of Persons with Disabilities provides that "if a person receives other benefits similar to activity support allowances" as the grounds for excluding activity support allowances. In this case, the purpose of the above exclusion provisions is to prevent duplicate provision of activity support allowances as seen earlier, and ② whether a person falls under the above exclusion provisions is determined as the recipient's benefits under the former Act on Activity of Persons with Disabilities. Thus, even if a person gives "other benefits similar to activity support allowances" until the above eligibility decision is made, it shall be deemed not to fall under the above exclusion provisions. ③ Such renunciation can be made through an application to change "other benefits similar to the existing activity support allowances" in exchange as activity support allowances. ④ If an application to change such exchange does not allow it temporarily, it can be interpreted that the applicant's personal characteristics are unconstitutional, and it can be interpreted that a person who applies for activity support allowances similar to those of the person with disabilities is not unconstitutional in light of the personal characteristics of the applicant.

In this case, when the Plaintiff received long-term care benefits (Visits) under the former Act on Long-Term Care Insurance for the Aged, the Defendant is active under the former Act on Activity of Persons with Disabilities.

As seen earlier, the fact that the Plaintiff filed an application for change of social welfare service, the content of which is the application for benefits (activity assistance) is as follows. In light of the circumstance that: (a) an application for change is explicitly filed without a new application; and (b) the Plaintiff’s intent cannot be viewed as an intention to receive both benefits in duplicate; (c) it is difficult to view that the Plaintiff’s application falls under the case where the Plaintiff received other benefits similar to the activity support allowances under Article 5 subparag. 3 of the former Act on Activity of Persons with Disabilities because it constitutes an application

4) Sub-determination

Therefore, the rejection disposition of this case that the plaintiff refused the above application is illegal on the ground that it constitutes "the case where other benefits similar to those of activity support allowances under Article 5 (3) of the former Act on Activity of Persons with Disabilities are received."

C. Whether the rejection disposition of this case is legitimate under Article 5 (2) of the former Act on Activity of Persons with Disabilities

1) The part concerning the suspension of application of the legal provisions of this case

A) Relevant legal principles

Even where a decision of inconsistency with the Constitution on a provisional application is rendered with respect to a non-permanent provision, there may be cases that have an effect on the part where the provisional application of the relevant provision is suspended, rather than on the matter that takes effect (see, e.g., Supreme Court Decisions 2018Du49154, Jan. 30, 2020; 2016Du47697, Jul. 11, 2018; 2008Du1885, Sept. 29, 201). In such cases, when the amendment was made without the legislative amendment, the part where the applicable provision of the relevant provision is suspended becomes invalid retroactively as at the time when the decision of inconsistency with the Constitution was made (see, e.g., Supreme Court Decision 2018Du49154, Jan. 30, 202). Furthermore, the decision of inconsistency with the Constitution becomes final and conclusive as at the time when the relevant provision becomes unconstitutional and becomes unconstitutional as at the same time when it becomes unconstitutional (see Supreme Court Decision 2081816.

B) Whether to suspend the application of the legal provisions of this case

In full view of the unconstitutionality of the legal provision of this case and the decision of inconsistency with the Constitution and the grounds for provisional application of the legal provision of this case, the part ordering provisional application of the legal provision of this case is limited to "a certain case where there is a problem between activity support allowances and other benefits under the former Act on Activity of Persons with Disabilities" and the remaining part shall be deemed to be in the state of suspension of application. The reasons are as follows.

(1) The decision of inconsistency with the Constitution of the Republic of Korea, on the grounds of provisional application of the legal provisions of the instant case, refers to the respect for legislative formation right as to ① overlapping benefits; ② there is a legal gap in the benefits classification system of the former Act on Activity of Persons with Disabilities and the former Act on Long-Term Care Insurance; ③ the reasonable scope of the selection of beneficiaries; ③ the formation of appropriate systems and policies; and

(2) First, we examine the issues arising from overlapping benefits.

