The requirements for the structure of a lawsuit prescribed in Article 128(1) of the Civil Procedure Act, which shall apply mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, and the method of determining whether "the failure is not clear."

Article 8(2) of the Administrative Litigation Act, Article 128(1) of the Civil Procedure Act

[Plaintiff-Appellee] 2001Ma1044 dated June 9, 2001 (Gong2001Ha, 1513)

Re-appellant

Busan High Court Order (Chowon) 2018A7 dated May 11, 2018

The order of the court below is reversed, and the case is remanded to Busan High Court.

The grounds of reappeal are examined.

1. The applicant filed a lawsuit against the Korea Workers' Compensation and Welfare Service to request the revocation of the determination of a disability grade conducted by the said Service on the applicant, but filed an appeal by being sentenced to the dismissal judgment at the first instance court, but the appeal was dismissed, and then filed an appeal by re-appealing the dismissal judgment, and filed an application for legal aid to the whole costs of lawsuit on the ground that poverty lacks the ability to

As to this, the lower court dismissed the instant application on the grounds that the supporting materials submitted by the applicant alone lack to deem that the requirements for the litigation structure were substantiated, and that no other supporting materials were available.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. Although the Administrative Litigation Act does not have any special provision as to the legal aid, the Civil Procedure Act is applied mutatis mutandis (Article 8(2) of the Administrative Litigation Act). According to Article 128(1) of the Civil Procedure Act, it is not clear that the litigation costs are insufficient and lost as the requirements for the legal aid.

Here, the reason why it is not clear to lose here is that the applicant is a passive requirement for the application for rescue in a lawsuit, so it is not necessary to actively state and vindicate the possibility of winning the case, but it is clear that the court should lose based on the data from the trial process until the time, unless it can be determined that the applicant loses it based on the data (see Supreme Court Order 2001Ma1044, Jun. 9, 2001).

B. The record reveals the following facts and circumstances.

1) On October 28, 201, while serving in metal companies, the applicant was faced with an accident falling below the work unit while working in the workplace. As to the injury and disease, such as the closure of the astronomical aggregate and the neutical lighting, etc. resulting therefrom, the applicant obtained medical care approval from the Korea Workers’ Compensation and Welfare Service.

2) After receiving medical care by September 17, 2012, the applicant filed a claim for disability benefits with the Korea Workers’ Compensation and Welfare Service on October 15, 2012. On December 18, 2012, the said Corporation rendered a disposition to determine the applicant’s disability grade as class 12.

3) On March 7, 2017, the applicant filed a lawsuit seeking revocation of the above disposition against the Korea Workers’ Compensation and Welfare Service and received a judgment revoking the above disposition on the ground that the applicant’s disability grade falls under a higher disability grade than that of Grade 12, and the said judgment became final and conclusive.

4) Accordingly, on April 19, 2017, the Korea Workers’ Compensation and Welfare Service rendered a disposition to determine the applicant’s disability grade as Class 11 on the ground that the applicant’s suffering disability falls under Class 11 of Article 53(1) [Attachment 6] of the Enforcement Decree of the Industrial Accident Compensation Insurance Act, and that the reproductive disability status falls under Class 10 of Grade 14 of the above [Attachment 6]’s disability grade (hereinafter “instant disposition”).

5) With respect to this, the applicant filed a lawsuit seeking revocation of the instant disposition that determined the disability grade as class 11 on the ground that his disability status constitutes a higher disability grade than class 11, with the Changwon District Court, and that it is reasonable to determine the applicant’s disability grade as class 11 pursuant to the main sentence of Article 53(2) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act, the said court rendered a judgment dismissing the applicant’s claim of this case on the ground that the applicant’s disability grade is determined as class

6) The applicant appealed against the above judgment, but the appellate court dismissed the appeal. The applicant filed an appeal and filed an application for the instant legal aid on the ground that the applicant lacks financial capacity to pay litigation costs while filing an appeal.

7) The applicant stated in his/her statement on property relations to the effect that he/she constitutes “beneficiary under the National Basic Living Security Act” due to the need for rescue, and the applicant submitted the “beneficiary’s certificate” stating that he/she is conditional recipients of livelihood benefits, medical benefits, and housing benefits.

C. Examining the above facts in light of the legal principles as seen earlier, the following determination is possible.

The applicant not only falls under the beneficiary under the National Basic Living Security Act but also is recognized as a disabled person of Grade 11 in the original case, and therefore, it is difficult to pay litigation costs. Thus, the applicant can be deemed as having explained that there is insufficient financial resources to pay litigation costs. Furthermore, even though the applicant lost in the first instance court and the appellate court, it is not presumed that the applicant would lose in the final appeal on the sole basis of such circumstance. Therefore, it cannot be readily concluded that the applicant has lost.

D. Nevertheless, the lower court dismissed the applicant’s application for lawsuit aid on the ground that it was insufficient to recognize the cause of lawsuit aid. In so determining, the lower court erred by misapprehending the legal doctrine on the requirements of lawsuit aid, thereby adversely affecting the judgment. The ground of reappeal assigning this error has merit.

3. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)