(영문) 서울고등법원 2015.4.16. 선고 2014누49677 판결

The judgment of the court of first instance is revoked, and the decision of the court of first instance rendered on April 23, 2013 by the defendant to the plaintiff (appointed parties) and the appointed parties shall be revoked.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court’s explanation on the instant case is as stated in the judgment of the court of first instance except for the part modified under the following Paragraph (2). Thus, it is cited by Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. The modified part;

○○ The 7th page of the second instance judgment (appointed party) is changed to “Plaintiff (Appointed party; hereinafter “Plaintiff”).”

○ From 8th to 10th day of the first instance judgment, the fourth to 8th day of the first instance judgment shall be amended as follows.

(2) The deceased returned to the Republic of Korea after receiving the above special intelligence education, and worked in the dispatch team of the Ethical map. The instant disposition based on the premise that the deceased did not perform a special duty, is unlawful. Even if the deceased did not perform a special duty, it cannot be said that the need for the public interest to recover the compensation already paid is greater than the disadvantage that the plaintiffs suffered. Thus, the instant disposition to recover the full amount of the compensation paid is unlawful.

○ From 8th to 10th 2th eth eth eth eth eth eth eth eth eth e.

“1) If a citizen acquires a certain interest and right due to a certain administrative disposition, the administrative disposition to revoke the previous administrative disposition requires a public necessity to be revoked or defective in the administrative disposition to be revoked due to a separate administrative disposition deprived of the existing interest and rights of the person already acquired. Furthermore, even if there is a defect in the administrative disposition, the administrative disposition may be revoked only when it is strong to justify the disadvantage of the party to the public interest due to the necessity of the public interest and the infringement of trust protection and the stability of legal life, etc.

However, if the defect of the beneficial administrative disposition is attributable to the party’s act of abolition or other fraudulent means, the party could have discovered that the benefit from the disposition was illegally acquired, and thus, the party could not invoke the trust interest in the disposition, as well as even if the administrative agency did not consider it, it does not abuse its discretion, and in such a case, the party’s fact does not change merely because the party’s act of application by means of abolition or other fraudulent methods was conducted passive through a third party (see Supreme Court Decision 2011Du1870, Feb. 15, 2013).

2) First of all, considering the following circumstances, i.e., G, E, and F’s awareness of whether the deceased did not constitute a person who performed a special military mission and did not constitute a person who performed a special military mission, and the purport of the entire pleading, each letter of guarantee under the name of the deceased was stated that he/she performed a special military mission, although he/she could not know whether he/she had performed a military mission because he/she did not work together with the deceased, E and F stated that he/she did not have memory prepared the above letter of guarantee. ② The investigator of the defendant’s investigation conducted a false report as if he/she conducted a survey; ③ the preparation of documents related to the payment of the compensation and the application for the payment of compensation money was conducted mainly by G, who did not know about the special military mission performed by the deceased; ④ The plaintiffs did not know of the particulars of the performance of the special military mission, E, and the process of obtaining a high-level letter of convenience from the deceased; ④ The plaintiffs did not know of the fact that he/she received a bribe from G’s account under the name 20.

3) Next, in light of the following circumstances as to whether there is a need to revoke the instant disposition, the above facts acknowledged, Eul evidence No. 18, and the purport of the entire pleadings, the plaintiffs were admitted and used at least by participating in H and G misconduct, or by recognizing or forecasting H and G misconduct at least dolusium, and thus, the plaintiffs were admitted and used. Thus, even if the defendant did not compare the necessity of public interest to be revoked while rendering the instant disposition with the necessity of public interest, the right to obtain benefits, the right to protection of trust, and the infringement of the stability of legal life, etc., which the parties would suffer due to the revocation, and even if not, the abuse of discretionary power is not allowed. Accordingly, the plaintiff's assertion that there is no need to revoke the instant disposition is without merit.

A) Article 18(1) of the Act on the Compensation for Persons who performed Special Military missions provides that “Where a person who received compensation, etc. under this Act falls under any of the following subparagraphs, the State shall recover all or part of such compensation, etc.” and subparagraph 1 provides that “where the person who received the compensation, etc. falls under any of the following subparagraphs, the State shall recover the compensation, etc. by fraud or other improper means” and “where the compensation, etc. was paid by mistake or other improper means” under Article 18(1)2 of the Act on the Compensation for Persons who performed Special Military Missions, unlike the cases where the State takes a disposition to recover the portion erroneously paid from the party who received the compensation by fraud or other improper means pursuant to Article 18(1)1 of the Act on the Compensation for Persons who performed Special Military Missions, the State shall recover the compensation, etc., even if the applicant who received the compensation, by fraud or other improper means, would have suffered economic damage by the person who received the compensation

B) The Plaintiffs received KRW 111,238,300 on September 20, 2006, after receiving compensation of KRW 111,238,300 according to the instant compensation decision, and paid KRW 2,00,000 to G on September 20, 2006, which has passed one year after the date of the instant application. In light of the fact that the Plaintiffs paid KRW 500,000 to G with the auditor’s indication at the time of the investigation by the Defendant Han-Tech as well as not only a large amount of the amount paid by the Plaintiffs to G, the amount to be reduced may be deemed as compensation for G’s misconduct beyond the mere auditor’s indication as to what the instant application was intended

C) On behalf of the Deceased, C filed the instant application on July 2005, and at the time of the instant application, it does not seem that the Deceased was difficult to live and that his mind was mixed. The Selection C received from G the “written report on the performance of his/her duties” and “written guarantee of personal seal in the name of G, E, and F,” and then submitted it to the Defendant. At the latest, it is reasonable to deem that the Plaintiffs knew that the entry of the letter of personal seal guarantee prepared by G or E, etc., who did not have worked together with the Deceased and E, was inconsistent with the truth, at the time of confirming the details of the above special duty performance report and the content of each letter of personal seal guarantee.

○ Change from 10th to 11th of the first instance judgment to 10th of the 10th instance judgment.

① The purport of Article 17-2 of the Act on the Compensation for Persons of Special Military Missions, which considers that a judicial compromise is established when the applicant consented to the decision on the payment of compensation, is that if the applicant subsequently consented to the decision on the payment of compensation on the premise that the applicant had performed a special mission or had received education and training related thereto, the applicant cannot file a petition for a trial other than the retrial procedure even if there was a ground for invalidation or revocation under substantive law in the process of the payment of compensation or the consent of the applicant. It cannot be viewed that the Defendant prohibited the Defendant from taking the disposition of ex officio revocation of the decision on the payment of compensation even if there was an error in the performance of a special mission, which is the premise of the decision on the payment of compensation under Article 18 of the Act on the Compensation for Persons of Special Military Missions, or the existence of education and training related thereto, as alleged by the Plaintiffs. In light of Article 22 of the Enforcement Decree of the Act, the interpretation would inevitably entail the consent to the decision on the payment of compensation, and thus, the provisions of Article 18 of the Act on the Compensation for Persons of Special Military Missions were valid.

3. Conclusion

Therefore, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.