[1] In a case where a person who has already acquired the status of an adopted child before the abolition of the adopted child system fails to register as a bereaved family before the enforcement date of the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State, which was amended by Act No. 4457 of December 27, 191, whether he/she

[2] Whether Article 5 (2) of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State and Article 4 of the Addenda of the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State are a provision

[3] Whether Article 5 (2) of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State and Article 4 of the Addenda of the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State recognize only the persons already registered as bereaved family except for the persons

[1] The purport of Article 5 (2) of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, amended by Act No. 4457 of Dec. 27, 1991, and Article 4 of the Addenda, as the Civil Act was repealed by Act No. 4199 of Jan. 13, 190, concerning the scope of the children included in the bereaved family and their families, shall be excluded from the scope of the ex post facto and testamentary children included in the previous scope in accordance with the purport of the amendment of the Civil Act. However, Article 4 of the Addenda to the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State shall be deemed as a transitional provision in order to protect the rights of those who had already been registered as the bereaved family due to ex post facto children before the enforcement date of the amended Act. Thus, even if a person who had already acquired the status of the adopted child before the abolition of the ex post facto adoption of the amended Act, it is no longer possible for a person of distinguished service to the State.

[2] Various entitlements, such as compensation under the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 4857 of Dec. 31, 1994), are recognized only by law, and cannot be deemed property rights guaranteed by the Constitution before satisfying the requirements for entitlements to compensation under the law, such as the procedure necessary for the creation of entitlements to compensation. In this case, the status of bereaved family members is merely the expected interest that can acquire entitlements, such as compensation, which is property rights. Furthermore, since the above law stipulates that entitlements to various honorable treatment and support under the Act shall be the requirements for the acquisition of entitlements to compensation, it is merely a loss of simple expectation interest even if the former and the latter are excluded from the scope of bereaved family after the registration. Therefore, Article 5(2) of the above Act and Article 4 of the Addenda do

[3] Even if the general ancestor and the adopted child were to be equally treated in accordance with the former status of the adopted child as an adopted child, various kinds of honorable treatment and support benefits under the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, and in particular, the need to promote the stabilization of livelihood and the improvement of welfare through such recognition should be considered to have a significant difference. Article 5(2) of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, amended by Act No. 4457 of Dec. 27, 191, reflects such difference in the Civil Act, and cannot be deemed as arbitrary. Since various entitlements, such as compensation under the Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State, are recognized only after meeting the requirements for acquiring entitlements under the Act, the status of the adopted child prior to registration, is merely having expected benefits for acquiring entitlements, whereas the registered ex post facto employee cannot be deemed unreasonable by the amendment of the former Act within the scope of the foregoing provision on the eligibility of the adopted.

[1] Article 5 (2) of the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 4857 of Dec. 31, 1994) and Article 4 of the Addenda (amended by Act No. 4857 of Dec. 27, 1991) / [2] Article 5 (2) of the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 4857 of Dec. 31, 1994) (see current Article 5 (2) of the Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State), Article 4 of the Addenda (amended by Act No. 4857 of Dec. 27, 1991), Article 23 of the Constitution / [3] Article 5 (2) of the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 4857 of Dec. 31, 1994)

[1] Supreme Court Decision 2003Du8340 decided Dec. 26, 2003 (Gong2004Sang, 246) / [2] Constitutional Court en banc Order 93Hun-Ga14 decided Jul. 21, 1995 (Hun-Ga11, 491) / [3] Constitutional Court en banc Order 2004Hun-Ba60 decided Apr. 26, 2007 (Hun-Ba127, 479)

Plaintiff (Attorney Yoon Jae-sik, Counsel for plaintiff-appellant)

The Head of Seoul Regional Veterans Administration

Seoul High Court Decision 2002Nu9690 delivered on June 24, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 5(2) of the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State prior to the amendment by Act No. 4457 of Dec. 27, 1991 provides that “The former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State prior to the amendment by Act No. 4457 of Dec. 27, 199 provides that “If a person of distinguished service to the State who has married has no lineal descendant who is a male, he shall be deemed to be a child only one person.” Article 5(2) of the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State since the amendment by Act No. 4199 of Jan. 13, 190, the Civil Act was amended by Act No. 4199 of Dec. 27, 199; Article 5(2) of the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State prior to the amendment by the former Act No. 2000 of the Family Act.