Article 2 subparagraph 1 of the former Act on Long-Term Care Insurance for Older Persons (hereinafter referred to as "persons with severe disabilities") who has been suffering from a scarcity disease prescribed by Presidential Decree, such as dementia and cerebrovascular disease (hereinafter referred to as "senior disease"), and who has difficulty in the daily life and social life of the persons with severe disabilities as prescribed in Article 5 subparagraph 1 of the former Act on Activity of Persons with Disabilities (hereinafter referred to as "persons with severe disabilities") can receive long-term care benefits under the former Act on Long-Term Care Insurance for Older Persons with Disabilities, on the other hand, they cannot receive activity support allowances

However, even if the legal provision of this case is declared unconstitutional and becomes null and void immediately after it is declared unconstitutional, Article 5 subparagraph 3 of the former Act on Activity of Persons with Disabilities excludes those who do not fall under the cases prescribed by Presidential Decree, such as where those who received other benefits similar to the activity support allowances or have entered the assistance facility under Article 32 of the National Basic Living Security Act. Thus, if those with severe disabilities who suffered from elderly diseases receive "other benefits similar to the activity support allowances", they cannot receive the activity support allowances, and even if they receive other benefits similar to the activity support allowances, they cannot receive the activity support allowances, and even if they do not receive the activity support allowances due to the suspension of supply and demand, they do not immediately cause the exclusion of the supply and demand of activity support allowances under Article 5 subparagraph 3 of the former Act on Activity of Persons with Disabilities. Accordingly, if they apply for the change to the activity support allowances other than the activity support allowances under Article 5 (3) of the former Act on Activity of Persons with Severe Disabilities (or if they do not immediately receive the activity support allowances similar to the activity support allowances.)

Therefore, in the case of "the occurrence of a problem caused by duplicate benefits where the immediate loss should be caused by the declaration of unconstitutionality of the above provisional reasons", the case should be limited only to the case where the severely disabled person who suffers from the elderly disease receives "other benefits that are not similar to the activity support benefits" due to the elderly disease, but does not fall under the grounds for exclusion under Article 5 (3) of the former Act on Activity of Persons with Disabilities and applies again for the activity support benefits.

(3) Next, there is a legal gap in the classification system of benefits benefits of the former Act on Activity of Persons with Disabilities and the former Act on Long-Term Care Insurance for the Aged.

The necessity of support for self-reliance under the former Act on Activity for Persons with Disabilities is recognized to be "persons with disabilities who are unable to lead a daily life and social life on their own due to reasons such as physical or mental disability" (Article 1 of the former Act on Activity for Persons with Disabilities), and the necessity of nursing care under the former Act on Long-Term Care Insurance for Older Persons is recognized to be "seniors, etc. who are unable to perform daily life on their own due to reasons such as old age or elderly disease" (Article 1 of the former Act on Long-Term Care Insurance for Older Persons). Therefore, the classification system of the two benefits is not necessarily mutual exclusive, but is different from each other on their own, and the necessity of the above self-reliance support and the need of nursing care is that of a person with severe disabilities, such as "persons with severe disabilities who have been suffering from a disease." In this case, the issue of which benefits should be given priority, and whether the two benefits should be selected alternatively under the principle of equity, regardless of how the two benefits are in a way, or there is no legal gap in the classification system.

In the situation where the legal provision of this case is effective, a severely disabled person who suffers from a disease can only receive long-term care benefits under the former Long-Term Care Insurance Act with the status of a person with a disease with a disability. However, when the legal provision of this case loses its validity, a severely disabled person with a disease with a disability can receive long-term care benefits under the former Long-Term Care Insurance Act with the status of a person with a disease with a disability, and an activity support allowance under the former Act on Activity for Disabled Persons with Disabilities with the status of a severely disabled person. This is, in principle, granted benefits under the former Long-Term Care Insurance Act to a person with a disease with a disability who is under 65 years of age, the eligibility for benefits under the former Long-Term Care Insurance Act with all the severely disabled persons in principle. Rather, it is clear that the classification system of benefits under the former Act on Activity for Disabled Persons has been clearly defined as those eligible for benefits. However, if the legal provision of this case applies for change as an activity support benefit (or if no benefit is applied for an activity support benefit), it is similar to the legal system for activity benefits.

