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(영문) 대법원 1992. 12. 24. 선고 92누3335 판결
[보상금지급결정취소][공1993.2.15.(938),627]
Main Issues

A. Whether the decision of the Gwangju Democratization Movement Compensation Deliberation Committee on the application for compensation payment is an administrative disposition subject to revocation litigation (negative)

B. The nature of the right and lawsuit concerning the compensation, etc. to which the relevant persons and their bereaved family members have under the same law (=party's lawsuit) and the legal relationship concerning the payment thereof (=Korea)

C. In a case where a party who filed a revocation suit combines a party suit against the State or a public organization as a related claim pursuant to Article 10(2) of the Administrative Litigation Act, but the above revocation suit is inappropriate, whether the court shall regard it as a claim for modification and grant permission unless it changes the foundation of the claim (affirmative)

D. Standard for complying with the period of filing a party suit in a case where the revocation suit is allowed to be changed to a party suit after filing a revocation suit (=a revocation suit)

Summary of Judgment

A. The decision of the Deliberative Committee on Compensation for Persons Related to Gwangju Democratization Movement under the main sentence of Article 15 of the Act on the Compensation for Persons Related to Gwangju Democratization Movement is nothing more than a necessary element for filing a lawsuit concerning the payment of compensation. Thus, the decision of the Deliberative Committee cannot be deemed an administrative disposition subject to revocation litigation.

B. The right to the compensation, etc. that the person concerned and his/her bereaved family members have under the same law is different from the claim for compensation for infringement of property rights under Article 23(3) of the Constitution or the claim for compensation under the State Compensation Act, and thus, it is a right under public law, which is recognized specifically by law. Therefore, the lawsuit related thereto shall be based on the party litigation under Article 3(2) of the Administrative Litigation Act, and the subject of legal relations related to the payment of compensation, etc. is the Republic

C. In a case where the party who filed a revocation lawsuit, etc. combines a party lawsuit against the State or a public organization to which the affairs related to the pertinent disposition, etc. belongs as a related claim pursuant to Article 10(2) of the Administrative Litigation Act, if the said revocation lawsuit, etc. is unlawful, it is reasonable to deem that the party had the intent to revise the lawsuit pursuant to Article 21(1) of the said Act as a joint claim of the said party lawsuit, and in such a case, unless there is any change in the foundation of the claim, the court shall not dismiss the initial claim until the joined claim is unlawful, but it is reasonable to accept it as having

D. In a case where a revocation suit was filed and later changed into a party’s lawsuit, it shall be deemed that a party’s lawsuit was filed from the beginning in accordance with Articles 21(4) and 14(4) of the Administrative Litigation Act. As such, in a case where a party’s lawsuit was filed within a legitimate period, the period for filing the lawsuit shall be deemed to have

[Reference Provisions]

(a) Articles 2 and 19 of the Administrative Litigation Act, Article 15 of the Act on the Compensation, etc. for Persons Related to Gwangju Democratization Movement, Article 5 of the same Act, Article 27 of the Administrative Litigation Act [General] (c) Articles 10, 14, and 21 of the same Act;

Reference Cases

A. Supreme Court Decision 92Nu2547 delivered on December 24, 1992

Plaintiff-Appellee

Plaintiff

Defendant-Appellant

Gwangju Democratization Movement-Related Persons Compensation Deliberation Committee and one other

Judgment of the lower court

Gwangju High Court Decision 91Gu161 delivered on February 13, 1992

Text

1. Of the judgment below, the part regarding the Plaintiff’s Compensation Deliberation Committee for the Persons Related to Defendant Gwangju Democratization Movement is reversed, and the Plaintiff’s lawsuit as to this part is dismissed. The Plaintiff’s total costs of lawsuit against the above Defendant

2. The appeal by Defendant Republic of Korea is dismissed, and the costs of appeal are assessed against the above Defendant.

Reasons

1. We examine the grounds of appeal by Defendant Gwangju Democratization Movement-Related Persons.

On the other hand, as seen earlier, the Defendant Compensation Deliberation Committee’s decision on the payment of the instant compensation, which the Plaintiff argued against the subject matter of revocation litigation, is merely an ex officio requirement for filing a party litigation and is not an administrative disposition subject to appeal litigation, and thus, the Plaintiff’s claim against the same Defendant should be deemed unlawful. However, the lower court erred by misapprehending the legal doctrine on administrative disposition, and thus, should not dismiss the reversal without any need to examine the grounds of appeal.

