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헌재 2017. 6. 29. 선고 2015헌마654 공보 [4·16세월호참사 피해구제 및 지원 등을 위한 특별법 제6조 제3항 등 위헌확인]
[공보(제249호)]
Main Issues

A. Whether the constitutional petition for adjudication on a constitutional complaint under Article 15(2) that provides for matters necessary for the procedures for payment of compensation and ex gratia payments and compensation (hereinafter “compensation, etc.”) prescribed by the Presidential Decree, which shall be determined by the Deliberation Committee on Compensation and Compensation for the April 16 Sewol Ferry Disaster (hereinafter “Deliberation Committee”) among the “Special Act on Compensation for Damages and Support, etc. for the April 16 Sewol Ferry Disaster” (amended by Act No. 13115, Jan. 28, 2015; hereinafter “The Support Act for the Sewol Ferry Damage”) shall meet the requirements for direct infringement of fundamental rights (negative)

B. Where an applicant intends to receive compensation, etc., whether Article 15(1) providing that the applicant shall file an application, along with a written consent on the decision to pay the compensation, and whether Article 18 providing that the State’s exercise of the right to claim compensation for damages may infringe on the applicant’s fundamental rights (negative)

C. Whether Article 16 of the Sewol Ferry Damage Support Act, which is deemed to have been achieved by judicial compromise under the Civil Procedure Act between the State and the applicant, infringes on the claimant's right to trial in violation of the principle of excessive prohibition (negative)

D. Whether Article 15 of the Enforcement Decree of the Relief Damage Support Act (amended by Presidential Decree No. 26163, Mar. 27, 2015; Presidential Decree No. 26163, hereinafter “Enforcement Decree of the Sewol Ferry Damage Support Act”) prohibiting all objections in attached Form No. 15, which provides that an applicant who intends to receive compensation, etc. shall submit an application for consent and a claim stating that “I will not raise any objection in any way with respect to the April 16 Sewol ferry disaster,” infringes upon the applicant’s general freedom of action in violation of the principle of statutory reservation (affirmative)

Summary of Decision

(a)Paragraph 3 (the latter part) of article 6 and article 8 of the Sewol Ferry Damage Support Act are scheduled to enforce the decision of the Council on the payment of compensation, etc., and Article 15 of the Sewol Ferry Damage Support Act;

Inasmuch as Article 2(2) stipulates an enforcement act of Presidential Decree, the said Articles in itself do not directly restrict the freedom of petitioners or impose an obligation on them. Therefore, a petition for a trial on the said Articles did not meet the requirements of direct infringement of fundamental rights.

(b)Article 15(1) of the Sewol Ferry Damage Support Act merely provides for a part of the procedures for the victims to exercise their right to compensation on a legitimate basis in accordance with the Sewol Ferry Damage Support Act, and does not affect the legal status of the claimant’s honor. Article 18 of the Sewol Ferry Damage Support Act provides that the State shall first bear the obligation to compensate for damages to the victims for prompt damage, and that the State shall subrogate the applicant’s right to compensation for damages. Therefore, it cannot be deemed that the State is exempt from its responsibility for the Sewol Ferry Damage Support Act. Accordingly, a petition for a trial on the said provisions is not acceptable.

(c)Article 16 of the Sewol Ferry Damage Support Act shall aim at prompt relief from damage caused by the Sewol ferry failure by prompt termination of the payment procedures;

The legislative purpose of the Sewol Ferry Damage Support Act, such as prompt relief of damages and early termination of disputes, can no longer be achieved if the payment of compensation, etc. can be contested again after the receipt of compensation, etc. under the Act on the Support of Damage to the Sewol Ferry. According to the provisions of the Act on the Support of Damage to the Sewol Ferry, the Review Committee recognizes that the third party, neutrality and independence are guaranteed, and the procedures for its review are also in place to enhance fairness and prudence. The Act on the Support of the Sewol Ferry Damage provides for relevant provisions so that adequate compensation and prudence corresponding to the litigation procedures can be achieved. The Act provides for the procedures to inform the applicant of the legal effect of the decision on the payment of compensation, etc., and the applicant has sufficiently considered and reviewed the consent to the decision on the payment of compensation, etc., and freely choose whether to consent to the decision on the payment of compensation, etc.

