[1] In a case where an adopted person, etc. did not complete the bereaved family registration before the enforcement date of the former Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Services to the State (amended on January 1, 1992), whether the adopted person, etc. may receive benefits, such as bereaved family compensation, upon filing a new application for the registration after the enforcement date of the said Act

[2] Requirements for justification of revocation of a beneficial administrative disposition

[3] The case holding that the public interest due to the disposition of revocation is much larger than the private disadvantage suffered by the disposition of revocation of the decision of revocation of the bereaved family registration

[1] The propriety of the administrative disposition shall be governed by the former Act on the Honorable Treatment of Persons of Distinguished Services to the State (amended by Act No. 5675 of Jan. 21, 199). The former Act on the Honorable Treatment and Support of Persons of Distinguished Services to the State (amended by Act No. 4457 of Dec. 27, 1991), which was revised by Act No. 291, which was revised by Act No. 971, Dec. 27, 1991; the former Act on the Honorable Treatment and Support of Persons of Distinguished Services to the State (amended by Act No. 4457 of Dec. 27, 1991). Since the former Act on the Honorable Treatment of Persons of Distinguished Services to the State (amended by Act No. 5675 of Jan. 27, 199) does not stipulate that the former Act on the Honorable Treatment of Persons of Distinguished Services to the State had already been amended by Act No. 197

[2] If the disposition of revocation is lawful after it was issued a beneficial administrative disposition that grants a citizen rights or benefits or that enables a citizen to be exempted from an obligation, it shall be deemed that the public interest needs to cancel the original disposition to be sufficient to justify disadvantage, such as the violation of the right to obtain benefits, the protection of trust and the stability of legal life, etc.

[3] The case holding that the public interest due to the disposition of revocation of the family registration is much larger than that of private disadvantages suffered by the disposition of revocation of the family registration, considering the fact that the amount of compensation to be paid to a person who is not eligible for protection under the former Act on the Honorable Treatment of and Support for Persons of Distinguished Services to the State (amended by Act No. 5675 of Jan. 21, 199) is contrary to the concept of justice

[1] Article 5 (2) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State (amended by Act No. 4457 of Dec. 27, 1991), Article 5 (2) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State (amended by Act No. 4457 of Dec. 27, 1991), Article 4 of the Addenda (amended by Act No. 4457 of Dec. 27, 1991), Articles 5 (2), 6, and 9 of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State (amended by Act No. 5675 of Jan. 21, 199) / [2] Articles 1 [3] and 5 (2) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State (amended by Act No. 4457 of Dec. 27, 1991)

[1] Constitutional Court en banc Order 93Hun-Ga14 delivered on July 21, 1995 (Hun-Ga11, 491) / [2] Supreme Court Decision 85Nu664 delivered on February 25, 1986 (Gong1986, 550) Supreme Court Decision 90Nu760 delivered on August 23, 1991 (Gong1991, 242), Supreme Court Decision 93Nu18969 delivered on March 22, 1994 (Gong194, 1348), Supreme Court Decision 93Nu2678 delivered on October 11, 1994 (Gong194, 298), Supreme Court Decision 90Nu753959 delivered on July 28, 1995 (Gong1994, 199, 195) 195Nu3925975 delivered on September 26, 1995)

A (Law Firm Maritime Name, Attorneys Jin-jin et al., Counsel for the defendant-appellant)

Head of Ulsan National Veterans Organization

Busan High Court Decision 2002Nu1786 delivered on August 23, 2002

Supreme Court Decision 2002Du8282 Delivered on January 13, 2003

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The revocation of the decision of bereaved family registration made by the defendant against the plaintiff as of September 28, 2001 shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings as stated in Gap evidence Nos. 1 through 3, 5, 6, and Eul evidence No. 1 through 3.

A. The plaintiff was adopted by C, the wife of the deceased deceased deceased during the Korean War, and on August 12, 1997, when C died, on October 13, 1997, reported to the defendant on the change of status of a person of distinguished service to the State under the former Act on the Honorable Treatment of and Support for Persons of Distinguished Service to the State (amended by Act No. 5675 of Jan. 21, 1999; hereinafter referred to as the "amended Honorable Treatment Act"). The defendant made a decision to register the plaintiff as his bereaved family member of the above B (hereinafter referred to as the "disposition No. 1") on the 27th of the same month, and the plaintiff received compensation or other benefits under the above Act.

