[1] The case where the person who received compensation, etc. pursuant to Article 18(1)2 of the Act on the Compensation for Persons who performed Special Military Missions can recover the erroneously paid part

[2] The meaning of an interest in the "interest in the outcome of the relevant lawsuit", which is a requirement for participation in a litigation case

[1] Article 18(1)2 of the Act on the Compensation for Persons who performed Special Military Missions, Article 4(2) of the Administrative Procedures Act / [2] Article 8(2) of the Administrative Litigation Act, Article 71 of the Civil Procedure Act

[1] Supreme Court Decision 2011Du31697 Decided April 10, 2014 (Gong2014Sang, 1050) / [2] Supreme Court Decision 96Da51714 Decided December 26, 1997 (Gong1998Sang, 393), Supreme Court en banc Decision 2007Da16885 Decided June 28, 2007, Supreme Court Decision 2007Da63089, 63096 Decided June 23, 201 (Gong201Ha, 1440)

Plaintiff (Law Firm Barun, Attorneys Kim Jung-soo et al., Counsel for the plaintiff-appellant)

Plaintiff Intervenor 1 and one other

Persons of Special Military Service Compensation Deliberation Committee

Seoul High Court Decision 2011Nu23278 decided June 27, 2012

The lower judgment is reversed, and the case is remanded to the Seoul High Court. The Plaintiff’s motion to intervene in the case is dismissed. The litigation cost incurred by the Plaintiff’s motion to intervene is borne by the Intervenor.

1. The grounds of appeal are examined.

A. Article 18(1) of the Act on the Compensation for Persons who performed Special Military Missions (hereinafter “the Compensation Act”) provides that “The State shall recover all or part of the compensation, etc. where a person who received the compensation, etc. under this Act falls under any of the following subparagraphs,” and subparagraph 2 of Article 18 provides that “an erroneous payment is made.”

Meanwhile, the amount of compensation, etc. under the Compensation Act has both the characteristics of the State’s compensation for special sacrifice or veterans affairs related to a special military mission and the nature of social security (see Supreme Court Decision 2007Du1302, Nov. 13, 2008). Accordingly, the entitlement to compensation, etc. under the Compensation Act belongs to the so-called social security entitlement. However, the public interest intended to be achieved through the revocation of the beneficial administrative disposition in an administrative field involving social security benefits is the financial interest formed through the government’s burden, etc., and while the beneficiary is in violation of private interest, such as the protection of trust and stability of legal life, etc. by the revocation of the beneficial administrative disposition. Therefore, unless there is any intentional or gross negligence on the part of the beneficiary with respect to the defect in the beneficial administrative disposition, it cannot be readily concluded that the beneficiary is more important or larger than the disadvantage that the beneficiary needs to suffer.

In full view of the contents and purport of the above provisions, and the unique characteristics of the revocation of beneficial administrative dispositions in the area of social security, where a disposition to recover the portion of compensation, etc. erroneously paid from the party who received the compensation, etc. under Article 18(1)2 of the Compensation Act is to be taken, it is reasonable to view that the restoration to original state again constitutes a disposition to recover the amount of compensation, etc. erroneously paid by the party who received the compensation, in light of whether the party was responsible for intentional or gross negligence with respect to the supply and demand of compensation, the amount of compensation, the time interval between the date of payment and the date of redemption, and whether the beneficiary consumed compensation, etc., was harsh to the beneficiary, and the specific details and degree of the need for public interest to be achieved through the disposition to collect the amount of compensation, etc., the degree of disadvantage that the party would suffer due to the disposition, and the need to collect the amount of compensation, etc. from the party who received the compensation, should be compared and compared with the disadvantage that the party would suffer due to the need for public interest.

B. In light of the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

(1) On May 27, 2002, the Plaintiff submitted to the Deliberation Committee on Compensation for Special Civil Petitions an application for filing a civil petition seeking payment of compensation on the grounds that the Plaintiff joined the Air Force (Supplementary No. 2 omitted) Special Military unit on July 2, 1952, and performed special duties. However, on March 2003, the Plaintiff received a decision of deferment on the grounds that it belongs to the said U.S. Air Force (S. No. 1 omitted) Air Force (hereinafter “U.S. Air Force”).

(2) On February 14, 2005, the Plaintiff filed an application for payment of compensation under the Compensation Act with the Defendant, and submitted evidentiary documents in accordance with the form prescribed by the Compensation Act. The Plaintiff entered the attached special duties-related major units of the application into the Air Force (Incidental No. 2 omitted) special stage, while the Plaintiff entered the attached special duties-related major units of the application into the attached special duties-related major units of the Air Force (Supplementary No. 2 omitted) special stage, and entered the attached special duties-related description as follows: (a) on September 14, 1951, the Plaintiff was employed by Nonparty 1 of the Air Force (Incidental No. 2 omitted) special stage, who escaped from the amount of reputation pursuant to Nonparty 1 while engaging in public works, and (b) on September 152, 1952, the Plaintiff carried out the special duties, such as returning Nonparty 2 along with Nonparty 2 and Nonparty 15 (Supplement No. 2 omitted of the Air Force) special unit.

(3) On September 18, 1952, to October 10, 1952, the Defendant recognized the Plaintiff as a civilian artist belonging to the Air Force (number 2 omitted), a military intelligence unit (number 3 omitted), and paid compensation, etc. to the Plaintiff on November 27, 2007, recognizing that the Plaintiff was a person who performed a special military mission on one occasion from September 18, 1952 to October 10, 2052. The Defendant conducted an ex officio re-examination to the Plaintiff on the ground that the Plaintiff performed a special mission in the same military unit, while conducting a fact-finding investigation for the payment of compensation to Nonparty 1, 3, etc., for whom the Plaintiff applied for the payment of compensation, the Defendant issued a disposition of this case on the ground that the Plaintiff was erroneous for the payment of compensation, etc. at the intelligence unit (number 1 omitted) that is not a military intelligence unit but a foreign military unit (number 1 omitted).

