(영문) 서울행정법원 2016.8.19. 선고 2015구합10599 판결

A. On June 17, 2014, B asserted that the committee for supporting the victims, etc. of forced mobilization of mobilization in the Republic of Korea and forced mobilization in foreign countries (hereinafter referred to as the “instant committee”) constituted bereaved family members as the grandchildren of the network C (hereinafter referred to as “the deceased”), who were forced mobilization in foreign countries, submitted a letter of designation of the representative of bereaved family members of D, E, F, and G (hereinafter referred to as “instant application”).

B. On March 26, 2015, the instant commission: (a) was mobilized on the daily basis by the deceased; (b) returned from around 1944 to August 8, 194, to a worker in a non-regional workplace in Japan; and (c) died on January 8, 1951; (b) but (c) on the ground that C’s grandchildren do not constitute a bereaved family member under Article 3 of the Special Act on the Investigation into Force Forced Mobilization during the Counter-Japan War and the Support for Victims of Foreign Force Mobilization, Etc. (hereinafter “Compulsory Mobilization Investigation Act”), the commission decided to dismiss the application for the payment of consolation money, etc. pursuant to Article 24 of the Compulsory Mobilization Investigation Act (hereinafter “decision to dismiss the instant case”).

C. On April 29, 2015, the Plaintiff, a dependent upon the Deceased, entrusted B with the application and receipt of consolation money, etc. pursuant to Article 24 of the Enforcement Decree of the Compulsory Mobilization Investigation Act, and then requested B to review the instant decision of dismissal on April 29, 2015. However, the instant committee rejected the Plaintiff’s application for reexamination pursuant to Article 22 of the Compulsory Mobilization Investigation Act on the ground that “the other party to the instant decision of dismissal was B, and thus, the Plaintiff is not entitled to apply for reexamination on the instant decision of dismissal.”

D. Meanwhile, pursuant to Article 19(1) of the Compulsory Mobilization Investigation Act, the term of existence of the instant commission expired on December 31, 2015, and the Defendant succeeded to its jurisdiction pursuant to Article 19(4) of the same Act.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 6, purport of whole pleadings

2. Judgment on the main defense of this case

The defendant asserts that the decision of rejection of this case does not constitute a disposition subject to appeal litigation, and this point is examined.

Article 29 of the Compulsory Mobilization Investigation Act provides that when the Committee has made a decision of dismissal under Article 22, a decision of dismissal under Article 24, etc., it shall serve without delay the original copy of the written decision to the reporter or the applicant, stating the grounds therefor (paragraph (1)) and a person who has received a written decision under paragraph (1) may, if he/she has an objection, file a written application for reexamination with the Committee within 60 days from the date he/she receives the written decision (paragraph (5)) and the subsequent decision of the Committee shall be made within 60 days from

In order to protect the rights of the other party whose rights and interests have been infringed by an administrative disposition, the procedure for a retrial prescribed by the Compulsory Mobilization Act is an objection that is a voluntary procedure for seeking the inventory of an administrative agency prior to the administrative litigation. Meanwhile, Article 19 of the Administrative Litigation Act provides that a revocation lawsuit is subject to a disposition, etc., and that it is limited to a case where the adjudication itself is based on an inherent error in the adjudication itself in the case of a lawsuit seeking cancellation of a ruling. Thus, even in an administrative litigation brought through a retrial procedure, if there is an inherent illegality in the decision of a retrial, not the initial decision on whether to pay consolation money, the revocation of

3. Whether the rejection of this case is legitimate

A. The plaintiff's assertion

The plaintiff et al. selected B as a bereaved family representative to apply for consolation money and support money for outstanding amount as the bereaved family member of the deceased, who is a victim of mobilization by overseas compulsory force. The defendant refused to pay consolation money to the plaintiff on the ground that B does not fall under the bereaved family member of the deceased, although the selected person should decide whether to pay consolation money according to whether the plaintiff et al. constitutes the bereaved family member, the decision of dismissal of this case, which is the premise of the decision of dismissal,

Although the Defendant received a request for review of the rejection decision of this case from the Plaintiff, who is not the other party B, the Defendant immediately rejected the decision of this case without giving the Plaintiff an opportunity to vindicate the grounds therefor or without providing information about the procedure of filing an application for correction. The rejection decision of this case was unlawful as it deprived of the Plaintiff’s right to claim payment, such as the Plaintiff’s consolation money through administrative convenience and unilateral administrative procedure

B. Relevant statutes

It is as shown in the attached Form.

1) Whether the dismissal decision of this case is legitimate

Article 3 (1) of the Compulsory Mobilization Investigation Act provides that "bereaved family members" of this Act refers to those who fall under the spouse, children (title 1), parents (title 2), grandchildren (title 3), brothers and sisters (title 4), and those who are determined as bereaved family members pursuant to subparagraphs 3 and 6 of Article 8 from among the victims of the mobilization by force abroad and those who died or were missing from among the victims of the mobilization by force abroad, and Article 3 (1) provides that the bereaved family members shall have the right to receive consolation money under Article 4 in the order of each subparagraph of paragraph (1).

On the other hand, Article 867 (1) of the former Civil Code (amended by Act No. 3051 of Dec. 31, 1977) provides that "if a family head dies, he/she may select a person after the death only when he/she has no lineal descendant."

As seen earlier, B submitted a letter of designation of the representative of bereaved family members in the name of D, E, F, and G at the time of the instant application. Since the Plaintiff’s name is not indicated in the letter of designation of the representative of bereaved family members, according to each of the evidence Nos. 3, 2, 4, 6, 7, and 10 as to whether B, D, E, F, and G’s grandchildren’s grandchildren falls under the bereaved family members under Article 3(1) of the Compulsory Mobilization Investigation Act, the Deceased was married with J on February 8, 1934, and died on January 8, 1951. At the time, Australia was a head of South Korea, and J adopted L, a child of H on September 11, 1975, and L was married with M&M on April 24, 1969, and became a child of G, B, and C, and C, a child of H on April 24, 1969.

According to the above facts of recognition, the deceased et al. was the mother of Australia around January 8, 1951 where the deceased died and did not have the head of Australia. Thus, even if J adopted L after the death of the deceased, L cannot be deemed the follow-up mother of the deceased. Since L’s children, B, F, G, E, and D are not the grandchildren of the deceased, the dismissal decision of this case is legitimate on the same premise.

2) Whether the decision to dismiss the instant case is lawful

Article 29(5) of the Compulsory Mobilization Investigation Act provides that a person who has received a written decision of dismissal decision, dismissal decision, etc. pursuant to paragraphs (1) and (3) of the same Article may file a written application for review with the commission within 60 days from the date of receipt of the written decision if he/she objects to the decision of dismissal. As seen earlier, since the person who received the decision of dismissal after filing the application of this case and received the decision of dismissal, the decision of rejection that dismissed the plaintiff's request for reexamination on the ground that the plaintiff is not the other party to the decision of dismissal of this case is lawful pursuant to the aforementioned Compulsory Mobilization Investigation Act (the Compulsory Mobilization Investigation Act does not provide that if a person who is not the other party to the decision of dismissal makes a request for reexamination, he/she shall give him/her an opportunity to vindicate or inform the procedures, etc. for filing a request for reexamination without taking such procedure

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.