[1] The case where the validity of the subsequent disposition can be asserted on the ground of defects in the prior disposition even where the prior disposition and the subsequent disposition aim to separate effects independently

[2] In a case where the head of the local veterans' office, upon the final announcement of the committee for ascertaining the truth of the anti-national acts that decided Gap as the anti-national actors, decided Gap's bereaved families Eul, etc. to be eligible for the application of the Act on Honorable Treatment of the Persons of Distinguished Services to the Independence, the case holding that the judgment below erred by misapprehending the legal principles on the grounds of illegality of the preceding disposition, although it cannot be recognized that the binding force of the preceding disposition cannot be recognized, and thus, the latter disposition can be asserted for the validity of the preceding disposition on the grounds of illegality of the preceding disposition

[1] In a case where two or more dispositions are continuously made for the purpose of a separate legal effect between the preceding dispositions and the subsequent dispositions, the validity of the preceding dispositions shall not be asserted on the ground of the defect in the preceding dispositions, except in a case where the defect in the preceding dispositions is grave and obvious and the invalidity of the preceding dispositions is null and void consecutively. However, even in a case where the preceding dispositions and the subsequent dispositions aim to distinguish independently, even if the two or more different effects are carried out independently, the non-existence of the preceding dispositions and the binding force thereof exceed the tolerance limit, and if the result is not predicted to the parties, the binding force of the subsequent dispositions cannot be recognized in light of the ideology of the Constitution guaranteeing the right to trial of the people.

[2] The case holding that in case where the head of the local veterans branch office rendered a decision of exclusion from the application of the Act on the Honorable Treatment of Persons of Distinguished Services to the national independence against Gap's surviving families, etc. who were given honorable treatment such as compensation for persons eligible for the application of the Act on Honorable Treatment of Persons of Distinguished Services to the national independence (hereinafter "the Act on the Honorable Treatment of Persons of Distinguished Services to the national independence"), he did not know the fact of the preceding disposition before the Commission did not notify Gap's decision on the person of distinguished services to the national independence because he did not notify his decision on the person of distinguished services to the national independence, and that the decision of exclusion from the application of the Act on the Persons of Distinguished Services to the national independence to the national independence, which is the next disposition, could not be seen as an administrative disposition directly affecting his legal status, and it was not easy to think that the decision of the Committee on Honorable Treatment of Persons of Distinguished Services to the national independence, which did not have any error in the legal principles as to the preceding disposition since it did not have any disadvantage after the preceding disposition.

[1] Article 1 of the Administrative Litigation Act / [general administrative disposition] Article 27 (1) of the Constitution of the Republic of Korea / [2] Article 39 (1) 6 of the Honorable Treatment of the Persons of Distinguished Services to the State, Article 19 and Article 28 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese colonial Rule, Article 1 of the Administrative Litigation Act / [general disposition] Article 27 (1) of the Constitution

[1] Supreme Court Decision 93Nu8542 delivered on January 25, 1994 (Gong1994Sang, 849)

Plaintiff (Law Firm Jeong, Attorneys Park Jong-ho et al., Counsel for plaintiff-appellant)

Secretary of the Office of Government Veterans Affairs

Seoul High Court Decision 2011Nu22664 decided February 10, 2012

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

The grounds of appeal are examined.

1. In a case where two or more administrative dispositions are continually conducted for the purpose of a separate legal effect between the preceding dispositions and the subsequent dispositions, the validity of the subsequent dispositions cannot be asserted on the ground of the defect in the preceding dispositions except for a case where the defect in the preceding dispositions is grave and obvious, and the validity of the subsequent dispositions cannot be asserted. However, even in a case where the preceding dispositions and the subsequent dispositions are carried out for the purpose of distinguishing the two separate effects, even if the defect in the preceding dispositions are grave and obvious, the non-existence of the preceding dispositions and the binding force thereof exceed the tolerance limit, and if the result is not predicted to the parties, the binding force of the subsequent dispositions cannot be acknowledged in light of the ideology of the Constitution guaranteeing the right to trial of the people (see Supreme Court Decision 93Nu8542, Jan. 25, 1994).

