[1] Method of determining persons eligible for special military missions, such as compensation under the Act on the Compensation for Persons who performed Special Military missions, and the status of the applicant for special military missions before being recognized as persons who performed special military missions / Whether Article 4(1)2 of the Enforcement Decree of the Act on the Compensation for Persons who performed Special Military Missions that was amended by Presidential Decree No. 22460 on October 27, 2010 does not have any transitional provision to guarantee the expectation interest of the applicant for special military missions prior to the amendment of Article 4(1)2 of the Enforcement Decree of

[2] Where the provisions of the relevant Acts and subordinate statutes were amended before the filing of an application for compensation, the relevant Acts and subordinate statutes, which serve as the basis for determining whether to pay compensation / Where the administrative agency’s application for compensation is accepted and delays the treatment without justifiable grounds, whether a disposition made in accordance with the revised Acts and subordinate statutes and compensation standards is legitimate (negative) and whether “the treatment was delayed without justifiable grounds” is determined

[1] In light of the purport and contents of each provision of the Act on the Compensation for Persons of Special Military Missions (amended by Presidential Decree No. 22460, Oct. 27, 2010; hereinafter “former Enforcement Decree”) and the former Enforcement Decree of the Act on the Compensation for Persons of Special Military Missions (amended by Presidential Decree No. 22460, Oct. 27, 2010; hereinafter “former Enforcement Decree”), it cannot be deemed that the person eligible for the compensation under the Special Child Compensation Act has become final and conclusive solely on the basis of Article 2 of the Act and Articles 3 and 4 of the Enforcement Decree of the former Enforcement Decree of the Act on the Compensation for Persons of Special Military Services, which have made a special sacrifice for the State and his/her bereaved family members. Even if it is recognized as a person of special military missions after deliberation and resolution by the “the Compensation Deliberation Committee for Persons of Special Military Services,” the right to receive compensation under the Special Child Compensation Act cannot be deemed as a property right to be guaranteed prior to the amendment of the Enforcement Decree.

[2] Even in the case of an amendment of a law based on the ground of an administrative disposition, the application of an administrative disposition is limited to the protection of public trust in a case where the public trust in the existence of the statute prior to the amendment is recognized to be more protected than the public interest demand on the application of the amended statute, unless otherwise provided in the transitional provision.

Therefore, in a case where the provisions of the relevant Acts and subordinate statutes were amended after filing an application for compensation, the determination of whether to pay compensation should be made in accordance with the criteria prescribed by the amended Acts and subordinate statutes, which were enforced at the time of the relevant disposition. However, in a case where an administrative agency’s acceptance of application and delayed processing without justifiable grounds and thus changes in the relevant Acts and subordinate statutes and the compensation standards, the disposition made in accordance with the modified Acts and subordinate statutes and the compensation standards is unlawful. Here, “whether to delay processing without justifiable grounds” should be determined by examining, based on the statutory processing period or ordinary processing period, the specific circumstances or circumstances delayed the relevant disposition based on which the relevant disposition was delayed, and whether there is any motive or intent of the administrative agency seeking

[1] Article 2(1)2 and (2) of the Act on the Compensation for Persons who performed Special Military Missions; Article 2, Articles 3, and 4 of the former Enforcement Decree of the Act on the Compensation for Persons who Performed Special Military Missions (amended by Presidential Decree No. 22460, Oct. 27, 2010); Article 4(1)2 of the Enforcement Decree of the Act on the Compensation for Persons who Performed Special Military Missions; Article 13(2) of the Constitution / [2] Article 1 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act; Article 4(2) of

[1] Supreme Court Decision 2008Du6554 decided Dec. 11, 2008 (Gong2009Sang, 36) / [2] Supreme Court Decision 2001Du274 decided Oct. 12, 2001 (Gong2001Ha, 2477) Supreme Court Decision 2004Du2974 decided Aug. 25, 2006 (Gong2525 decided Sept. 15, 2006)

Plaintiff 1 and three others (Law Firm LLC, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Persons of Special Military Service Compensation Deliberation Committee

Seoul High Court Decision 2011Nu36267 decided September 20, 2012

The part of the lower judgment against Plaintiff 1, 2, and 3 is reversed, and that part of the case is remanded to the Seoul High Court. Plaintiff 4’s appeal is dismissed. The costs of appeal by Plaintiff 4 are assessed against Plaintiff 4.

