[1] Legislative intent of Article 8 of the former Act on Support for Victims, etc. of Forced Mobilization before and after the Pacific War, and whether the authority to exclude consolation money, etc. is granted to the Support Committee for Victims of Forced Mobilization before and after the Pacific War because it was not determined as the bereaved family in certain cases (negative)

[2] The case holding that the court below erred in the misapprehension of legal principles on the ground that a person was not a bereaved family member on the ground that he was an ex post facto donation, in case where the ex post facto donation of a victim of forced mobilization abroad before and after the Pacific War applied for the payment of consolation benefits under Article 4 of the former Act on Support for the Victims, etc. of Forced Mobilization

[1] In full view of Articles 1 and 3 of the former Act on Support for Victims of Forced Mobilization, etc. before and after the Pacific War (repealed by Article 6 of the Addenda to the Special Act on Support for Forced Mobilization, etc., Act No. 10143, Mar. 22, 2010), the purport of Article 8 of the same Act requires the Support Committee to deliberate on and determine whether a person is a victim of forced mobilization before and after the Pacific War as a bereaved family member and constitutes a victim of forced mobilization and bereaved family member. The purport of Article 8 of the same Act is that the above Act requires the Support Committee to deliberate on and determine whether the person who applied for the payment of consolation benefits falls under the spouse and children of the victim of forced mobilization, parents, grandchildren, brothers and sisters, and siblings of the victim of forced mobilization, and whether the applicant obtained priority prior to the application, and it is not deemed that the applicant is not entitled to receive consolation benefits before and after the Pacific War, but does not appear to be entitled to be a victim of forced mobilization before and after the war.

[2] In a case where: (a) the ex post facto relief of the victims of forced mobilization abroad before and after the Pacific War applied for the payment of consolation money under Article 4 of the former Act on Support for the Victims, etc. of Forced Mobilization in Foreign Countries before and after the Pacific War (repealed by Article 6 of the Addenda of the Special Act on Support for the Investigation of Forced Mobilization into Force during the Pacific War, Act No. 10143, Mar. 22, 2010); (b) the ex post facto relief came to have the status of punishment from the time of adoption pursuant to Article 772 of the Civil Act; and (c) on the ground that the ex post facto relief was made, the court held that the judgment below erred by misapprehending the legal principles on the scope of bereaved family members, which held that it does not constitute the bereaved family members under Article 3 of the former Act on Support for the Victims, etc. of Forced Mobilization in Foreign Countries before and after the Pacific War

[1] Article 1 (see current Article 2 subparag. 3 subparag. 1) of the former Act on Assistance to the Investigation into Force into Force by War Victims, etc. (see current Article 3 subparag. 2 of the Special Act on Assistance to the Investigation into Force Force Forced Mobilization Victims, etc.) (see current Article 4 subparag. 1 of the Act on Assistance to the Investigation into Force Forced Mobilization Victims, current Article 2 subparag. 3 subparag. 1 of the Special Act on Assistance to the Investigation into Forced Mobilization of War Victims, etc. (see current Article 3 subparag. 2 of the Special Act on Assistance to the Investigation into Forced Mobilization of War Victims, current Article 4 subparag. 1 of the Act on Assistance to the Investigation into Force Forced Mobilization of War Victims, etc.) and Article 3 subparag. 2 of the former Special Act on Assistance to the Investigation into Forced Mobilization of War Victims, etc. (see current Article 3 subparag. 1 of the Special Act on Assistance to the Investigation into Force Forced Mobilization of War Victims, etc.)

Plaintiff

Support Committee for the compulsory mobilization investigation during the period of Japanese resistance, which is a litigation of the Committee to Support Overseas Mobilization Victims before and after the Pacific War, and the victims of overseas mobilization, etc.

Seoul High Court Decision 2009Nu39362 decided June 17, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Article 1 of the Act on Support for Victims, etc. of Forced Mobilization before and after the Pacific War (repealed by Article 6 of the Addenda to the Special Act on Support for Forced Mobilization during the Pacific War, Act No. 10143, Mar. 22, 2010; hereinafter “victim Support Act”) provides that with respect to the Agreement on the Settlement of Issues concerning Property and Claims and Economic Cooperation between the Republic of Korea and Japan before and after the Pacific War and its bereaved family members, the State shall provide compensation, etc. to the victims of forced mobilization abroad and their bereaved family members before and after the Pacific War, thereby recovering their pain and contributing to national unity. Article 3 of the same Act provides that the term “bereaved family members” in this Act means those who were the victims of forced mobilization, etc. and relatives, who were bereaved family members and were determined to be bereaved family members pursuant to Article 8 subparag. 1 (1) and who were determined to be the bereaved family members by blood relatives and their bereaved family members, and the order of priority between the victims and the bereaved family members under Article 4(1).

In full view of these provisions, Article 8 of the Victims Support Act provides that the defendant shall deliberate and decide on whether he/she is a forced mobilization victim and a bereaved family member. The purport of this Act is that the person applying for payment of consolation benefits by asserting that he/she is a bereaved family member under the above Act is the spouse and children of a forced mobilization victim under Article 3 of the above Act, parents, grandchildren, brothers and sisters, and whether he/she is a person with priority prior to the applicant, and it seems that the applicant determined whether he/she is a bereaved family member to be a bereaved family member to be paid consolation benefits. It does not appear that even in the case of a relative with the above above, the applicant did not decide whether he/she is a bereaved family member under Article 3 of the

According to the reasoning of the first instance judgment cited by the court below, the court below acknowledged that the plaintiff adopted the non-party 2, who is the father of the non-party 1 on January 8, 1973, and that the plaintiff applied for the payment of consolation benefits under Article 4 of the Victim Support Act, the court below dismissed the plaintiff's application for the payment of consolation benefits, etc. on the ground that although the defendant decided non-party 1 as a victim of forced mobilization under Article 2 of the Victim Support Act while the plaintiff merely decided the non-party 1 as a victim of forced mobilization under Article 2 of the Victim Support Act, the plaintiff is merely a post adoption of the non-party 1 and does not constitute a bereaved family member under Article 3 of the Victim Support Act. The court below determined that the post adoption of the so-called post adoption does not fall under the "peachment,"

However, in light of the above legal principles, as long as the plaintiff was adopted by Nonparty 2, the relatives and degrees between the adopted child, adoptive parents, blood relatives, and relatives by marriage, from the time of adoption pursuant to Article 772 of the Civil Act, which provides that the adoption shall be deemed to be the same as that of the child born during marriage, and the defendant did not decide the plaintiff as the bereaved family member under Article 3 of the above Act on the ground that he was ex post facto donation, and thus, it cannot be excluded from the subject of payment of consolation money, etc. Therefore, the court below erred by misapprehending the legal principles on the scope of bereaved family members under Article 3 of the Victim Support Act, which affected the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)