Article 16 of the Sewol Ferry Damage Support Act recognizes the validity of a judicial compromise in the decision to pay the compensation, etc., which is secured by the decision to pay the compensation, etc., and the public interest, such as prompt conclusion of disputes surrounding the payment of the compensation, etc., which is secured thereby, is difficult to see that it is less than the disadvantage of the applicant, thereby maintaining a balance of legal interests

Therefore, Article 16 of the Sewol Ferry Damage Support Act does not infringe on the claimant's right to trial.

D. The Sewol Ferry Damage Support Act does not have any general provision on effects or obligations after the payment of compensation, etc., or delegates it to subordinate laws or regulations. Therefore, matters that may be prescribed by the Enforcement Decree pursuant to delegation pursuant to Article 15(2) of the Sewol Ferry Damage Support Act are technical and procedural matters concerning the application for payment or payment. Even if it is acknowledged that the applicant has the opportunity to know prior to his/her declaration of consent to the decision on payment, and it is necessary to guide the legal meaning and validity thereof, it cannot be deemed that the applicant was granted the authority to prohibit all objections to the overall Sewol ferry beyond the scope of validity of the consent stipulated in Article 16 of the Act on the Assistance to the Sewol Ferry Damage Support. Accordingly, the prohibition of raising an objection violates the principle of statutory reservation and infringes on the general freedom of action by imposing on the applicants the duty not to raise any objection related to the Sewol ferry.

Dissenting Opinion in Justice Kim Chang-soo and Justice Cho Jong-ho against the prohibition of raising an objection

Even if an applicant consents to the decision of the Deliberative Committee for the payment of compensation, etc. and a judicial compromise is established upon the payment of compensation, it is clear that the effect of the judicial compromise is limited to the "damage, such as damage or loss, etc., caused in connection with the staff of the Sewol ferry," and further, it does not result in failure to ascertain the truth of the staff of the Sewol ferry or request for the punishment of a responsible person, or loss of the right to participate as a victim in the relevant criminal procedure.

Article 15-Attachment 15-Attachment 15-Attachment of the Enforcement Decree of the Act on the Assistance to the Damage Caused by the Sewol ferry (hereinafter “The Act”) provides that “The applicant shall have the same effect as a judicial compromise with the State with respect to the damage, loss, etc. caused by the failure in the Sewol ferry when receiving compensation, etc.,” and includes any indication in the prohibition of raising an objection. Thus, the content should not be reasonably interpreted in relation to the language and text of the former part or separately from it. The State must confirm the meaning and validity of the judicial compromise once again, and it is necessary for the applicant to sufficiently understand and carefully pay attention when submitting a written consent to the decision on the payment of compensation, etc.

Therefore, the prohibition of an objection does not constitute the exercise of public authority that infringes on the basic rights of the claimant.

Documents subject to adjudication;

Part prohibiting all objections in attached Form 15 of the Enforcement Decree of the Special Act on Remedy for Damage Caused by the April 16 Sewol Ferry and Support therefor (Amended by Presidential Decree No. 26163, Mar. 27, 2015); Article 6(3) (the latter part), Articles 8, 15(1) and (2), 16, 18, and 16, 18, and 15 of the Enforcement Decree of the Special Act on Remedy for Damage Caused by the April 16 Sewol Ferry Disaster (Amended by Act No. 1315, Jan. 28, 2015);

[Reference Provisions]

Articles 1, 2 subparag. 3 (b), 6 (1) and (2), 10, 12, and 15 (3) of the Special Act on Remedy for Damage Caused by the April 16 Sewol Ferry Disaster (Amended by Act No. 13115, Jan. 28, 2015);

Article 16 of the Enforcement Decree of the Special Act on Remedy for Damage and Support for the April 16 Sewol Ferry Disaster (Amended by Presidential Decree No. 26163, Mar. 27, 2015) Article 16

Reference Cases

A. Constitutional Court Decision 4, 813, 823Hun-Ma93, Sept. 25, 2003; Supreme Court Decision 15-2, 319, 350-351 (Hun-Ma582, Feb. 28, 2008; Supreme Court Decision 2006Hun-Ma582, Feb. 28, 2008; Supreme Court Decision 200-1Sang, 305, 308-309, 308-309

B. Constitutional Court Decision 201HunMa166 decided November 28, 2013; Supreme Court Decision 25-2Ha, 559, 561

C. Constitutional Court Decision 91Hun-Ga7 dated May 25, 1995, Supreme Court Decision 7-1, 598, 608-609

D. Constitutional Court Decision 2006Hun-Ma1322 on April 30, 2009; Supreme Court Decision 21-1Ha, 246, 264Hun-Ma139, May 31, 2012; Supreme Court Decision 24-1Ha, 595, 612

Parties

[Defendant-Appellant] Kim Dong-young et al. and 10 attorneys-at-law in charge of Lee & Lee, et al.