The court below's decision to the above purport is just, and there is no violation of the interpretation and application of Article 5 (2) of the amended Honorable Treatment Act and Article 4 of the Addenda as alleged in the ground of appeal.

2. Various entitlements, such as compensation under the Honorable Treatment Act, are recognized only by law, and cannot be deemed as property rights guaranteed by the Constitution until they meet the requirements for entitlements to compensation under the Act, such as procedures necessary for the creation of entitlements to compensation. In such a case, the status of bereaved family members is merely the expected interest to acquire entitlements, such as compensation, which is property rights (see, e.g., Constitutional Court Order 93Hun-Ga14, Jul. 21, 1995). Furthermore, the Honorable Treatment Act provides that entitlements to various honorable treatment and support under the Registration Act shall be the requirements for the acquisition of entitlements to compensation. Thus, even

Therefore, Article 5 (2) of the amended Honorable Treatment Act and Article 4 of the Addenda do not deprive the property rights of the ex post facto adopted persons, etc. who are not registered, by retroactive legislation.

3. In general, a child of a person who has rendered distinguished services to the State is placed in a position more unfavorable than that of a person who has rendered distinguished services to the State in terms of social and economic aspects, and in particular, it is expected that a person who has rendered distinguished services to the State would be faced with many difficulties in living if he/she was living together or was supported by the person who has rendered distinguished services to the State. However, in the case of an adopted child after the adoption, it is intended to perform only the role of family and inheritance in relation to the exercise of parental authority by a person who has rendered distinguished services to the State in the sense that he/she acquired the status of an adopted child after the adoption. There is no room for forming a protection, cultural relationship, or support relationship, etc. according to the exercise of parental authority by a person who has rendered distinguished services to the State. At the time of the adoption, there is no room to put his/her former status as an adopted child at a disadvantage than that of a person who has rendered distinguished services to the State. Therefore, even if the adopted child and the adopted child were equally treated in terms of various honor and special benefits, it should be considered unreasonable (see).

All kinds of entitlements, such as compensation under the Honorable Treatment Act, are recognized only by law, and beneficiaries acquire specific rights only when they meet the requirements for the acquisition of entitlements prescribed by the Act. Inasmuch as the registration under the Honorable Treatment Act is one of the requirements for the acquisition of entitlements, post-registration is merely a part of the expected interest for the acquisition of entitlements. On the other hand, the post-registration guardian has already acquired specific entitlements to compensation from the month in which the application for registration was filed. Considering the differences in such legal status, the need to protect the rights of those who have already been registered under the previous provisions compared to the pre-registered ex post facto survivors, and thus, it cannot be deemed that the legislators’ choice to maintain their status restricted only in the latter

Therefore, Article 5 (2) of the amended Honorable Treatment Act and Article 4 of the Addenda of the amended Honorable Treatment Act provide that the post-adopted child shall only maintain the post-registered status of the adopted child except for the scope of bereaved family members under the Honorable Treatment Act. Thus, it cannot be deemed that it is remarkably unfair or unfair beyond the reasonable scope of discretion, and thus, it does not contravene the principle

4. In light of the records, the decision of the court below is just in finding the fact that the plaintiff was registered as a bereaved family member under the former Military Security Compensation Act, and there is no error of law such as misconception of facts due to violation of the rules of evidence.

5. Examining the above legal principles and the decision of bereaved family registration subject to the Honorable Treatment Act in light of the fact that legitimacy is very important public administrative disposition, and the Plaintiff’s vested rights and trust infringed upon due to the disposition of this case, the court below is just in holding that the disposition of this case cannot be deemed as contrary to the principle of trust protection, and that the defect cannot be cured due to the lapse of the period. There is no violation of law such as misunderstanding of legal principles

6. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)