2. The court below, citing the reasoning of the judgment of the court of first instance, found that the plaintiff was subject to the application of the Act on Honorable Treatment of Persons of Distinguished Service to Independence (hereinafter referred to as the "Act") with his children of the deceased non-party (hereinafter referred to as the "the deceased"), and received honorable treatment such as compensation from January 2007, and that the committee for ascertaining the Truth of Pro-Japanese Acts (hereinafter referred to as the "Fact-General Finding Committee") was not able to recognize the plaintiff's appeal of this case on November 27, 2009, and it was found that the court below rejected the plaintiff's final announcement of 1,05 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese Rule No. 13 (hereinafter referred to as the "Special Act") for the reason that the plaintiff could not be subject to the application of the Act before the revocation of the application of the Act, and it was found that there was a lack of evidence to acknowledge the plaintiff's exclusion from the application of the Act.

3. However, in light of the above legal principles and records, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the Special Act, the Truth Committee for the Inspection of the Truth provides that the person subject to the investigation, his spouse, lineal descendants, or interested parties shall be notified of the facts selected as the person subject to the investigation as the person subject to the investigation and the details determined as the person subject to the pro-Japanese act as a pro-Japanese act as a result of the investigation. However, the Committee for the Inspection of the Truth shall consider the person as an interested party and notify him of the fact that the deceased was selected as the person subject to the investigation and the fact that the deceased was determined as the person subject to the investigation as a pro-Japanese anti-national act on the grounds that the deceased was returned to North Korea at the

Accordingly, the Plaintiff did not know that the deceased was selected as a person subject to the investigation of pro-Japanese acts and that the deceased was determined as having committed pro-Japanese acts as a result of the investigation conducted by the deceased. However, the Plaintiff knew that the deceased was determined as a pro-Japanese and anti-national act and that the deceased was deprived of the compensation and honorable treatment of the deceased, who is the bereaved family member of the person of distinguished services to the national independence.

B. Meanwhile, according to Article 39 of the Act on the Persons of Distinguished Services to the National independence, if it is determined that the persons of distinguished services to the national independence committed pro-Japanese acts under the special Acts, the Minister of Patriots and Veterans Affairs shall not give any honorable treatment to the persons of distinguished services to the national independence, their bereaved families, or their families pursuant to the Act on the Persons of Distinguished Services to the national independence or other Acts, except for those persons eligible for the application of the Act. As such, the preceding disposition in this case is

C. The plaintiff thought that the defendant's decision of exclusion from the application of the Act on the Persons of Distinguished Services to the State, which is the subsequent disposition of this case, is an administrative disposition directly affecting his legal status, and it is not easy to think that the decision of the pro-Japanese and the Anti-National Collaborative Acts Commission without being notified, is an independent administrative disposition affecting his legal status.

It is difficult to expect that the Plaintiff, who had been in such a situation, would have filed an administrative appeal or administrative litigation, separate from the procedure for filing an objection under the Special Act or the procedure for filing an administrative action of this case. Nevertheless, making the Plaintiff unable to dispute the validity of the subsequent disposition of this case on the ground of the defect in the prior disposition of this case on the ground that the Plaintiff did not take such procedure, would not be deemed to have any disadvantage exceeding the permissible limit of admission

D. If there are circumstances, it is reasonable to view that the binding force of the subsequent disposition of this case cannot be recognized. Thus, in a case where there is an error of law in the prior disposition of this case, the plaintiff can contest the validity of the subsequent disposition of this case.

Nevertheless, the court below erred in the misapprehension of legal principles as to cases where the validity of the subsequent disposition can be asserted on the grounds of defects in the prior disposition in the administrative litigation, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)