B. On September 28, 2001, the defendant deleted "after the death of the deceased and the adopted child, the adopted child, and his wife after the death of the person who rendered distinguished services to the State" (hereinafter referred to as "the adopted child, etc.") within the scope of the two under the former Act on the Honorable Treatment of Persons of Distinguished Services to the State (amended by Act No. 4457 of Dec. 27, 1991) against the plaintiff, which was amended by Act No. 4457 of Dec. 27, 1991, and thus, the defendant deleted "the adopted child, etc. after the death of the person who rendered distinguished services to the State" (hereinafter referred to as "the above three-party child, etc.") from January 1, 1992 as the date of entry into force of the above Act. Thus, the defendant erred in interpreting the relevant provisions and issued a disposition revoking the registration of bereaved family for the reason that

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

First, since the former Honorable Treatment Act of Persons of Distinguished Service (amended by Act No. 4457 of Dec. 27, 191, hereinafter "the former Honorable Treatment Act") was revised to the Honorable Treatment Act of 192, it would be excluded from the scope of bereaved family members since January 1, 192. However, the purport of the above Honorable Treatment Act of 192 is not to exclude any ex post facto nursing who had already been qualified as bereaved family members from the bereaved family members under the previous provision, but to not treat the Plaintiff as the bereaved family members and protect the latter after the death of the deceased, and thus, it erred in its interpretation of the above provision that the Defendant would not be able to recognize that the Plaintiff would be in violation of the principle of no legislation governing persons of distinguished service to the State of distinguished Service to the State of this case since it violated the principle of no honorable Treatment and Treatment of Persons of Distinguished Service to the State of 192, and thus, it should be recognized that the Plaintiff would not have been able to be able to obtain the above treatment of the deceased family members.

B. Relevant statutes

Article 5 (Scope of Bereaved Family Members, etc.) (1) of the former Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 4457 of Dec. 27, 1991) of the Act is as follows.

1. The spouse;

2. The grandchildren of a child, a deceased noble person or a patriot;

3. to 7. omitted.

(2) In the case of children referred to in paragraph (1) 2, the adopted children of the person who has rendered distinguished service to the State who has married to the former shall be deemed to be children only one person, after the death of the person who has rendered distinguished service to the State who has no lineal descendant of the male, and the person who has rendered distinguished service to the State who has rendered distinguished service to the State who has no lineal descendant of the male (including the adopted adopted children

- The former Act on the Honorable Treatment of and Support for Persons of Distinguished Services to the State (amended by Act No. 4857, Dec. 31, 1994)

Article 5 (Scope of Bereaved Family Members) (1) The scope of bereaved family members or families of persons who have rendered distinguished services to the State shall be as follows:

1. The spouse;

2. A person who was not adopted among the grandchildren of his/her children, or of the patriotic veterans or patriotic veterans;

3. to 7. omitted.

(2) In the case of children as referred to in paragraph (1) 2, any adopted child by a person who has rendered distinguished services to the State having no lineal descendant shall be considered only one child.

Article 4 (Transitional Measures concerning Scope of Bereaved Family, etc.) The spouse and the person who has been registered as the father and the person under the previous provisions before this Act enters into force shall be deemed to have been registered under this Act.

- The former Act on the Honorable Treatment of and Support for Persons of Distinguished Services to the State (amended by Act No. 5675 of January 21, 199)

Article 5 (Scope of Bereaved Family Members) (1) The scope of bereaved family members or families of persons who have rendered distinguished services to the State shall be as follows:

1. The spouse;

2. The child (referring to the person who has not left his/her school among his/her children);

3. to 7. omitted.

(2) In cases of children referred to in paragraph (1) 2, both children shall be deemed children only one person adopted by a person who has rendered distinguished services to the State as his/her lineal descendant

Article 6 (Registration and Determination) (1) A person who intends to be a person of distinguished service to the State, his/her bereaved family or family, or a person who falls under Article 73-2 shall apply for registration to the Minister as prescribed by Presidential Decree

Article 9 (Time of Occurrence of Right to Receive Compensation) The right to receive compensation under this Act shall enter into force from the month of the day when the application for registration under Article 6 (1) was made.

Article 83 (Delegation and Entrustment of Authority) (1) The authority of the Minister under this Act may be partially delegated to the agency to which he belongs, as prescribed by Presidential Decree.

- Enforcement Decree of the Act on the Honourable Treatment

Article 102 (Delegation and Entrustment of Authority) (1) Pursuant to Article 83 (1) of the Act, the Minister shall delegate his authority concerning the following matters (including the authority concerning matters applied mutatis mutandis under Article 73-2 (3) of the Act) to the head of the competent office or the head of the branch office

1. Omitted;

2. Registration and decision as referred to in Article 6 of the Act;

3. Not more than the omission;

C. Facts of recognition

The following facts can be acknowledged in full view of the evidence mentioned above and the whole purport of the pleading in Gap evidence Nos. 4-1 to 3.

(i)The deceased B was killed in the Korean War 6.25 War with C, but was killed in the War without being able to remain in the war, and C was registered as a bereaved family member of a person of distinguished service to the State and received protection under the Honorable Treatment Act.