Text

1. Article 15 of the Enforcement Decree of the Special Act on Remedying for Damage Caused by the April 16 Sewol Ferry Disaster (amended by Presidential Decree No. 26163, Mar. 27, 2015) of the attached Form 15 that “I swear that I will not raise any objection in any way with respect to the April 16 Sewol Ferry Disaster” is in violation of the Constitution.

2. The appeal filed under Article 16 of the Special Act on Remedy for Damage and Support for the April 16 Sewol Ferry Disaster (Amended by Act No. 13115, Jan. 28, 2015) is dismissed.

3. All remaining appeals by petitioners shall be dismissed;

Reasons

1. Summary of the case;

On April 16, 2014, the petitioners are parents of the deceased who died on board a ship returned at the sea of 1.8 nautical miles in Jindo-gun, Jindo-do. The Special Act on Remedies for Damage Caused by the April 16 Sewol Ferry Disaster and on Support therefor (amended by Act No. 13115, Jan. 28, 2015; hereinafter “the Sewol Ferry Support Act”) was enacted to commemorate those who have sacrificed from the Sewol ferry disaster and to promote community recovery in the affected area by providing prompt relief for damage and psychological stability. The petitioners asserted that the petitioners filed a petition for adjudication on constitutional complaint against the infringement of fundamental rights of the petitioners under the latter part of Article 6(3), Articles 8, 15(1) and (2), 16, and 18 of the Sewol Ferry Disaster Support Act, and Article 15 of the Enforcement Decree thereof and Article 15 of the Enforcement Decree thereof.

2. Object of adjudication;

The purport of Article 15 and the attached Form 15 of the Enforcement Decree of the Act on the Support for Damage Caused by the Sewol Ferry shall be that the part requesting adjudication on constitutional complaint shall not be raised in connection with the Sewol ferry disaster if the claimant files an application for payment of compensation, etc. is unconstitutional. This is limited to part of the attached Form 15, and therefore, the object of adjudication shall be limited to the part concerning objection among the attached Form 15 under Article 15 of the Enforcement Decree of the Act.

The subject of the instant adjudication is whether the part prohibiting all objections in the attached Form 15 of Article 6(3) (the latter part), Articles 8, 15(1) and (2), 16, and 18 of the Sewol Ferry Damage Support Act, Article 15 of the Enforcement Decree thereof (amended by Presidential Decree No. 26163, Mar. 27, 2015; Presidential Decree No. 26163, “the Enforcement Decree of the Sewol Ferry Damage Support Act”) infringes on the basic rights of the petitioners, and the contents of the subject of the adjudication are as follows.

【Provisions Subject to Adjudication】

Periodical 4/16 Sewol ferry disaster Special Act for Remedy for Damage and Support, etc. ( enacted by Act No. 13115, Jan. 28, 2015)

Article 6 (Persons Eligible for Compensation for Damages and Ex gratias) (3) The State shall ensure that ex gratias are paid to victims (including the amount determined to be paid to each victim pursuant to relevant Acts among the financial resources created in connection with the April 16 Sewol ferry disaster). Specific matters, such as the criteria and procedures for paying ex gratias shall be determined by the Deliberative Committee in consideration of the relationship with victims, the degree of damage, the circumstances actually raised, the fulfillment of support obligation, etc.

Article 8 (Deliberation, Resolution, etc. by Deliberation Committee) (1) The Deliberation Committee shall deliberate and resolve on the following matters:

1. Matters concerning compensation, compensation, etc. under Articles 6 and 7;

2. Matters concerning temporary payment under Article 17;

3. Other matters which the Deliberation Committee deems necessary.

(2) The Deliberative Committee shall be comprised of not more than 15 members, including one chairperson, and members shall be commissioned or appointed by the Prime Minister from among the following persons. In such cases, members falling under subparagraph 1 or 2 shall be at least 1/5 of the fixed number of members, respectively:

1. Judges recommended by the Minister of National Court Administration;

2. A person recommended by the President of the Korean Bar Association under Article 78 of the Attorney-at-Law Act, among attorneys-at-law;

3. Public officials or public officials belonging to the Ministry of Strategy and Finance, the Ministry of Education, the Ministry of Justice, the Ministry of Health and Welfare, and the Ministry

4. A person with extensive knowledge and experience in the relevant area, such as the affairs of compensation and indemnity.