The grounds of appeal are examined.

1. As to the assertion of deviation from the limit of delegated legislation

In a case where it is not clear whether a provision of the enforcement decree conflicts with the mother law, if it is possible to interpret that a provision is consistent with the mother law by comprehensively taking into account the contents, legislative intent, and history of the provisions of the mother law and other provisions of the enforcement decree, it shall not be necessary to declare that the provision is invalid as a violation of the mother law (see Supreme Court en banc Decision 97Nu9864 delivered on December 16, 199, etc.).

Article 2 of the Act on the Compensation for Persons who performed Special Military Missions (hereinafter “the Compensation Act”) defines the term “person who performed a special military mission” as “person who received education and training related thereto” and delegates the authority to determine necessary matters concerning the determination of persons who performed a special military mission (Article 1(2)). According to the delegation, Article 4(1)2 of the Enforcement Decree of the Act on the Compensation for Persons who performed Special Military Missions (amended by Presidential Decree No. 22460, Oct. 27, 2010; hereinafter “amended Enforcement Decree”) provides that the determination of persons who received education and training related to a special military mission as “person who received education and training related to a special military mission” shall be based on whether they completed the education and training course according to the classification of each item.

According to the reasoning of the judgment below, the court below determined that the provision of the amended Enforcement Decree of the Compensation Act does not violate the provisions of the Compensation Act, since the meaning of “persons who received education and training related to special duties” under Article 2(1)2 of the Compensation Act is unclear as to whether they would receive only some education and training related to special duties, or complete all the education and training. In light of the legislative purpose of the Compensation Act enacted to compensate those who made a special sacrifice for the State by performing special duties, if not only the person who received special duties but also those who received certain education and training related to special duties are eligible for compensation, the scope of the provision of the amended Enforcement Decree of the Compensation Act should be strictly interpreted to the extent corresponding to “the person who received the education and training performed the special duties.”

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal doctrine regarding

2. As to the assertion of unconstitutionality due to the violation of the principle of retroactive legislative prohibition and the lack of transitional provisions

In light of the purport and contents of each provision of the Compensation Act and the former Enforcement Decree of the Act on the Compensation for Persons of Special Military Services (amended by Presidential Decree No. 22460, Oct. 27, 2010; hereinafter “former Enforcement Decree”), the provisions of Article 2 of the Compensation Act and Articles 2, 3, and 4 of the former Enforcement Decree of the Compensation Act cannot be deemed immediately to be the determination of the person eligible for compensation under the Compensation Act. Only if the person who made a special sacrifice for the State was recognized as the person who performed a special military mission after deliberation and resolution by the “the Compensation Deliberation Committee for Persons of Special Military Services,” the person eligible for compensation can be determined as the person eligible for compensation (see Supreme Court Decision 2008Du6554, Dec. 11, 2008). Such deliberation and resolution cannot be seen as retroactively guaranteeing the applicant’s entitlement to property rights prior to the recognition of the person who performed a special military mission as the one who received compensation prior to the amendment of the Enforcement Decree.

The lower court determined that the provision of the amended Enforcement Decree does not ex post facto deprive a person who had already been recognized as a person who performed a special military mission upon deliberation and resolution by the Defendant, but only applies to a person who had not yet been recognized as a person who performed a special military mission, and thus, cannot be deemed as constituting a retroactive legislation. Furthermore, the lower court determined that the provision of the amended Enforcement Decree does not ex post facto deprive a person who had already been recognized as a person who performed a special military mission after deliberation and resolution by the Defendant, and that the provision of the amended Enforcement Decree does not ex post facto deprive him of his legal status as a person who was not a person who

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the principle of retroactive legislation prohibition.