Thus, the case where the legal provision of this case loses its effect, resulting in a legal gap in the classification system of both benefits, shall be limited to the case where the two benefits mentioned above are provided overlapping.

(4) Finally, we examine the respect for legislative formation rights regarding the setting of the reasonable scope of the selection of recipients, the formation of appropriate systems and policies, and the method of coordinating entitlements.

The grounds for respect for legislative formation rights include the need to make a decision of inconsistency with the Constitution, instead of making a simple decision of unconstitutionality as to the provisions of the former Act, and cannot be viewed as the grounds for continuing to maintain the status of unreasonable discrimination and infringement of fundamental rights due to the provision of the former Act until the legislative amendment is implemented (see, e.g., Supreme Court Decisions 2018Du49154, Jan. 30, 2020; 2016Du47697, Jul. 11, 2018; 2008Du1885, Sept. 29, 201). Accordingly, such grounds are difficult to serve as the grounds for provisional application of the provision of the instant Act.

(5) Ultimately, where the legal provision of this case should be applied provisionally like above, the problem arising from the overlapping benefits as seen earlier arises, which is the case where a person with severe disabilities with a disability who has an old-age disease receives different benefits, which does not correspond to the activity support allowance due to a old-age disease, and thus, applies for a overlapping payment of activity support allowances when it does not fall under the grounds for exclusion under Article 5 subparagraph 3 of the former Act on Activity of Persons with Disabilities.

C) The part concerning the suspension of application of the legal provisions of this case

Therefore, the effect of the decision of inconsistency with the Constitution of the Republic of Korea ordering the continuance of the legal provisions of this case is that the severely disabled person who suffers from the elderly disease receives different benefits from the activity support allowance, but applies for an activity support allowance in duplicate, which can exclude the provision of activity support allowances, and furthermore, it does not extend to the fact that the severely disabled person who suffers from the elderly disease receives different benefits from the activity support allowance (or where the severely disabled person files an application for an activity support allowance without any benefits) and the fact that the provision of activity support allowances can be entirely and uniformly rejected and excluded even if it is a ground provision that can exclude the provision of activity support allowances.

In other words, among the legal provisions of this case, the provision that "if a person with severe disabilities who has an elderly disease receives other benefits similar to those of activity support allowances, and applies for the exchange of activity support allowances (or if no person applies for activity support allowances)" can be excluded from the provision of activity support allowances is still in the status of application suspension.

D) In the instant refusal disposition, the Plaintiff received long-term care benefits (Visits) under the former Act on Long-Term Care Insurance for the Aged (the Long-Term Care Insurance for the Aged) with respect to the instant case, and the said benefits correspond to benefits similar to activity support allowances ( activity support allowances) and the Plaintiff filed an application for change of exchange with the above benefits as activity support allowances ( activity support allowances) upon the application of the instant case.

Therefore, the legal provision of this case, which allows the provision of activity support allowances, shall be deemed to be still in a state of suspension of application by the decision of inconsistency with the Constitution, and further, the retroactive effect of the decision of inconsistency with the Constitution of this case shall also extend to the instant case, which is the pertinent case. Therefore, the legal provision of this case shall be deemed to be in a state of suspension of application with respect to

2) After the lapse of the improvement legislation or improvement legislation of the legal provisions of this case, the revocation of the rejection disposition of this case should be made.

A) In a case where an improvement legislation was made pursuant to a decision of inconsistency with the Constitution, considering the purport of the decision of inconsistency with the Constitution as to the provisions of the former Act or the guarantee of effectiveness of specific norm control in a trial of inconsistency with the Constitution, the pertinent case which became subject to the decision of inconsistency with the Constitution as to the relevant provisions of the former Act and where the former provisions of the former provisions of the Act are unconstitutional at least at the time of the decision of inconsistency with the Constitution, and where the court is pending in a court, the decision of inconsistency with the Constitution as to the relevant cases shall be subject to the retroactive effect of the decision of inconsistency with the Constitution as to the relevant cases. Thus, even if the transitional measures are not taken regarding the retroactive application of the Addenda to the amended Act, the former provisions of the Act cannot be applied as they are, and the provisions of the amended legislation, which have been removed with the unconstitutionality, shall be deemed to have been applied (see, e.g., Supreme Court Decisions 20

