2015 Gohap 10698 Revocation of dismissal of application for payment of consolation money, etc.

A

The Support Committee for Investigation of Damage from Force Mobilization during the Time of the Counter-Japan and Victims, etc. of Force Mobilization;

November 19, 2015

January 21, 2016

1. The part concerning the claim for payment of money in the instant lawsuit shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The decision to dismiss an application for payment of consolation benefits made by the Defendant to the Plaintiff on February 26, 2015 is revoked. The Defendant shall pay 20 million won to the Plaintiff.

1. Case summary

On April 29, 2014, the Plaintiff filed an application with the Defendant for the payment of consolation money under Article 4 of the Special Act on Support for the Compulsory Mobilization Investigation and Mobilization Victims, etc. (hereinafter “Compulsory Mobilization Investigation Act”). On February 26, 2015, the Defendant: (a) on the ground that the father B of the Plaintiff was mobilized on a daily basis; (b) on February 26, 2015, the Plaintiff was forced to work at the workplace of Gyeonggi-do from February 1945; and (c) died on May 3, 1945, the Plaintiff was determined to dismiss the Plaintiff’s application for the payment of consolation money pursuant to Article 22 of the Compulsory Mobilization Investigation Act (hereinafter “instant disposition”). However, the Plaintiff filed an application for reexamination with the Defendant on April 15, 2015 for re-deliberation on the instant disposition on the ground that the Defendant did not reverse the Plaintiff’s new decision on June 25, 2015.

[Reasons for Recognition] Gap evidence Nos. 1, Eul evidence Nos. 1, 7, 8, and 12, the purport of the whole pleadings

2. Determination on the legitimacy of the part demanding payment of money

We examine ex officio the legitimacy of the part concerning the claim for payment of money in the lawsuit of this case.

The Administrative Litigation Act limits the types of lawsuits that can be filed against administrative agencies (see Articles 3 subparag. 1 and 4 of the same Act). Other than the types of lawsuits as above, the current law is not allowed. A form of lawsuits seeking the performance of obligations is not prescribed as the types of lawsuits that can be filed against administrative agencies under the current Administrative Litigation Act.

However, the Plaintiff claims against the Defendant, who is an administrative agency, to pay KRW 20,000,000 to the Plaintiff. Such a lawsuit constitutes a form of lawsuit seeking the fulfillment of obligations. Therefore, the said lawsuit is not allowed under the current law because it constitutes a lawsuit other than the types provided in the Administrative Litigation Act (see, e.g., Supreme Court Decision 97Nu3200, Sept. 30, 1997).

Therefore, the part concerning the claim for payment of money in the lawsuit of this case is unlawful.

3. Determination on the remainder of claims

According to Article 4 of the Compulsory Mobilization Investigation Act, in order to receive consolation money prescribed in the same Article, a person eligible to be recognized as a victim of compulsory mobilization in a foreign country falls under the "victim of compulsory mobilization in a foreign country". In addition, in order to be recognized as a "victim of compulsory mobilization in a foreign country" under Article 2 subparagraph 3 of the same Act, a person who died or was missing due to forced mobilization in a foreign country due to a soldier, military employee, labor employee, etc., or a person who was not a soldier, military employee, or worker, etc. who was mobilized in a foreign country, may not receive consolation money prescribed in Article 4 of the Compulsory Mobilization Investigation Act

However, in full view of the respective statements and the overall purport of arguments as to Gap evidence Nos. 1, 2, and 3, it may be recognized that Eul, the father of the plaintiff, was mobilized on February 1945 by Japan. However, the above evidence alone is insufficient to recognize the fact that the above Eul was mobilized to a "foreign country, not domestic," and it was forced to serve as a soldier, a civilian military employee, a worker, etc., and there is no other evidence to acknowledge this otherwise.

Therefore, the plaintiff cannot be deemed as a bereaved family member of a victim of forced mobilization who can receive consolation money under Article 4 of the Compulsory Mobilization Investigation Act. Therefore, the defendant's disposition that rejected the plaintiff's request for payment of consolation money is legitimate.

4. Conclusion

Therefore, the part of the claim for payment of money among the lawsuit 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.

The presiding judge, judges and vice-ranking

Judges Kim Yong-han

Judges Seo-chul

A person shall be appointed.

A person shall be appointed.