Plaintiff 1 and three others (Law Firm Busan, Attorneys Kim Jong-soo, Counsel for the plaintiff-appellant)

Persons of Special Military Service Compensation Deliberation Committee

August 19, 2011

1. The Defendant’s dismissal ruling on February 22, 201 against the Plaintiffs is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. After entering the Navy on October 22, 1973, the plaintiff 1 was unable to complete the 18th educational training course due to lack of diving capacity, and the plaintiff 1 was removed from the UNFCCC on October 14, 1976. After entering the Navy on April 1, 1974, the plaintiff 2 was unable to complete the 18th educational training course on August 30, 1975 and was dismissed from the 18th educational training course on August 30, 197, and the plaintiff 3 was unable to complete the 197th educational training course on September 27, 197 and was unable to complete the 197th educational training course on May 27, 197 due to lack of capacity to dismiss the plaintiff 2 from the 197th educational training course on May 27, 1978. The plaintiff 3 was unable to complete the 197th educational training course on July 19, 1978.

B. The Plaintiffs filed an application with the Defendant for the payment of compensation under the Act on the Compensation for Persons who performed Special Military Missions (hereinafter “Compensation Act”), on the ground that the Plaintiffs had received education and training for North Korea’s work, but on February 22, 2011, the Defendant rendered a decision to dismiss the Plaintiffs’ application on the ground that the Plaintiffs did not complete the education and training under Article 4(1)2 of the Enforcement Decree of the Compensation Act (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, each entry in Gap evidence 1 to 4 (including provisional number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) A deviation from the limitation of delegated legislation under Article 4(1)2 of the Enforcement Decree of the Compensation Act

Although Article 2(1)2 of the Compensation Act provides that a person who received education and training related to a special military mission who belongs to a military intelligence unit and received education and training related to such special military mission is eligible for compensation, Article 4(1)2 of the Enforcement Decree of the Compensation Act (hereinafter “instant provision”) provides that only “the person who completed education and training related to a special military mission” shall be eligible for compensation. Thus, the instant provision deviates from the limitation of the scope of delegation of the Compensation Act.

2) Violation of the principle of equality

Article 4(1)2 (hereinafter “former Enforcement Decree of the Compensation Act”) of the former Enforcement Decree of the Compensation Act (amended by Presidential Decree No. 22460, Oct. 27, 2010; hereinafter “former Enforcement Decree of the Compensation Act”) provides that “a person who has received the education and training related to special duties shall be deemed a person who performed a special military mission as a person who performed a special military mission.” According to the previous provision of this case, if a person receives the education and training related to the special mission, he/she may be paid compensation even if the education and training was not completed, and if the person who received the education and training related to the special mission but failed to complete the education and training (hereinafter “persons who completed the education and training”) would be paid compensation in accordance with the previous provision of this case, the Defendant did not pay compensation to the Plaintiffs who filed an application for compensation at the time when the previous provision of this case was applied without any justifiable reason, which dealt with the amendment of the former provision of this case as the grounds for the application for the payment of compensation.

3) Violation of the principle of trust protection.

The previous provision of this case provides that those who have not completed education and training shall be deemed to be persons who performed a special military mission who can receive compensation, thereby obtaining a trust in value of protection that they may receive compensation as persons who performed a special military mission and filing an application for compensation with the defendant based on the above trust, but the defendant subsequently rejected the application for compensation by the plaintiffs against the trust in value of protection of the plaintiffs pursuant to the revised provision of this case. This is also in violation of the principle of trust protection.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The amendment process, etc. of the instant provision

A) Before the amendment of the instant provision, the Defendant dismissed the application for payment of compensation to those who have not completed education and training courses on the ground that the Defendant did not complete the education and training course.

B) However, on June 19, 2007, the non-party, who was dismissed by the defendant on June 19, 2007, filed an administrative suit seeking revocation of the decision to dismiss the application for payment of compensation on August 22, 2007 by the Seoul Administrative Court Decision 2007Guhap32020, and on November 30, 2007, the above court rendered a decision to revoke the defendant's decision to dismiss the application for payment of compensation on the ground that " insofar as the period of education and training is not specified in the Compensation Act and the former Enforcement Decree of the Compensation Act, the non-party is deemed to be a person eligible for compensation regardless of whether the education and training was completed or not, as long as the non-party had received education and training related to the performance of special duties, the non-party should be deemed to be a person eligible for compensation regardless of whether the education and training was completed. The defendant appealed the appeal by Seoul High Court Decision 2008Du1426, Jun. 13, 2008.

C) Upon the confirmation of the relevant lawsuit, the Defendant, on May 25, 2010, decided to revise the former Enforcement Decree of the Compensation Act by deeming that the payment of compensation to those who have not completed education and training is contrary to the legislative intent of the Compensation Act, and subsequently amended the former Enforcement Decree of the Compensation Act on October 27, 2010 to the instant provision that only those who have completed education and training would be compensated, and subsequently, decided to dismiss all the applications for payment of compensation to those who have completed education and training for which the examination was reserved due to the pending lawsuit.