In addition, when a decision of inconsistency with the Constitution becomes final and conclusive but a decision of inconsistency with the Constitution was made to suspend the application of the provisions without unconstitutionality but the amendment became final and conclusive, it is necessary to prevent any legal gap that does not exist between the time when the decision of inconsistency with the Constitution becomes void and the time when the legal provisions become null and void. As such, even if a decision of inconsistency with the Constitution is rendered with the provisional application of the provisions, if the legal provisions are not effective, but have the effect of the suspended provision, the legal provisions are retroactively null and void at the time when the decision of inconsistency with the Constitution becomes final and conclusive (see, e.g., Supreme Court Decision 2018Du49154, Jan. 30, 2020). In this case, the retroactive effect of the legal provisions becomes final and conclusive as well as the cases where the former legal provisions are unconstitutional at the time when the decision of inconsistency with the Constitution becomes final and conclusive.

B) In the instant case where the decision of inconsistency with the Constitution of the Republic of Korea is the pertinent case, if the amendment legislation of the legal provisions of the instant case was made or the amendment legislation was not made even after the deadline for the amendment, the provision of the amendment legislation of the instant legal provisions, which had been suspended, is retroactively applied at the time of the instant refusal disposition, or the provision of the instant legal provisions retroactively becomes retroactively null and void at the time of the instant refusal disposition. Accordingly, when the period of the amendment or the amendment amendment has expired, the instant refusal disposition, including the legal provisions of the instant case, which is the ground for the disposition of Article 5 subparagraph 2 of the former Act on Activity of Persons with Disabilities, should be revoked

However, as seen earlier, the time before the amendment of the Constitutional Court's ruling to suspend the application of the legal provisions of this case has been made and the improvement time has passed (hereinafter referred to as the "time prior to the time of legislation and the improvement time of legislation"), the determination at this point is a problem.

3) Whether the court can render a revocation judgment against the instant refusal disposition even before the time of the improvement legislation and the improvement legislation

A) Even if there was no deadline for the improvement of the provisions under the unconstitutionality decision, and the improvement of the provisions under the unconstitutionality decision has not been enacted or amended, the application of the suspended provisions under the unconstitutionality decision has already been suspended due to the validity of the unconstitutionality decision itself at that time without waiting for the improvement of the provisions and the enactment or amendment of the unconstitutionality decision. Therefore, in a case where the application of the provisions under the unconstitutionality decision has been suspended due to the suspension of the application of the provisions under the unconstitutionality decision, the administrative agency should not actively apply the unconstitutionality of the provisions under the unconstitutionality decision even before the time of the improvement and improvement of the provisions under the unconstitutionality decision, so the unconstitutionality of the provisions under the unconstitutionality decision should not be applied as the grounds for the unconstitutionality of the unconstitutionality decision

In addition, the court's decision to revoke the above defective dispositions at the time prior to the time of the improvement legislation and the improvement legislation is not directly sentenced to the administrative agency's decision on the performance of obligations, so long as the court's decision to revoke the above defective dispositions is not directly ordered to the administrative agency, it is merely a practical implementation of the purpose of the suspension order by actively removing the application of the suspended provisions, and it cannot be said that the suspended provision is applied actively. Therefore, even if prior to the time of the improvement legislation and the improvement legislation, such cancellation ruling should be allowed.

B) As seen earlier, the retroactive effect of the decision of inconsistency with the Constitution on the instant case is also against the instant case, and so long as the decision of inconsistency with the Constitution is rendered to the effect that the instant legal provision has become final and conclusive as of the time of the instant refusal disposition or has not been replaced with the improvement legislative provision, the relevant legal provision ought to be deemed as having already been suspended. Accordingly, the instant refusal disposition that applied the legal provision as the ground for suspension of its application at the time of the disposition is unlawful since it was erroneous at the present point of time as it violated the suspension of its application.

4) Sub-determination

Therefore, the rejection disposition of this case under Article 5 (2) of the former Act on Activity of Persons with Disabilities is unlawful.

