(영문) 광주고등법원 2020.2.13. 선고 2015누7523 판결

2. On December 20, 2013, the decision that the Defendant rendered against the Plaintiff on December 20, 2013 as a senior bereaved family member is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On December 1, 2008, the Plaintiff’s son B (hereinafter referred to as “the deceased”) entered the deceased on December 1, 2008, and died on October 10, 2009, and the Board of Patriots and Veterans (hereinafter referred to as “the Deceased”) deliberated and resolved on October 4, 2013 on the deceased’s eligibility requirements under the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter referred to as “the Patriots and Veterans Compensation Act”).

B. The Plaintiff, the father and mother of the Deceased, asserted to the effect that the Defendant, etc. constitutes a person who mainly supported or nurtured the Deceased, and the Board of Patriots and Veterans Entitlement deliberated and resolved on December 5, 2013 to the effect that “C and the Plaintiff do not constitute a parent who mainly supported or nurture the Deceased.”

C. Accordingly, on December 20, 2013, the Defendant rendered a prior decision on the person eligible for veteran’s compensation (hereinafter “instant disposition”) to the effect that “the Plaintiff shall not be paid compensation as it does not constitute a senior bereaved family member” (hereinafter “the instant disposition”).

[Reasons for Recognition] Facts without dispute, entry in Gap evidence 1 and 2 (including branch numbers, hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Considering the following circumstances, it is evident that a person who mainly supported or brought up the deceased is the Plaintiff, and thus, the instant disposition on a different premise is unlawful.

A) Although C, after the divorce with the Plaintiff, brought the Deceased alone, C did not look at all without leaving the Deceased at the underground bank of Songpa-gu Seoul, Songpa-gu, Seoul.

B) The Plaintiff, on behalf of the Deceased’s work on behalf of the Deceased, took place, and paid insurance premiums and installment payments for the Deceased, etc. on behalf of the Deceased, and actually supported and brought up the Deceased, such as reimbursement of the university school expenses borrowed by the Deceased.

2) The instant court filed a petition for adjudication of unconstitutionality with respect to the portion of the former Act on Support for Persons Eligible for Veteran’s Compensation (amended by Act No. 1660, Nov. 26, 2019; hereinafter referred to as the “former Act”) and the portion of the compensation that takes precedence over a large number of persons who fall under B among Article 11(1)2 of the former Act on Support for Persons Eligible for Veteran’s Compensation (amended by Act No. 1660, Nov. 26, 2019; hereinafter referred to as the “former Act”), and the Constitutional Court rendered a ruling of unconstitutionality with respect to each of the above parts (hereinafter referred to as the “former Act”). In this case, the instant disposition constitutes a ruling of unconstitutionality with respect to each of the above parts. Therefore, the newly amended provisions of unconstitutionality with respect to the instant disposition should be applied in accordance with the purport of the amended Act, even if both the Plaintiff and C do not constitute a person who mainly supports or raises a person.

Therefore, pursuant to the provisions of the old law, the disposition of this case excluding the plaintiff as the beneficiary is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination on the first Plaintiff’s assertion

Considering the following circumstances, the evidence submitted by the Plaintiff alone is insufficient to acknowledge “the fact that the Plaintiff mainly supported or brought up the Deceased,” and there is no other evidence to acknowledge it. Accordingly, the aforementioned assertion by the Plaintiff is rejected on the premise contrary thereto.

1) The Plaintiff asserts that C was unable to look back without leaving the deceased in the underground room located in Songpa-gu Seoul, Songpa-gu, Seoul after the divorce. However, as seen so, it is difficult to believe the result of Party A’s personal examination of the deceased at the court of first instance on the following grounds: (i) The Plaintiff’s above assertion is not verified through objective evidence; (ii) on May 9, 2001, after the Plaintiff was divorced, C leased underground bags located in Songpa-gu, Seoul; (iii) made a move-in report with the deceased; and (iv) on July 1, 201, after the deceased’s death, C was deemed a move-in report with the deceased for a considerable period of time to maintain the relationship between the deceased’s living in Seoul and the deceased’s living in Seoul; and (v) it is difficult to conclude that C was the ground for the said move-in report with the deceased’s living in Seoul for the first time after his death.

2) It is true that the Plaintiff transferred money to the Deceased, subscribed to the insurance and housing installments in the name of the Deceased, paid the relevant premiums and installments, and paid part of the deceased’s school loan and mobile phone fees. However, as seen earlier, as long as C resided together with the Deceased by leasing an above underground room and takes part of the deceased’s health premiums and part of the deceased’s health premiums, the Plaintiff cannot be deemed to have supported or taken care of the Deceased, even if the foregoing circumstances asserted by the Plaintiff are acknowledged.

D. Judgment on the second plaintiff's assertion

1) The inconsistency with the Constitution and the scope of provisional application

The provision of the former Act limits the number of persons eligible for veteran's compensation to one person when paying bereaved family's compensation to the parents of the persons eligible for veteran's compensation, and stipulates that the parents of the parents shall take precedence over the parents when there is no agreement among the persons eligible for veteran's compensation or when it is impossible to identify the persons who

In the Constitutional Court Decision 2016Hun-Ga14 Decided June 28, 2018, the Constitutional Court decided that the provision of the former Act uniformly limits the number of eligible recipients of compensation without reasonable grounds, and discriminates against the aged among parents and those who do not do so without reasonable grounds. Furthermore, the Constitutional Court decided that the provision of the former Act provisionally applies until the legislative amendment was made on December 31, 2019 (hereinafter referred to as "the decision of inconsistency with the Constitution") by declaring that (i) if the provision of the former Act simply becomes invalid upon the decision of unconstitutionality, the provision on the payment of compensation to parents who are bereaved families of persons eligible for veteran's compensation should be stipulated; and (ii) if it is difficult to achieve the legislative purpose, the provision of the former Act shall be applied in a situation where it is difficult to determine the eligible recipients of compensation and how to determine the scope of eligible recipients in accordance with any criteria and requirements; and (ii) on the grounds that the legislative discretion is granted to the legislative body.