2) Status of treatment of those who have not completed education and training

A) At present, 1,154 persons who have not completed education and training are presumed to have a total of 1,154 persons. Among them, 37 persons who filed an application for payment of compensation prior to the amendment of the instant provision, and the Defendant dismissed all the applicants, and the specific status of the treatment is as follows.

The number of monthly personnel for the decision of rejection of the table contained in the main sentence, and the total number of 37 persons on May 2, 2007, including the non-party, on June 4, 2007, including the non-party, on February 22, 2011 (State 1) and May 5, 2011, including the number of May 1, 201, and 37 persons on August 2, 201.

(1) Plaintiff 1 applied for each payment of compensation to the Defendant on September 21, 2007; Plaintiff 2 on April 1, 2009; Plaintiff 3 on October 30, 2007; Plaintiff 4 on July 28, 2010.

B) Meanwhile, the budget required for the payment of compensation to those who have not completed the education and training is estimated to the extent of approximately 32.3 billion won per person (=28 million won per person x 1154).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 (including paper numbers), the purport of the whole pleadings

D. Determination

1) As to the assertion that the instant provision is invalid by deviating from the limit of delegated legislation

A) In determining whether a specific provision of the Presidential Decree enacted based on the delegation provision of the parent law violates the provisions of the parent law, if the provision and contents of the Presidential Decree clearly conflict with the parent law beyond the delegation limit of the parent law, the provisions of the Presidential Decree shall be declared null and void as a violation of the parent law. However, if it is not clear whether the provision of the Presidential Decree conflicts with the parent law, so it is possible to interpret that the provision is consistent with the parent law by comprehensively judging other provisions of the parent law and the legislative purport and history thereof, the declaration that the provision is null and void as a violation of the parent law should be made carefully (see, e.g., Supreme Court en banc Decision 97Nu9864, Dec. 16, 199).

B) In light of the aforementioned legal principles, the following circumstances are comprehensively considered regarding the scope of the aforementioned special military missions, namely, the provision regarding special military missions under Article 2(1)2 of the Enforcement Decree of the Compensation Act, which included the scope of the aforementioned special military missions, and the provision regarding the provision regarding special military missions under Article 4(2)1 of the same Decree provides that “as long as the provision regarding special military missions belongs to a military unit during the period prescribed by Presidential Decree from August 15, 1948 to December 31, 202, a person who received special military education and training or received education and training can be deemed as one who was recognized as a person who performed special military missions under Article 4(2)1 of the same Decree.” Thus, the aforementioned provision regarding the provision regarding special military missions requires that “the State should have received certain education and training related to the special military missions” or that “the State should have received certain education and training related to the special military missions to the extent that the provision regarding the provision regarding the provision regarding special military education and training under Article 2 of the Compensation Act should be interpreted as necessary.”

2) As to the assertion of violation of the principle of trust protection and equality

A) The reason why the principle of trust protection should be applied to the amendment of the law is that if a citizen has formed a certain legal status or living relationship with a specific act corresponding to the law in question, based on a reasonable and reasonable trust that the law will continue to exist in the future, and even if the state does not protect it at all, the citizen's trust in the law and order will collapse, and the future legal effect of the present act is not foreseeable, and the legal stability will be considerably impeded. However, such trust protection is not absolute or uniform in any living area, but can vary depending on freedom, rights, and interests related to each individual case, and it can be limited by taking into account the higher purpose of the public interest to be realized through a new law. Thus, in order to determine whether the principle of trust protection is violated, the public interest purpose to realize through a new law should be compared and balanced comprehensively on the one hand, on the one hand, other than the value of the infringed interest, the degree of infringement, the degree of damage caused by the trust, and the method of infringement on trust (see, e.g., Supreme Court en banc Decision 2009Du1393.

On the other hand, in cases where a provision of a statute that sets a certain standard is amended, unless otherwise specified in the transitional provision of the newly amended statute, the application may be limited in order to protect the people's trust in the existence of the statute prior to the amendment, such as where the competent administrative agency received an application and delayed processing, and where the standards prescribed in the statute are changed between them without justifiable grounds (see Supreme Court Decision 2003Du3550, Jul. 29, 2005, etc.).

B) In light of the above legal principles, the court below's determination that the above provision was not applied to the non-party 1 and the non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 3's non-party 2's non-party 3's non-party 2's non-party 3's non-party 3's non-party 3's non-party 2's.

3. Conclusion

Therefore, each claim of the plaintiffs in this case is justified and it is so decided as per Disposition by admitting it.

[Attachment Omission of Related Acts]

Judge Thai-sai (Presiding Judge)