D. Sub-determination

Ultimately, the rejection disposition of this case, which is made on the grounds of Article 5 (2) and (3) of the former Act on Activity of Persons with Disabilities, should be revoked as illegal.11)

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges

The presiding judge, Park Jong-chul

Judges Kim Gin-young

Judge Lee Young-young

Note tin

1) Article 4 of the former Enforcement Decree of the Act on Activity of Persons with Disabilities stipulates that “where a person is admitted to a livelihood security facility under Article 32 of the National Basic Living Security Act” shall take precedence over others and add “other cases recognized by the Minister of Health and Welfare” under subparagraph 4.

2) Supreme Court Decision 2014Du44946 Decided October 27, 2016 provides that “Cases prescribed by Presidential Decree, such as temporary failure to meet the registration standards, etc.” under the Act. In cases where Presidential Decree provides that “where the period of falling short of the registration standards does not exceed 90 days due to the death, disappearance, or retirement of a person who has the technical ability under attached Table 8,” the content of the said Act is interpreted as “where a temporary failure to meet the registration standards, such as “where the period of falling short of the registration standards, due to the death, disappearance, or retirement of a technical expert, does not exceed 90 days”.

3) Even if it is interpreted that “a similar amount of benefits” under Article 5 subparag. 3 of the former Act should be determined based on the entire activity support allowances and long-term care benefits, it is reasonable to regard activity support allowances and long-term care benefits as similar benefits in light of the overall contents thereof.

4) On the other hand, the defendant dismissed the plaintiff's application for an adjudication on the unconstitutionality of laws on the ground that the plaintiff's long-term care benefits (Visits medical care) correspond to other benefits similar to activity support allowances ( activity support allowances) and that the plaintiff also has no different opinion about this point. On the premise that this court also constitutes similar benefits, the purport of Article 5 subparagraph 3 of the former Act on Activity of Persons with Disabilities Article 5 of the former Act is to prevent overlapping benefits, and its legitimacy and rationality are recognized.

5) In the instant decision of inconsistency with the Constitution, “the elderly aged 65 years or older” under Article 2 subparag. 1 of the former Act on Long-Term Care Insurance for the Aged is not subject to adjudication, and is to be discussed on the premise of a person under

6) As seen earlier, the above provision must be discussed only when receiving benefits similar to those of activity support allowances regardless of the content of "as prescribed by Presidential Decree" in its interpretation, as it does not necessarily include "the case where receiving benefits similar to activity support allowances" is to be excluded. Thus, it should be discussed only when receiving benefits similar to activity support allowances.

7) In this context, considering the issue of the application of the indefinite concept of "a similar", it is difficult to uniformly determine the scope of "other benefits similar to those of activity support allowances", and in light of individual and specific facts, the above provision should be interpreted and applied in light of individual and specific facts, but at least, it can be conceptually or actually presented that there may exist "other benefits similar to activity support allowances" as seen below.

8) Meanwhile, Supreme Court Decision 2017Du30122 Decided December 28, 2017 rendered a provisional decision of inconsistency with the Constitution on the ground that the exemption from the imposition of charges is against the principle of equality for the portion of cash settlement among housing redevelopment projects from the imposition of charges. The Supreme Court rendered a provisional decision of inconsistency with the Constitution as to the legal provision that sets the exemption from the imposition of charges only for the portion of the housing redevelopment projects from the imposition of charges. The Supreme Court held that the above legal provision orders provisional application only for the portion that the exemption from

In light of the attitude of other Supreme Court precedents, the above Supreme Court's decision is understood as not explicitly using the expression of suspension of application due to contradictions in the expression of temporary application and suspension of application to â€˜unscheduled portion' (the first and second instances of the above Supreme Court' clearly stated the suspension of application) although it is understood that the portion of the above legal provision which does not specify the portion of cash liquidation as the object of regulation of improvement, which is subject to retroactively application of improvement legislation, is not subject to the exclusion of imposition of charges. In addition, considering that the portion of the above legal provision which does not specify the portion of cash liquidation as the object of regulation of improvement, it can be seen that prior to the improvement legislation, the portion which does not specify the portion of cash liquidation as the object of exclusion of imposition of charges is practically suspended.