2. We examine Defendant Republic of Korea’s grounds for appeal.

(1) As to the third ground for appeal

The Gwangju Democratization Movement Compensation Act (hereinafter referred to as the "Mining Compensation Act") shall have a Compensation Deliberation Committee for Persons Related to Gwangju Democratization Movement (hereinafter referred to as the "Compensation Deliberation Committee") for the purpose of restoring honor and substantial compensation for persons killed or missing or wounded in relation to Gwangju Democratization Movement (hereinafter referred to as "related persons") and their bereaved family members (Article 1), and shall have the Deliberative Committee for Compensation for Persons Related to Gwangju Democratization Movement (hereinafter referred to as the "Compensation Deliberation Committee") to examine and determine whether relevant persons and their bereaved family members are related persons or their bereaved family members, and to perform the functions of deliberation, determination, payment, etc. of compensation, etc. for related persons (Article 4), medical allowances, living allowances, related persons, etc. as prescribed by the same Act shall be paid (Article 5, 6, and 7), and related persons, etc. shall apply for the payment of compensation, etc. within 30 days from the date of entry into force of the same Act, and if the Compensation Deliberation Committee is determined within 90 days from the date of receipt of the above application for payment and the amount of compensation, etc.

As seen in each of the above provisions, the Gwangju Compensation Act declares the principle of compensation for persons who suffered damage to their life or body in relation to Gwangju Democratization movement, establishes the Compensation Deliberation Committee as a procedure for the payment of compensation, etc. after determining the subject and scope of compensation, and makes the relevant committee deliberate and decide on whether to pay compensation and the amount of payment at the request of the relevant persons, etc. In principle, the lawsuit for the payment of compensation, etc. is instituted after the above decision was received. However, if the payment decision is not made within a certain period after the above decision was made, the lawsuit for the payment of compensation, etc. can be brought immediately after the above decision was made, it cannot be seen that the application for payment must be made as an essential requirement for the decision of the Compensation Deliberation Committee. Even if examining other provisions of the same Act, it cannot be seen that there is a provision that can bring an administrative appeal against the decision of the Compensation Deliberation Committee on the compensation, or that a lawsuit seeking the cancellation thereof is expected, etc. by dissatisfied with the decision. Thus, the decision of the Compensation Deliberation Committee is merely an administrative disposition subject to appeal.

Therefore, a person who applies for the payment of compensation money, etc. pursuant to the above law cannot file an appeal suit seeking the cancellation, etc. on the ground of its illegality against the decision of the Compensation Deliberation Committee, so the above lawsuit on the payment of compensation money is bound to be a form of lawsuit other than an appeal litigation. Accordingly, the right to the compensation, etc. held by the relevant persons and their bereaved family members pursuant to the Gwangju Compensation Act is different from that on the claim for compensation for infringement of property rights pursuant to Article 23 (3) of the Constitution or the claim for compensation pursuant to the State Compensation Act, which is recognized as a right under public law, which is specifically recognized by the same Act. Therefore, the lawsuit related thereto shall be based on the party litigation under Article 3

Therefore, the court below is just in holding that the plaintiff can file a party suit, regardless of the existence of the decision of the Compensation Deliberation Committee on the payment of compensation, and there is no error in the misapprehension of legal principles as to the party suit.

The issue is that the Gwangju Compensation Act, in principle, adopts the principle of administrative review that is recognized in the appeal litigation by allowing citizens to file a lawsuit after going through the decision of the Compensation Deliberation Committee on the payment of compensation. However, apart from whether the decision of the Compensation Deliberation Committee which is originally implemented on citizens' application can be seen as a disposition, it cannot be viewed as an administrative appeal. There is no reason to discuss.

(2) As to the fourth ground for appeal

According to the reasoning of the judgment below, the court below determined that the Gwangju Compensation Act was established for the purpose of restoring honor to the persons related to the Gwangju Democratization and their bereaved family members and compensating them practically (Article 1). The Government may provide the relevant persons with part of the financial resources (Article 7). In certain cases, the State may recover the whole or part of the compensation, etc. already paid (Article 17). The Government stipulates that the payment of compensation, etc. under the above Act may be subsidized in part (Article 21) and the Enforcement Decree of the above Act has been developed by Presidential Decree (Article 21). In light of the fact that the Act is enacted for the purpose of restoring honor to the persons related to the Gwangju Democratization Democratization Movement and its bereaved family members and thus, the legal entity related to the payment of compensation, etc. under the above Act can not be seen as the main body of the Committee and its chairperson, etc., which are merely the Seoul Special Metropolitan City, Metropolitan Cities, or State agencies

In light of the relevant laws and regulations, the above determination by the court below is just, and there is no error of law by misapprehending the legal principles on the subject of compensation in the Gwangju Compensation Act or the legal principles on the eligibility for defendant in the party suit.