(3) The Chairperson shall be appointed by the Prime Minister from among members.

(4) The Deliberative Committee may establish a supporting organization for the verification of facts necessary for deliberation and resolution under paragraph (1), the collection and review of related data, etc.

(5) Matters necessary for the organization and operation of the Deliberative Committee other than those prescribed in paragraphs (1) through (4) shall be prescribed by Presidential Decree.

Article 15 (Applicant's Consent, Payment of Compensation, etc.) (1) Where an applicant who is served an original copy of the written decision on compensation or ex gratia payments intends to receive compensation or ex gratia payments, he/she shall apply for payment to the Deliberative Committee along with the written consent of the decision.

(2) Except as otherwise expressly provided for in paragraph (1), matters necessary for procedures, etc. for the payment of compensation and ex gratia payments shall be prescribed by Presidential Decree.

Article 16 (Effect of Consent to Decision on Payment) Where the applicant consents to the determination of compensation or ex gratia payments by the Deliberative Committee, a judicial compromise under the Civil Procedure Act shall be deemed reached between the State and the applicant.

Article 18 (Vicarious Exercise, etc. of Right to Claim Compensation by the State) The State shall subrogate the applicant's right to claim compensation for damages to any person other than the State within the extent of the amount paid to the applicant according to the decision to pay under Article 1

Enforcement Decree of the Special Act on Remedy for Damage and Support for the April 16 Sewol Ferry Disaster (Amended by Presidential Decree No. 26163, Mar. 27, 2015)

An applicant who intends to receive compensation, etc. pursuant to Article 15 (Consent and Request for Payment) (1) of the Act shall submit a certificate of personal seal impression (referring to a certificate of personal signature where such applicant has signed) to the consent and written application for compensation, etc. in attached Form 15 and a copy of the deposit account account, such as compensation, etc. to the Review Committee.

(1) The receipt number: The date of receipt: 30 days: the date of receipt: the applicant consents to the determination of compensation for damages and support for the April 16 Sewol ferry disaster ([Attachment Form 15] under Article 12 of the Special Act on Remedies for Damage and Support for the April 16 Sewol Ferry Disaster ([[[Attachment] the determination of temporary payment] and [Attachment Form 15]. 2] The applicant shall be appointed as a representative of the Deliberative Committee on Compensation for Damages and the date of birth (including notification of authority pursuant to Articles 480 (2) and 450 of the Civil Act]. The applicant shall be appointed as a representative of the Deliberative Committee on Compensation for Damages and the date of birth on behalf of the State. (2) The applicant shall have the authority to request compensation for damages to a person other than the State or to request for temporary payment of compensation: The date of birth on behalf of the State. (3) The applicant shall have the same authority as the date of settlement and the date of birth on behalf of the State.

3. The claimant's assertion

(a) The latter part of Article 6 (3) and Article 8 of the Support for the Damage Caused by Sewol Ferry;

Since the issue of paying ex officio subsidies, etc. to victims of the Sewol ferry disaster is an essential and important issue related to state compensation claims, property rights, etc., it is in violation of the principle of statutory reservation that the above provisions shall be prescribed by the Compensation and Compensation Deliberation Committee for the April 16 Sewol Ferry Disaster (hereinafter “Deliberation Committee”) even though the legislators directly determine the criteria, amount, and amount of such subsidies, etc.

(b) Article 15 (1) of the Support for the Damage Caused by Sewol Ferry;

This article, without asking the State's responsibility for the Sewol ferry disaster, requires the applicant to apply for the payment of compensation or ex gratia payments and compensation (hereinafter "compensation, etc.") along with a written consent to the decision, thereby infringing the applicant's personal rights or honorary rights by granting an unrefluent increase that the claimant should take for the life of the victim of the Sewol ferry disaster.

(c) Article 15 (2) of the Support for the Damage Caused by Sewol Ferry;

This provision, which delegates matters necessary for the procedures for the payment of compensation, etc. to Presidential Decree, is in violation of the principle of prohibition of comprehensive delegation of Article 75 of the Constitution by delegating the Presidential Decree without providing the core and important matters concerning compensation and compensation, such as the content and type of damage, and the calculation standards

(d) Article 16 of the Support for the Damage Caused by Sewol Ferry;

If it is deemed that a judicial compromise has been established at the time of the decision of the Deliberation Committee pursuant to this article, even if the damage is found later, it can no longer be disputed by a trial, so it infringes the claimant's right to trial, property right, and right to claim state compensation.