According to the unconstitutionality of the former Act and the grounds for provisional application, the Constitutional Court’s order to continue to apply the former Act to a certain time despite having confirmed the unconstitutionality of the provision of the former Act, is due to the need to continue to maintain the eligibility as a beneficiary of compensation for parents, who are bereaved families of persons eligible for veteran’s compensation. Furthermore, the reason for respect for the legislative right to determine the persons eligible for compensation and its scope of parents, who are bereaved families, is related to the need to make a decision not to make a simple decision of unconstitutionality on the former Act but to urge legislative improvement, and cannot be viewed as a basis for continuing to maintain the status of infringement of fundamental rights under the former Act until the legislative amendment is implemented.

Therefore, the ruling of inconsistency with the Constitution of the Republic of Korea issued an order to continue the application of the former Act to the effect that the parent, who is a bereaved family member of a person eligible for veteran's compensation, can continue to be a beneficiary's eligibility. In other words, the provision of the former Act limits the beneficiary to one when paying bereaved family's compensation to the parent of a person eligible for veteran's compensation, and the provision of the former Act limits the beneficiary's compensation to the one when the parent of a person eligible for veteran's compensation is paid. In other words, the provision of the former Act providing that the parent

2) Amendment of the former Patriots and Veterans Compensation Act and the retroactive effect of the inconsistency with the Constitution

Pursuant to the decision of inconsistency with the Constitution of the Republic of Korea, the Act on Veterans' Compensation amended by Act No. 1660, Nov. 26, 2019; Article 12(2)1 and 2; Article 12(2)1 of the Act provides that where at least two bereaved family members are in the same order of priority, a person designated by agreement among bereaved family members shall be given priority; where there is no person corresponding thereto, a person who mainly supports or raises a person eligible for veteran's compensation shall be given compensation; and where there is no person falling under subparagraphs 1 and 2 of the above Article 12(2)3 of the Act, a new provision provides that "where there is no person falling under subparagraphs 1 and 2 above, a person who is aged shall be paid compensation to the person who is in the same order of priority shall be equally paid compensation, notwithstanding Article 11(1) of the Act, and necessary matters concerning the method thereof shall be prescribed by Presidential Decree. Meanwhile, Articles 1 and 2 of the Addenda (Act No. 1660) of the Veterans's Compensation Act shall be applied retroactively to the Act.

However, as long as the Constitutional Court has decided to render a ruling of inconsistency with the Constitution and imposes the legislative discretion on the legislative body to revise or abolish the legal provisions in a constitutional manner, the legislative amendment and the scope of retroactive application depends on the legislative discretion in principle. However, considering the purport of the decision of inconsistency with the Constitution as to the provisions of the former Act or the guarantee of effectiveness of specific norm control in the adjudication of inconsistency with the Constitution as to the provisions of the former Act, at least regarding the pertinent case where the decision of inconsistency with the Constitution has been made, the retroactive effect of the decision of inconsistency with the Constitution as to the pertinent case shall be deemed to have been affected (see, e.g., Supreme Court Decisions 2008Du1885, Sept. 29, 201; 2016Du47697, Jul. 11, 2018). Accordingly, even if the instant case is not subject to the amended provisions of the former Patriots and Veterans Compensation Act, the pertinent provision of the Act shall not be deemed to have been included in the scope of application.

3) Determination on the instant case

On the other hand, this Court accepted the Plaintiff’s request for adjudication on the unconstitutionality of the provisions of the former Act, and requested to the Constitutional Court for adjudication on the unconstitutionality of the Act, and the fact that the Constitutional Court rendered a decision of inconsistency with the Constitution of this case is clear in records. Therefore, since this case’s ruling of inconsistency with the Constitution of this case as to the pertinent case’s case of inconsistency with the Constitution of the Republic of Korea is subject to the retroactive effect of its decision, Article 12(2), which is a provision relating to “the decision of the beneficiary of compensation and the scope of payment of compensation for the parents, who are the bereaved family members of the amended Veterans Compensation Act, should be applied.”

On the other hand, in light of the aforementioned circumstances, the Defendant also rendered the instant disposition on the premise that the Plaintiff and C cannot be deemed to have supported or brought up the Deceased mainly, and it is reasonable to deem that both the Plaintiff and C do not constitute a person who mainly supported or brought up the Deceased. Therefore, the Plaintiff’s disposition to exclude the Plaintiff from the beneficiary should be revoked in violation of Article 12(2)3 of the amended Patriots and Veterans Compensation Act, on the ground that: (a) the parents of a person eligible for veteran’s compensation who are bereaved family members did not reach an agreement with the beneficiary; or (b) there was no person who mainly supported the Deceased; and (c) the Plaintiff is entitled to receive compensation in equal installments with C pursuant to Article 12(2)3 of the amended Patriots and Veterans Compensation Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance differs from this conclusion, and it is revoked and accepted the plaintiff's claim of this case.