In light of the fact that the Compensation Deliberation Committee is responsible for all affairs related to compensation, etc. as argued in the theory of the lawsuit, it is only an administrative agency, not the subject of rights in the party litigation, and its members are appointed or commissioned by the Prime Minister (Article 4 (3) of the same Act), it shall not be regarded as an agency belonging to the Gwangju Metropolitan City. The payment institution, such as compensation, etc. under Article 22 of the Enforcement Decree of the same Act cited in the debate, shall be interpreted as the performance by the head of Gwangju

There is no reason to discuss this issue.

(3) As to the second ground for appeal

Based on the premise that revocation litigation, etc. is recognized against the decision of the Compensation Deliberation Committee, the lower court determined that the Plaintiff’s initial revocation of the instant decision against the Defendant Compensation Deliberation Committee, while maintaining the aforementioned lawsuit, and subsequently joined the lawsuit seeking the payment of compensation, etc. to the Republic of Korea as the Defendant, thereby filing a joint lawsuit with the court in which the revocation lawsuit against a person other than the Defendant under Article 10(2) of the Administrative Litigation Act is pending, and thus, lawful.

The plaintiff's claim for consolidation of the lawsuit against the defendant Republic of Korea at the original court is different from that of the defendant's correction under Article 14 of the Administrative Litigation Act at the time when the defendant's original lawsuit was mistakenly designated, and therefore, it is not allowed on the premise that the above consolidation claim constitutes correction of the defendant is not allowed.

However, the consolidation of related claim lawsuits recognized under Article 10 (2) of the Administrative Litigation Act is based on the premise that the initial revocation lawsuit, etc. is legitimate. The decision of the Defendant Compensation Deliberation Committee cannot be deemed as an administrative disposition subject to appeal litigation, and thus, its claim for revocation is unlawful. However, in a case where the party who filed a revocation lawsuit, etc. combines a party lawsuit against the State or public organization to which the affairs related to the pertinent disposition, etc. belongs as a related claim under Article 10 (2) of the Administrative Litigation Act, if the above revocation lawsuit, etc. is unlawful, it is reasonable to deem that the party has an intention to revise the lawsuit under Article 21 (1) of the same Act as a joint claim of the above party lawsuit. In such a case, unless there is no change in the basis of the claim, the court shall not dismiss the original claim even the above combined claim on the ground that it is unlawful, but it is reasonable to accept the claim

According to the records, even if a revocation suit filed against the Plaintiff’s Compensation Deliberation Committee is unlawful, a claim against the Defendant’s Republic of Korea that joined the suit constitutes a modification of lawsuit, and it appears to the purport that the lower court permitted it, which is legitimate and lawful, within 60 days from the date when the original written decision was served with the original written decision. However, in the event that an appeal is filed within the same period but later changed into a party suit, then the lawsuit is deemed to have been filed from the beginning in accordance with Articles 21(4) and 14(4) of the Administrative Litigation Act. Thus, in the case of this case where the original appeal is filed within the lawful period, the Plaintiff shall be deemed to have complied with the period of filing the lawsuit

Ultimately, the court below erred in finding the plaintiff's claim against the Republic of Korea valid as a consolidation of related claims, but so long as the claim is valid as a modification of lawsuit and is deemed to observe the period for filing the lawsuit, the above illegality of the court below is not affected by the conclusion of the judgment. The argument is without merit.

(4) As to ground of appeal No. 1

According to the reasoning of the judgment below, on May 19, 1980, the court below acknowledged the following facts based on adopted evidence, that the plaintiff suffered injury from two parts, clothes, etc. which were cut off from martial law groups dispatched for the suppression of the Gwangju metropolitan democratization movement at the time, due to difficulty, etc. from the climatic stairs of the Kato Center located in Geumnam-ro 3 of Gwangju-gu at the time when the plaintiff was diagnosed as the wounded on May 18, 198, and reported additionally on May 18, 198, the plaintiff reported the injury to the wounded group under the initiative of the Determination Committee on the Degree of Injury of Persons Related to Gwangju metropolitan incident at the time of November 29 of the same year, and found that there was no such fact as the result of the diagnosis conducted by the Jeonnam University Hospital on September 18, 190 that the plaintiff rejected the parts of the 19th century due to climatic disorder at the time of the 19th century.

The above fact-finding and judgment of the court below are acceptable in comparison with the records of the evidence cooking process of the court below, and there is no violation of the rules of evidence against the rules of evidence. The arguments are without merit.

Therefore, since the part of the judgment of the court below against the defendant Compensation Deliberation Committee is sufficient to support the party members based on the records and established facts, this part of the judgment is reversed and the plaintiff's lawsuit is dismissed and the total costs of lawsuit are assessed against the losing party. The appeal by the defendant Republic of Korea is dismissed and the costs of appeal dismissed are assessed against the losing party. It is so decided as per Disposition with the assent

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심급 사건
-광주고등법원 1992.2.13.선고 91구161