3. As to the assertion of violation of the separation principle

According to the records, in the preceding case that the non-party filed against the defendant, there was a judgment in favor of the plaintiff that " insofar as the period of education and training is not specified in the Enforcement Decree before the amendment of the Compensation Act and the Compensation Act, it shall be entitled to compensation under the Compensation Act regardless of whether the plaintiff completed education and training," and the judgment became final and conclusive by Supreme Court Decision 2008Du11426 Decided October 9, 208, which became final and conclusive by dismissal of the defendant's appeal. After that, the amendment of the Enforcement Decree of the Compensation Act and the amendment of the Enforcement Decree of the Compensation Act, whether the "in the case of non-commissioned officers and enlisted men who were in active service (basic education and training courses according to the classification of each item)" was defined as the criteria for determining persons eligible

However, the judgment of the preceding case to the effect that “ regardless of the completion of education and training, it is only the result of interpreting and applying the provisions of the Act on Compensation and the Enforcement Decree prior to the amendment, and it is not derived from such determination solely from the relevant provisions of the Compensation Act. Therefore, it cannot be deemed that the determination of the payment of compensation under the Compensation Act is contrary to the validity of the preceding judgment or infringes on the power of statutory interpretation belonging to the judiciary, as seen earlier by amending the Enforcement Decree based on delegation of the Compensation Act, as seen earlier by amending the Enforcement Decree based on the delegation of the Compensation Act.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the separation of powers.

4. As to the assertion of violation of the principle of trust protection and equality

The court below held that the disposition of this case based on the revised Enforcement Decree of the Act or the revised Enforcement Decree of the Act cannot be deemed to violate the principle of trust protection in light of the fact that the defendant paid compensation to the non-party who did not complete education and training as the plaintiffs, because it is based on the binding force of the judgment in the previous case, and it cannot be viewed as an expression of public opinion that the defendant would pay compensation to those who did not complete education and training, and that the defendant did not express a public opinion that he would otherwise pay compensation to those who did not complete education and training including the plaintiffs, and that the plaintiffs also did not form a certain legal status or a living relationship with trust. The court below held that if the defendant paid compensation to those who did not complete education and training, it may be against the balance between the plaintiffs and those who did not complete education and training after the enforcement of the amended Enforcement Decree of the Act, or the defendant's dismissal of the application for payment of compensation to the plaintiffs pursuant to the amended Enforcement Decree of the Act cannot be deemed to have discriminated without reasonable grounds.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court’s determination is justifiable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles regarding

5. As to the assertion of restriction on application of the amended Enforcement Decree

A. Even in cases where the relevant statute was amended, the application of an administrative disposition shall be based on the amended Act and subordinate statutes enforced at the time of the disposition unless otherwise specified in the transitional provision, and, in relation to the application of such amended Act and subordinate statutes, in cases where the public trust in the existence of the preceding statute is deemed more worthy of protection than the public interest demand for the application of the amended Act and subordinate statutes, its application may be restricted (see Supreme Court Decision 97Nu918, Mar. 10, 200, etc.).

Therefore, in a case where the provisions of the relevant Acts and subordinate statutes were amended after filing an application for compensation, the determination of whether to pay compensation should be made in accordance with the criteria under the amended Acts and subordinate statutes enforced at the time of the relevant disposition. However, in a case where the administrative agency’s acceptance of the application and delayed processing without justifiable grounds and thus changes in the relevant Acts and subordinate statutes and compensation standards, the dispositions made in accordance with the amended Acts and subordinate statutes and compensation standards are unlawful (see, e.g., Supreme Court Decision 2004Du2974, Aug. 25, 2006). Here, the determination of whether to delay processing without justifiable grounds should be made by examining the specific circumstances or circumstances that were delayed based on the statutory processing period or ordinary processing period, and whether there was any motive or intent of the administrative agency intending to avoid the application of the Acts and subordinate statutes prior to the amendment, and whether there is a possibility

B. The lower court determined that the Defendant’s determination on the application for the payment of the Plaintiffs’ compensation after the amendment of the Enforcement Decree of the Compensation Act cannot be said to be a delay in treatment without justifiable grounds, on the grounds that it is reasonable to consider whether to compensate for those who have not completed education and training in the direction of specifying the education and training period related to special duties in relation to the purpose of the judgment after the judgment on the relevant lawsuit was finalized.

