(영문) 서울행정법원 2016.5.26. 선고 2015구합79215 판결

A. From May 1, 1943 to July 30, 1945, H (I) was forced to be mobilized as a civilian military employee belonging to a military unit located in Northbuk-do in Japan, and suffered from disability on the left-hand side. H died on July 27, 201 (hereinafter “H”).

B. The Appointed B’s wife, the Plaintiff (Appointed Party), and the Appointed Party C, D, E, F, and G are children of the Deceased (hereinafter the Plaintiff (Appointed Party) and the Appointeds together, and the Appointed Party (Appointed Party) are the Plaintiffs, and the Plaintiff (Appointed Party) is the Plaintiff’s “Plaintiff”.

C. On October 5, 2011, the Plaintiff filed an application for the payment of consolation money to the Plaintiffs, the bereaved family members of the deceased, pursuant to the Special Act on the Investigation into Force Forced Mobilization during the Time Limit and the Support for Victims of Forced Mobilization (hereinafter “Compulsory Mobilization Investigation Act”) on the ground that “the deceased was killed after he/she was injured during the forced mobilization period,” with the “Committee to Support the Support Committee for the Victims, etc. of Forced Mobilization (hereinafter “Committee”). On January 24, 2013, the Committee made a request for the payment of consolation money to the Plaintiffs, the bereaved family members of the deceased. From May 1, 1943 to July 30, 1945, the deceased was forced to be a civilian military employee belonging to the U.S. military unit located in the North Korean Dos in Japan, and it is recognized that the deceased was injured at the left time, and determined that the deceased was a victim of forced mobilization under Article 2 of the Forced Mobilization Investigation Act and Article 371(2)4 of the Enforcement Decree of the Act.

D. On July 17, 2015, the Plaintiff filed a claim for the payment of consolation money with the bereaved family’s representative. However, the Committee rejected the payment on the ground that “The extinctive prescription period of the right to claim the payment of consolation money is one year under Article 33(1) of the Forced Mobilization Investigation Act, and the right to claim the payment of consolation money has expired one year after the expiration of the extinctive prescription period from July 6, 2013, which became effective by serving a certified copy of the written decision

[Reasons for Recognition] Facts without dispute, Gap 1, 3 evidence, records of Nos. 1 to 4, and 6, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

Since the Plaintiffs were not legally served the original copy of the decision on payment by the commission, the extinctive prescription of the right to claim the payment of consolation benefits has not expired. Accordingly, the Defendant is obliged to pay each of the Plaintiffs.

3. Determination

A. Relevant statutes

Article 29 (Service of Written Decision and Review) (1) of the Compulsory Mobilization Investigation Act shall apply mutatis mutandis to the service of paragraph (1). (2) Article 33 (Service of Extinctive Prescription, etc.) (1) of the Civil Procedure Act shall terminate due to the completion of prescription if the right to receive consolation money and the outstanding amount are not exercised for one year from the date on which the original written decision is delivered to the applicant. Article 183 (Place of Service) (1) of the Civil Procedure Act (Service of Written Decision and Review) (1) of the Commission is to be served at the domicile, residence, place of business or office of the person to be served. Provided, That service to a legal representative may also be served at the principal's business office or office.

(1) Where the address, etc. of a party or the working place is unknown, or the service to be made in a foreign country is deemed unable to be in accordance with the provisions of Article 191 or to be ineffective, the presiding judge may order service by public notice, either ex officio or upon request of the party concerned

B. Obligation to pay consolation money

According to the above facts, the defendant is obligated to pay the plaintiffs the injury disability amounting to 428,571 won, except in extenuating circumstances.

C. Whether extinctive prescription of the right to claim consolation money expires

1) The Defendant asserts that the period of extinctive prescription of the right to claim payment of consolation benefits is one year pursuant to Article 33(1) of the Act, and that the extinctive prescription of the right to claim payment of consolation benefits has expired after the lapse of one year from July 6, 2013, which is the date when the original copy of the written decision to

2) Article 29, paragraphs (1) and (2) of the compulsory mobilization of force provides, “Where the commission has decided whether to pay consolation money, etc. under Article 28, it shall, without delay, serve a certified copy of the written decision with the reason specified. The provisions concerning service of the Civil Procedure Act shall apply mutatis mutandis to service under paragraph (1).” As to the service place, “service shall be made at the address, domicile, business place, or office (hereinafter referred to as “place, etc.”) of a person to be served.” The term “the address of a person to be served” refers to a place where a person is continuously residing for a long time and does not necessarily be limited to a resident registration address. “Where the address, etc. of a party or place of service cannot be known” as a requirement for service by public notice is not known or impossible due to such failure (see, e.g., Supreme Court Decision 97Nu17575, Jun. 12, 1998).

3) In full view of the relevant legal principles, the facts acknowledged earlier, and the following circumstances (absent to the evidence Nos. 2, 5, 7, 8, and 10) revealed through the overall purport of the pleadings, the original written decision on payment cannot be deemed as being legitimately served on the Plaintiff. Therefore, the right to claim the payment of consolation benefits cannot be deemed as extinguished upon the expiration of the extinctive prescription period. Accordingly, the Defendant’s assertion is rejected.

A) On October 5, 2011, the Plaintiff entered the applicant’s address in the application for the payment of consolation money as “J apartment 104 Dong 502, Changwon-si, Changwon-si, J apartment 104 Dong 502, and the address of the representative of the bereaved family (Plaintiff) who is attached thereto was also the same as that of the representative of the bereaved family (Plaintiff). However, the Plaintiff submitted a certified copy of resident registration as attached documents, and the domicile of the certified copy of resident registration was K in the Jeonju-si.

B) On January 29, 2013, the commission sent the original copy of the written decision of payment to 'Yong-gu K', a certified copy of the resident registration submitted by the Plaintiff, which is the domicile of the Plaintiff, but returned to 'director'. On February 7, 2013, the commission sent it to the same address as the Plaintiff was returned (this is recognized by the Defendant himself). The commission served the certified copy of the written decision of payment on June 21, 2013.

C) If the commission was not served as 'Ysan-gu K', which was the address of the Plaintiff’s resident registration, it should have been served as 'J apartment 104 Dong 502, which could easily be seen as another address of the Plaintiff’s, on the application form for the payment of consolation money, and should have been served as 'J apartment 104 Dong 502, which could be seen as another address of the Plaintiff’s. Furthermore, it should have been contacted with the Plaintiff’s telephone number stated in the application form for the payment of consolation money and confirmed the Plaintiff’s address. Nevertheless, the commission did not do so (On the other hand, according to the evidence evidence No. 9, it can be recognized that the Defendant contacted the Plaintiff’s telephone number four times from June 12, 2014 to June 18, 2014 and did not have been served. However, this cannot be deemed that the Defendant made efforts to identify the Plaintiff’s address before service by publication due to the circumstances that the Plaintiff had already served by publication by publication).

Therefore, it cannot be deemed impossible to serve a document because the Commission investigated the Plaintiff’s address, etc. or even if the Plaintiff’s address was removed from the company with due care as a good manager. Thus, service by publication of the original written decision on payment to the Plaintiff is illegal and invalid.

D) Otherwise, there is no evidence that the original copy of the decision on payment was served on the Plaintiffs.

4. Conclusion

The plaintiffs' claim of this case is justified.