However, the above Supreme Court ruling is clear that the imposition of charges on the ground that "after the ruling of inconsistency with the Constitution does not specify the portion of cash liquidation as subject to the exemption from the imposition of charges" should not be imposed on the same purport as that determined unconstitutional by the administrative agency without any further improvement legislation. Furthermore, since this conclusion is a natural matter of the rule of law to ensure the unity and consistency of the legal order, it cannot be deemed that the administrative agency has a duty to continue to apply the statutes that are unconstitutional, and there is no legal obstacle in the administrative agency to not impose the above charges."

This is understood to the effect that, even if there is no additional legislation that has been made after the decision of inconsistency with the Constitution to suspend its application, an administrative agency should not actively apply the suspended part of the legal provisions, and that there is no legal obstacle to the passive application of such part. Therefore, the above Supreme Court ruling also states a legal doctrine similar to the context of this decision.

9) In the same context, even if the court's decision to revoke the rejection disposition becomes final and conclusive, the administrative agency can not take active measures on the ground that the provisions of the suspended rejection disposition, which were applied until the time of improvement or improvement of the law, are immediately invalidated as in the decision of unconstitutionality. (If it is possible, the distinction between the suspension of application and the decision of unconstitutionality as a simple decision of unconstitutionality, is unreasonable).

10) This part of the decision of inconsistency with the Constitution does not necessarily mean the suspension of a trial. ② Under the interpretation of Article 42(1) of the Constitutional Court Act, the trial of the case in question is not suspended after the decision of inconsistency with the Constitution is made, and the decision of inconsistency with the Constitution can be seen as also included in the suspension of application. ③ In the case of a provisional decision of inconsistency with the Constitution, the Supreme Court has rendered a decision of inconsistency with the Constitution by applying the relevant legal provisions (see, e.g., Supreme Court Decision 2011Du16124, Nov. 15, 2012), and in the case of a simple decision of unconstitutionality, the decision of inconsistency with the Constitution is rendered by deeming that the legal provisions become null and void without any amendment. Thus, even in the case of a decision of inconsistency with the Constitution with the Constitution of the Republic of Korea which has the intermediate character, if exceptional circumstances such as the cancellation of the disposition to apply the suspended legal provisions prior to the amendment and the amendment of the law, the grounds can also be found.

11) The decision of this case is revoked at the time prior to the deadline for the improvement and legislation, so even if this decision becomes final and conclusive, the administrative agency can not take active benefit measures on the ground that the suspended part of the legal provisions of this case is no longer effective until the deadline for improvement or improvement of legislation. This decision is based on the suspension of the application of the above provisions pursuant to the decision of inconsistency with the Constitution of this case, which is also based on the premise of this decision. Thus, it is difficult for the administrative agency to withhold the benefit disposition until the deadline for improvement or improvement of legislation, even if it were to take benefit measures, it is difficult to view that this decision goes against the binding force of this decision.

On the other hand, when "after the legislative deadline for improvement or improvement has expired," as seen earlier, the status of the amendment or invalidation of the provisions of the instant legal provisions as to the suspension of application becomes retroactively applied to the ruling of inconsistency with the Constitution (in the case of the instant case and concurrent cases, at the time of the instant case), according to the validity of the decision of inconsistency with the Constitution as seen earlier (see, e.g., Supreme Court Decisions 2018Du49154, Jan. 30, 2020; 2016Du47697, Jul. 11, 2018; 2008Du1885, Sept. 29, 201). Accordingly, the administrative agency should retroactively apply the improvement or invalidation of the provisions of the instant legal provisions to the status of the suspension of application.

However, even if the qualification for application for activity support allowances (or benefits following the improvement legislation) of the plaintiff or other disabled persons is granted retroactively to the time when the decision of inconsistency with the Constitution is made after the deadline for the improvement legislation or the improvement legislation, the actual activity support is impossible retroactively due to the nature of activity support allowances (action allowances, visiting bathing, visiting nursing, night protection), etc. Therefore, the substantial gap in the relief of rights should be minimized by the prompt improvement legislation of the "contincing part of the application" which is confirmed by this decision, especially by this decision.