C. However, in light of the legal principles as seen earlier, the lower court’s determination on this part of the Plaintiff 1, 2, and 3 (hereinafter “Plaintiffs”) is difficult to accept for the following reasons.

Article 11 of the Compensation Act provides that the determination of whether to pay compensation and the amount thereof shall be made within five months from the date of receipt of the application for the payment of compensation. Meanwhile, according to the reasoning of the lower judgment and the record, the processing period for the Plaintiffs is delayed not only than the period prescribed in the Compensation Act but also over twenty-six months (Plaintiff 1,3) through twelve months (Plaintiff 2) compared to the average processing period for the applicants for compensation at the same time as the Plaintiffs. The delay in such processing was the result of the judgment of the case brought by the non-party in the same position as the Plaintiffs at the beginning of the year. However, even though the Compensation Act and the Enforcement Decree of the Compensation Act did not specify the education and training period which serves as the basis for determining the persons who performed special military missions, the Defendant still suspended the disposition for the Plaintiffs, without completing the amendment of the Enforcement Decree, and then dismissed the education and training of the Plaintiffs, including those subject to special military missions, based on the revision of the Enforcement Decree.

However, in a situation where there is a dispute between the plaintiffs and the applicants in a position similar to the non-party, including the compensation applicant and the defendant about the interpretation of the compensation law and the Enforcement Decree, the defendant's act of reserving the disposition for a long time until the judgment on the previous case becomes final and conclusive is justified in its motive to take the disposition in accordance with the final and conclusive norm. Thus, as long as the court's interpretation of the relevant Acts and subordinate statutes to the effect that the plaintiffs are included in the scope of benefits of the compensation law by the preceding case's judgment, and the defendant's objection is not accepted, the defendant has the duty of the good faith to take the disposition without delay against the plaintiffs according to the contents of the judgment, and the plaintiffs also have the legitimate expectation and trust that they would be subject to the application of the Acts and subordinate statutes interpreted in accordance with its final and conclusive judgment. However, it is reasonable to view that the defendant had no more than the defendant's final decision that it falls under the subject of compensation in a case where the amendment of the Acts and subordinate statutes was made after the amendment of the Acts and subordinate statutes without justifiable reasons.

Nevertheless, the lower court determined that the instant disposition against the Plaintiffs does not constitute a delay without justifiable grounds. In so doing, it erred by misapprehending the legal principles on restrictions on the application of amended statutes due to unfair delay in disposition, thereby adversely affecting the conclusion of the judgment.

D. However, according to the records in the case of Plaintiff 4, the processing period for Plaintiff 4’s application is seven months and is shorter than 7.3 months, which is the ordinary processing period at that time. Since the enforcement decree was enforced on July 28, 2010, which is the date of Plaintiff 4’s application for compensation, and on October 27, 2010, which is 3 months after the date of application for compensation, the enforcement decree was enforced, which is the date of Plaintiff 4’s application for compensation, the disposition should be made within three months from the date of application. This is short of five months from the ordinary processing period as well as the compensation law. Ultimately, it is difficult to deem that there was an unfair delay in handling with Plaintiff 4.

Therefore, the lower court’s rejection of the Plaintiff 4’s assertion is justifiable, and contrary to the allegations in the grounds of appeal, it did not err by misapprehending the relevant legal doctrine, thereby affecting the conclusion of the judgment

6. Conclusion

Therefore, the part of the judgment below against the plaintiff 1, 2, and 3 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal by the plaintiff 4 is dismissed, and the costs of appeal by the plaintiff 4 are assessed against the plaintiff 4. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)