(영문) 서울행정법원 2016.8.18. 선고 2016구합58581 판결

On March 26, 2015, the Defendant revoked the disposition of rejection of the payment of consolation benefits, etc. against the Plaintiff (On the other hand, the Plaintiff entered “Plaintiff” in the complaint on May 7, 2015 only with the Plaintiff himself/herself and affixed the Plaintiff’s seal, and then filed a lawsuit on May 27, 2015 with the Plaintiff’s letter of appointment and the application for appointment of the parties that the Plaintiff shall select the Plaintiff as the designated party. However, the execution of the lawsuit by the appointed party is allowed only where the appointed party is selected from the beginning of the lawsuit by selecting the appointed party from among the designated parties of the lawsuit, or the third party is not allowed to participate in the lawsuit (see, e.g., Supreme Court Decision 80Da885, Jul. 8, 1980; 2005Da165, Feb. 16, 2015).

Reasons

1. Details of the disposition;

A. On June 28, 2014, the Plaintiff filed an application for the payment of the outstanding amount under the Special Act on the Investigation of Forced Mobilization during the Period of Counter-Japan and the Support for Victims, etc. of Forced Mobilization (hereinafter “Committee”) with respect to the outstanding amount that the deceased was forced to be mobilized on a daily basis through the Young-si Market through the investigation into damage by force during the Counter-Japanese War and the Support Committee for Victims, etc. of Forced Mobilization by Foreign Forced Mobilization (hereinafter “the Committee”).

B. On March 26, 2015, the commission decided to reject the Plaintiff’s application for the payment of the above outstanding amount pursuant to Article 22 of the Compulsory Mobilization Investigation Act on the ground that “the deceased was forced to mobilization by day by day, from June 1943 to October 1945, it may be acknowledged that he was forced to work as a labor holder belonging to scoo-gu in the construction site of the Russcoodo and the airfield located in the Japanese Hokikdo, and that he was forced to return to him, but it does not constitute a victim of the outstanding amount under Article 2 of the Compulsory Mobilization Investigation Act because the document related to the outstanding amount is not verified (hereinafter “instant disposition”).

C. Meanwhile, as of the date of the closing of argument in the instant case, the term of existence of the commission under Article 19(1) of the Compulsory Mobilization Investigation Act expired, and accordingly, the Defendant succeeded to the administrative affairs under the jurisdiction of the commission at the time the term expires.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1, 2-2, Eul evidence 1-1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The commission recognized the fact that the deceased forced mobilization under the Japanese colonial rule that he had forced labor, but did not confirm the document related to the outstanding amount, and thus rejected the Plaintiff’s application for the payment of the outstanding amount. However, the instant disposition that rejected the application for the payment of the outstanding amount on the ground that the documents were not confirmed. However, from June 1943 to October 1945, the deceased was the end of the Pacific War, which was forced by force, and was the time immediately before the Pacific War was lost, and it was highly probable that the labor cost was not provided to the workers who were mobilized by the United States. In addition, if the deceased was forced to be forced to work at that time, it should be deemed that the labor cost was not paid as a matter of course. Accordingly, the Defendant’s rejection of the application for the payment of the unpaid amount on the ground that the documents that did not have been found was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 2 subparag. 5 of the Compulsory Mobilization Investigation Act provides that "victims of the outstanding amount" shall be paid to a person who was unable to receive wages, various allowances, solatium, or relief fees (the Act refers to "amount of the outstanding amount") that could have been paid to a Japanese company, etc. in return for the forced mobilization of the outstanding amount abroad from April 1, 1938 to August 15, 1945 by force from military personnel, civilian employees, labor personnel, etc. to a foreign country, and labor personnel, etc., and the Commission shall apply for the payment of the outstanding amount in writing to the Commission pursuant to Article 8 subparag. 6 of the same Act. Article 5(1) of the same Act provides that the State shall apply for the payment of the outstanding amount by converting the outstanding amount that a victim of the outstanding amount or his/her bereaved family member could have been paid to a Japanese company, etc. into KRW 2,000 in the currency of the Republic of Korea (see Article 27(1) of the same Act).

In addition, Article 24 (1) 5 of the Enforcement Decree of the same Act provides that a person who intends to apply for the payment of the outstanding amount shall submit to the above Council a written application along with evidentiary materials verifying that he/she is a victim of the outstanding amount.

According to the provisions of the aforementioned statutes, in order for the Plaintiff, a bereaved family member of the deceased, to receive the outstanding amount under the Force Mobilization Investigation Act, there should be proof that the deceased was forced to mobilize abroad to his/her labor personnel, etc. based on the relevant documents or specifications prepared by Japan, etc., and then failed to receive the outstanding amount from Japan or Japanese companies, etc., and the burden of proof should be deemed to be the Plaintiff seeking the payment of the outstanding amount.

However, there is no evidence to prove that the deceased was unable to receive the outstanding amount from Japan or Japanese companies, etc. after forced mobilization of the deceased to foreign countries due to his/her labor workers, etc., and the circumstance asserted by the plaintiff alone cannot be acknowledged without any evidence. Thus, it is difficult to deem that the plaintiff satisfied the requirements for receiving the outstanding amount under the Compulsory Mobilization Investigation Act, and the plaintiff's assertion that the outstanding amount should be paid to the plaintiff is without merit. Therefore, the disposition of this case which the plaintiff rejected the application for the payment of the outstanding amount is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.