(4) According to the publication materials of the Air Force Headquarters and the decisions of the National Human Rights Commission on Human Rights, the U.S. (number 1 omitted) unit is known to be a unit belonging to the U.S.A.A.A., which, at the time of the Korean War, was directed by Nonparty 4 as a commander of the U.S. Air Force dispatch team who served as an official in charge of non-party 1, who was engaged

(5) At the time of the application for the payment of compensation, the Plaintiff’s letter of evidence submitted by the Plaintiff as documentary evidence indicates that the Plaintiff was affiliated with the U.S. unit (number 1 omitted). Nonparty 1, 3, etc. stated in the process of the fact-finding to the effect that they and the unit to which the Plaintiff belongs are affiliated, not the air force intelligence unit, in the process of the fact-finding.

(6) However, in the original trial, Nonparty 3 stated that he was educated and instructed by the Armed Forces while serving in the name of the unit in the name of the unit. In addition, at the time of the Korean War, Nonparty 5, who served in the Information State of the Korea Air Force Headquarters, stated in the original trial that the air force, upon the support of the U.S. forces, trained civilian as a dispatched unit in the West Islands area including the U.S. Army, and carried out a special mission, and that the dispatched unit was unaware of how the headquarters is operated. Moreover, Nonparty 6, who served in the Information State of the Korea Air Force Headquarters, also stated in the original trial that he was aware of the dispatch unit as a unit of the Korea Air Force.

(7) Meanwhile, as a Air Force (Serial No. 3 omitted) commander at the time of the Korean War, a public confirmation letter prepared by Nonparty 7, who was in reserve service, with the U.S. military, jointly with Nonparty 4, etc., stating that the Plaintiff and Nonparty 2 performed a special mission in the U.S. unit (number No. 1 omitted). The confirmation letter prepared by Nonparty 8, who was employed as the Air Force Navy commander at the time, was written by the Plaintiff and Nonparty 2, etc. under the direction of Nonparty 9, etc. for the Air Force Subrogation.

(8) The Plaintiff consistently asserted that, from the Defendant’s reexamination to the original trial, the unit to which he belongs constitutes either the Republic of Korea armed forces or the Korea-U.S. military unit.

C. In light of the above facts, even if the Plaintiff was affiliated with a foreign armed forces, not a military unit established and operated by the Republic of Korea at the time of the Korean War, it appears that the Plaintiff actually performed a special mission after undergoing command and training by the Air Force of the Republic of Korea, and it is reasonable to deem that the Plaintiff was highly probable that the military unit to which the Plaintiff belongs was deemed to have performed a special mission in the military intelligence unit prescribed by the Compensation Act, considering that the military unit was either the Air Force intelligence unit of the Republic of Korea or at least the Korea-U.S., as alleged by the Plaintiff, or that the military intelligence unit was deemed to have been performing a special mission. Therefore, even if the Plaintiff submitted the application for payment by stating the attached military unit as a military intelligence unit and submitted materials to support it, it is difficult to deem that the Plaintiff

Therefore, the lower court should have determined the Plaintiff’s assertion that the instant disposition that the Plaintiff’s payment of compensation, etc. received violates the principle of trust protection, etc. In so doing, the lower court should have determined on the following grounds: (a) the instant disposition that redeems the amount corresponding to the compensation, etc. paid erroneously in accordance with the foregoing legal doctrine; (b) the details of the need for public interest to be achieved by the Defendant through the instant disposition that redeems the amount corresponding to the compensation, etc. that the Plaintiff would have obtained; (c) whether the Plaintiff is holding the compensation paid in accordance with the Defendant’s payment decision; and (d) whether the Plaintiff has already consumed the compensation; and (e) whether the instant disposition that orders the redemption of a large amount of compensation, etc. after a considerable period from the date on which the payment decision was made to pay the compensation, etc., infringes on the Plaintiff’s trust and the stability of legal life; and (e) further, (e) whether the instant disposition violates the principle of trust protection, etc.; and (e) specifically rejected the Plaintiff’s assertion.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the principle of protection of trust in relation to the recovery of compensation under Article 18(1) of the Compensation Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. The plaintiff's supplementary intervenor's application for participation ex officio is examined.

In order to intervene in a lawsuit to assist one of the parties, there must be an interest in the result of the lawsuit in question. The term "interest" refers to a legal interest rather than an actual, economic or emotional interest (see Supreme Court Decisions 96Da51714, Dec. 26, 1997; 2007Da63089, 63096, Jun. 23, 201, etc.).

The Intervenor asserts to the purport that the instant disposition that determined the recovery of compensation, etc. against the Plaintiff is lawful, and that the Plaintiff’s assertion is entirely justifiable. As such, the Intervenor asserts to the effect that the Plaintiff’s motion for intervention is filed in order to assist the Plaintiff as a member of the Plaintiff’s affiliated organization or its chairperson. However, the foregoing circumstance cannot be deemed as a legal interest in the outcome of the instant lawsuit, and thus, the Plaintiff’s motion for intervention is unlawful as it does not meet the requirements

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. All of the Intervenors’ motion to intervene in the case are dismissed, and the litigation cost incurred by the motion to intervene in the case is assessed against the Intervenors. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim So-young (Presiding Justice)