(2) The plaintiff, as a co-car of the deceased B, completed the adoption report on October 15, 1991 by adoption, and did not register as a bereaved family member of a person of distinguished service to the State under the Honorable Treatment Act. However, upon the death of the above C on August 12, 1997, the plaintiff reported the changes in the status to the defendant in order to be succeeded to the above C’s entitlement to compensation, and registered as a bereaved family member of a

(d) Markets:

(1) Judgment on the plaintiff's first argument

(A) The validity of the administrative disposition should be applied to the Act at the time of the disposition. The first disposition against the plaintiff should be applied to the Act at the time of the first disposition. Since the Act excluded from the bereaved family members of a person who has rendered distinguished services to the State is a transitional provision on the treatment of ex post facto adopted children, etc., and since the provision that excludes such adopted persons from the bereaved family members is maintained in the amended Honorable Treatment Act in 192, it is essential to interpret the Honorable Treatment Act in 192. Thus, the Honorable Treatment Act in 192 excludes post-adopted and testamented children included in the Act prior to the abolition of the amended Honorable Treatment Act in accordance with the purport of the Act, but it is difficult to establish a new provision on the treatment of bereaved family members to protect the rights of bereaved family members of a person who has already been registered as ex post facto adopted before the enforcement date of the Honorable Treatment Act in 192 and there is no need to establish a new provision on the treatment of bereaved family members of a person who has already been registered as an ex post facto adopted right to the Act 9.

(2) According to the above, since the plaintiff did not register as a bereaved family under the Honorable Treatment Act at the time of the enforcement of the 1992 Honorable Treatment Act, there is no room to apply Article 4 of the Addenda of this Act, and since Article 5 of the amended Honorable Treatment Act does not meet the eligibility to apply for the registration as a bereaved family under the amended Act, since the plaintiff did not have the right to receive compensation under the Honorable Treatment Act, the disposition of registration decision on October 27, 1997, which was made by the defendant, should be revoked because it is unlawful. Since the plaintiff does not fall under the bereaved family with the right to receive compensation under the amended Honorable Treatment Act, it is difficult to view that the defect was cured due to the defendant's defective registration decision, and therefore, the defendant's disposition of this case that was just by the defendant's illegal disposition is without merit,

(3) As above, interpreting the Honorable Treatment Act in 192 is contrary to the principle of retroactive legislation prohibition under the Constitution, and the beneficiary's entitlement to compensation under the Honorable Treatment Act is not premised on monetary contribution on the beneficiary's side, but is also in the character of social security that is given for the protection of the beneficiary's livelihood through the state compensation for special sacrifice such as harm of life or body for a long time, and it is a right granted only by a specific law. The entitlement to compensation accrued after satisfying the statutory requirements is specific legal right and also includes the property right that is guaranteed by Article 13 (2) of the Constitution. Thus, the entitlement to compensation under the Honorable Treatment Act shall not be infringed by retroactive legislation as one of the property rights protected by the above Constitution. On the other hand, if the requirements for entitlement to compensation are statutory, such as the procedure for the occurrence of compensation entitlement, etc., the right to receive compensation need not be viewed as the property right guaranteed by the Constitution before satisfying these statutory requirements (see, e.g., Constitutional Court en banc Decision 200Hun-Ga14, Jul. 214, 1995).

(2) Judgment on the second argument by the Plaintiff

(A) To apply the principle of trust protection to the acts of administrative agencies in general in administrative legal relations, first, administrative agencies should name the public opinion that is the subject of trust to individuals; second, there should be no reason attributable to the individuals who trust the subject of opinion list; third, administrative agencies should have trusted the opinion list and have engaged in any act corresponding thereto; fourth, when an administrative agency makes a disposition contrary to the above opinion list, it would result in an infringement on the interests of individuals who trusted the opinion list; fourth, when an administrative disposition satisfies these requirements, it is not likely to seriously undermine the public interest or legitimate interests of third parties, and thus, it is unlawful as an act contrary to the principle of trust protection (see Supreme Court Decision 98Du4061, May 8, 1998). Since the above facts acknowledged, the defendant's assertion that the above disposition did not have any reason corresponding to that of the plaintiff's bereaved family members under the Public Health and Welfare Act cannot be viewed as a violation of the defendant's good faith principle, and there is no reason to acknowledge that the plaintiff's remaining reasons for treatment of the plaintiff's family members cannot be viewed as the above.

(3) Judgment on the plaintiff's third assertion

If the disposition of revocation is lawful after it was issued a beneficial administrative disposition that grants rights and interests to the people or is exempted from duties, and the disposition of revocation is to be revoked again, it shall be deemed that the public interest needs to cancel the original disposition would be sufficient to justify disadvantages such as the right to obtain benefits and the protection of trust and the infringement of the stability of legal life, etc. (see Supreme Court Decision 85Nu664, Feb. 25, 1986). As seen above, the disposition of this case was immediately issued by the defendant 1, which is an administrative act with apparent and serious defects, and the payment of compensation to those who are not entitled to protection under the Honorable Treatment Act contradicts the concept of justice. Considering that the payment of compensation to those who are not entitled to protection under the Honorable Treatment Act contradicts the concept of justice, even if considering the disadvantages suffered by the plaintiff due to the disposition of this case, the plaintiff's assertion that the above disposition of this case is much greater than that of the public interest purpose in light of private disadvantages suffered by the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case, which is sought on the premise that the disposition of this case is unlawful, shall be dismissed as it appears to be any mother, and it is so decided as per Disposition.

Judges Suhion-up (Presiding Judge) The highest contribution-raising by judges;