(영문) 서울고등법원 2013.10.1. 선고 2013누9955 판결

2. The Defendant’s decision to exclude the application of the Act on the Persons of Distinguished Services to the National independence against the Plaintiff on December 8, 2009 shall be 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. Quotation of judgment of the first instance;

1. The part concerning the reason for the decision of this court is identical to the corresponding part of the judgment of the court of first instance, and the corresponding part is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The preceding disposition of this case, which announced and decided the deceased B (hereinafter referred to as the "the deceased") as the pro-Japanese actors, has a serious defect that the plaintiff who is a lineal descendant is deprived of the opportunity to file an objection because he did not notify his lineal descendant or interested parties under the Japanese colonial Rule, pursuant to Article 28 of the Special Act on Finding the Truth of Anti-National Acts (hereinafter referred to as the "Special Act"), and it is illegal that the Anti-National Acts and Finding Committee for Finding the Truth of the Truth of the Truth of the Korean People (hereinafter referred to as the "Committee for Finding the Truth") has arbitrarily interpreted the act falling under Article 2 subparagraph 13 of the Special Act and has selected the deceased as the

The preceding disposition of this case contains any defect in the grounds for revocation, and the Plaintiff became aware of the existence of the preceding disposition only after receiving the notice of the subsequent disposition of this case on December 8, 2009, which was at the time when the Plaintiff filed an administrative appeal on the subsequent disposition of this case, was in a state of dispute with respect to the foregoing preceding disposition on February 16, 2010, which was at the time when the Plaintiff filed an administrative appeal on the subsequent disposition of this case, and thus, if the Plaintiff fails to dispute any longer on the illegality of the foregoing preceding disposition, it would result

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the binding force of the instant subsequent disposition is recognized (whether succession to defects)

A) Legal principles

Where two or more administrative dispositions are continuously conducted, when the purpose of a separate legal effect between the preceding dispositions and the subsequent dispositions is to make it impossible to dispute the validity of the preceding dispositions due to the defect in the preceding dispositions, except for the case where the defect in the preceding dispositions is grave and obvious and the invalidity of the preceding dispositions is null and void. However, even in cases where the preceding dispositions and the subsequent dispositions are aimed at distinguishing the two separate effects, the defect in the preceding dispositions may not contest the validity of the latter dispositions on the ground of the defect in the preceding dispositions. However, even in cases where the preceding dispositions and the subsequent dispositions aim at distinguishing the two separate effects, it would be harsh that the non-existence of the preceding dispositions and the binding force are more severe to the person who suffers disadvantage due to them, and if the result is not predicted to the parties concerned, 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 (see Supreme Court Decision 93Nu8542, Jan. 25,

B) Determination

(1) In light of the above legal principles, the fact finding results on the Ministry of Public Administration and Security of the court of the first instance prior to the remanding of this case can be seen as a person subject to investigation, his spouse, lineal descendants, or interested parties, despite the fact finding that the deceased was a person subject to investigation, his spouse, and lineal descendants, or interested parties, and the fact finding that the deceased was a person subject to investigation of the first instance court prior to the remanding of this case as a person subject to investigation, but the deceased was notified of the fact that the deceased was selected as a person subject to investigation of the deceased and the fact that the deceased was determined as a person subject to investigation of the deceased and that the deceased was determined as a person subject to investigation of the deceased's lineal descendants, and that the deceased was deprived of the deceased's entitlement to the person subject to investigation of the deceased's distinguished services to the national independence and the deceased's bereaved family members were deprived of the deceased's entitlement to the Act on Honorable Treatment of the Persons of Distinguished Services to the national independence.

Meanwhile, in light of Article 39 of the Act on the Persons of Distinguished Services to the State, which stipulates that if the persons of distinguished services to the national independence were determined as having 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 State or other Acts excluding the persons of distinguished services to the national independence subject to the application of the Act, the preceding

(2) If there are circumstances, the Plaintiff considered that the Defendant’s decision to exclude the application of the Act from the Act on the Persons of Distinguished Services to the State, which is the subsequent disposition of this case, was an administrative disposition directly affecting his legal status, and it is not easy to think that the fact-finding committee’s decision to exclude the application of the Act on the Persons of Distinguished Services to the State, which is the prior disposition of this case, was an independent administrative disposition that affects his legal status. It is difficult to expect that the Plaintiff, who had been in this situation, would have filed an administrative appeal or administrative litigation separately from the procedure for filing an objection under the special Act or the subsequent disposition of this case. Nevertheless, on the ground that the Plaintiff did not take such procedure, making it impossible to dispute the validity of the subsequent disposition of this case on the ground of the defect of the prior disposition of this case, on

(3) Therefore, it is reasonable to deem 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.

2) Whether the prior disposition procedure of this case is unlawful

In light of the above relevant Acts and subordinate statutes, evidence Nos. 2 through 5, the fact inquiry results on the deceased before remanding, and the following circumstances acknowledged by the court of public administration and Security, i.e., the truth-finding committee shall provide the person subject to investigation, his spouse, lineal descendants, or interested parties with an opportunity to state their opinions, and shall notify the person subject to investigation, his spouse, lineal descendants, or interested parties. The person subject to investigation, etc. shall be allowed to file an objection with the truth-finding committee within 60 days from the date of receipt of the notification. (ii) In addition, the Special Act provides that the person subject to investigation, his spouse, and lineal descendants, or interested parties may be notified by disclosing pro-Japanese acts applied to the person subject to investigation and notifying the deceased of the fact that the person subject to investigation could not be notified of the fact that the person subject to investigation was not registered with the deceased's father and the deceased's deceased's general deceased's death before June 25, 200.

3) Sub-determination

In the event that there is an error in the prior disposition of this case, the validity of the subsequent disposition of this case can be asserted on the ground of such error. The prior disposition of this case is unlawful on the ground that there is a procedural defect as above. Therefore, the subsequent disposition of this case on the ground of the prior disposition of this case is also illegal and thus revoked.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and the judgment of the court of first instance, which has different conclusions, is unfair, so it is revoked by accepting the plaintiff's appeal, and it is so decided as per Disposition with the decision to revoke the subsequent disposition of this case.