(e) Article 18 of the Support for the Damage Caused by Sewol Ferry;

This provision, which stipulates the subrogation of the state's right to claim damages, is in violation of the principle of self-responsibility by transferring all the responsibilities to a third party as if they were not legally responsible.

F. All of the attached Form 15 of Article 15 of the Enforcement Decree of the Act on the Support for the Damage Caused by Sewol Ferry was prohibited.

This provision, which provides for the submission of written consents to “a commitment not to raise any objection to the Sewol ferry disaster,” goes beyond the limit of the delegated legislation, and infringes upon the claimant’s right to request a trial, right to express, and right to property.

4. Determination on the lawful requirements

(a) A request for a trial under the latter part of Article 6 (3), Articles 8 and 15 (2) of the Support for the Damage Caused by Sewol Ferry Act;

If a statutory provision itself intends to become the subject of a constitutional complaint, the restriction of freedom, imposition of obligations, rights, or deprivation of legal status under the statutory provision itself, without waiting for a specific enforcement act, must be caused by the statutory provision itself. As such, “specific enforcement act” as referred to in this context includes legislation, in a case where a certain statutory provision plans to enforce subordinate regulations in order to embody that provision, the direct nature of infringement of fundamental rights due to the pertinent statutory provision is denied (see, e.g., Supreme Court Decision 91Hun-Ma192, Nov. 12, 1992; 2001Hun-Ma93, Sept. 25, 2003).

Article 6(3) latter part of Article 6(3) and Article 8 of the Act on the Assistance to the Sewol Ferry Damage, which stipulate matters concerning the deliberation and resolution of the Deliberative Committee and the organization and operation of the Deliberative Committee, are scheduled to implement a decision of the Deliberative Committee on the payment of compensation, etc. Therefore, it cannot be deemed that the latter part of Article 6(3) and Article 8 directly restrict the freedom of applicants or impose an obligation, and it is also difficult to deem that the applicant is deprived of his/her rights or legal status. In addition, Article 15(2) of the Act on the Assistance to the Sewol ferry Damage, which provides for matters necessary for the procedures for the payment of compensation, etc., plans the enforcement of Presidential Decree, and therefore, it is difficult to deem that Article

This part of a petition for a trial is unlawful because it does not meet the direct requirements for infringement of fundamental rights.

(b) A request for a trial under Articles 15 (1) and 18 of the Support for the Damage Caused by Sewol Ferry;

In order to file a constitutional complaint on the grounds of infringement of fundamental rights due to statutes, the restriction of freedom, imposition of obligations, or deprivation of rights or legal status under the relevant statutes itself. If a statutory provision does not affect the legal status of the person who wishes to file a constitutional complaint, it is not allowed to file a constitutional complaint on the grounds that there is no possibility of infringement of fundamental rights or there is no risk of infringement of fundamental rights (see, e.g., Supreme Court Decision 2006Hun-Ma582, Feb. 28, 2008; 201Hun-Ma166, Nov. 28, 2013).

The petitioners asserts that Article 15(1) of the Act on the Support for Damage Caused by the Sewol Ferry Disaster is unconstitutional since it can give an influence to the petitioners. However, the Act on the Support for Damage Caused by the Sewol Ferry was established to commemorate persons who have made a sacrifice as a result of the Sewol Ferry Disaster and to promote community recovery through prompt relief and assistance such as physical, mental, and economic stability (Article 1). Specifically, the Act on the Support for Damage Caused by the Sewol Ferry Disaster was established to ensure the payment of compensation, etc. to victims (Articles 6 and 7), and measures to support the recovery of damage.

The article 20 (Article 20) is prepared.

In full view of the legislative purpose and contents of the Act on the Support for Damage Caused by the Sewol Ferry, it is difficult to view that the victims and victims of the Sewol ferry are subject to a negative assessment solely on the fact that an application for the payment of compensation is filed. Article 15(1) of the Act on the Support for Damage Caused by the Sewol ferry merely provides that an application for payment of compensation, etc. shall be filed along with a written consent to a decision on the payment of compensation, etc., and such provision does not mean that the victim who files an application for the payment of compensation, etc. may not be evaluated as a person who seeks compensation, etc. in return for the life of the victims of the Sewol ferry and thus undermine honor. This provision is merely a part of the procedure that the victims properly exercise their right to claim State compensation under the Act on the Support for Damage Caused by the Sewol Ferry. Accordingly, Article 15(1) of the Act on

On the other hand, the claimant asserts that Article 18 of the Act on the Assistance for the Sewol Ferry Damage states that it is unconstitutional because the State has raised the same as that without any legal responsibility with respect to the Sewol ferry disaster. However, the Act on the Assistance for the Sewol Ferry Damage imposes an obligation on the State to pay damages first to the victim for prompt damage relief, and further allows the State to exercise a right to claim damages or exercise a right to claim damages on the person responsible for the Sewol ferry disaster by subrogation within the limit of the amount paid to the victim. The State’s exercise a right to claim damages by subrogation cannot be deemed as exempting the State from liability for the Sewol ferry disaster. Article 18 of the Act on the Assistance for the Sewol Ferry Damage cannot be deemed as denying the State’s liability for damages.

This part of a request for a trial is unlawful as the possibility of infringement on fundamental rights is not recognized.

5. Judgment on the merits

A. Determination as to Article 16 of the Support for the Damage Caused by the Sewol Ferry Act

(1) Organization of issues

Where an applicant consents to a decision of the Deliberation Committee on the payment of compensation, etc., a judicial compromise under the Civil Procedure Act shall be deemed to have been made between the State and the applicant pursuant to Article 16 of the Support of Damage Act (hereinafter “the legal provisions of this case”). Since judicial compromise has the same effect as a final and conclusive judgment, where the applicant consents to the decision of the payment of compensation, etc. once he/she has agreed to the decision of the Deliberation Committee, he/she may not contest its effect without resorting to a retrial unless there is a ground for invalidation as a result of the consent. Therefore, the legal provisions of this case restrict the applicant in filing a lawsuit on the payment of compensation, etc. by granting the same effect as the judicial compromise to the decision of the Deliberation Committee that the applicant consented to the decision of the Deliberation Committee that the applicant consented to the decision of the Deliberation Committee, thereby restricting the applicant’s right to claim a trial under Article 27 of the Constitution (see Constitutional Court Decision 91Hun-Ga7, May 25,

The claimant asserts that the legal provisions of this case infringe the claimant's property rights and the state compensation right. However, this argument is identical to the assertion of infringement of the right to trial due to the unconstitutional argument as to the fact that a judicial compromise is deemed to have been achieved pursuant to the legal provisions of this case, and thus the decision on the payment of compensation, etc. cannot be raised any longer. Accordingly, this part of the assertion is not separately

(2) Appropriateness of the legitimacy and means of legislative purpose

The Act on the Support for Damage Caused by the Sewol Ferry was established for the purpose of prompt relief from damage caused by the Sewol ferry disaster, and the State first paid compensation, etc. to the victim by a simple method other than a lawsuit, and then prepared a means of exercising the right to indemnity, etc. to other responsible persons than the State. The legal provision of this case is a provision that allows the applicant to promptly terminate the payment procedures and pay compensation, etc. by granting the same effect as the judicial reconciliation if the applicant consented to the decision on the payment of compensation, etc.

(3) The minimum extent of the infringement

In order to promptly remedy for damages and promptly settle a dispute so that victims can return to a stable daily life, there is a need to leave the legal dispute surrounding the compensation, etc. The legal provisions of this case provide that if a written consent is submitted through the payment procedure of compensation, etc. and the compensation, etc. is paid, the judicial compromise cannot be asserted as a lawsuit. If the legal provisions of this case allow the legal dispute again with the payment of compensation, etc. in accordance with the Act on the Assistance to the Damage to the Sewol Ferry, the legislative purpose such as prompt remedy for damages and early termination of disputes aimed at the Act on the Assistance to the Damage to the Sewol Ferry cannot be achieved.

On the other hand, the Deliberative Committee shall be established under the jurisdiction of the Prime Minister, and not more than 15 members, including one chairperson who constitutes the Committee, shall be commissioned or appointed by the Prime Minister from among judges, attorneys-at-law, senior public officials, or experts in the field of inspection and inspection, and shall be appointed by the Chairman of the Committee from among the members (Article 8). The Deliberative Committee actually consists of three judges, three attorneys-at-law, senior public officials, six public officials, three experts, and three experts. The Act on the Assistance to the Damage to the Sewol Ferry has special relationship with the agenda to be deliberated by the members of the Deliberative Committee on

In addition, the Prime Minister’s authority to direct and supervise the Prime Minister’s deliberation committee is not provided for in Article 8(5). In full view of these provisions, it is recognized that the Review Committee’s third party, neutrality, and independence are guaranteed, and a system is prepared to ensure fairness in deliberation.

In addition, Article 6 (1) 1 of the Act on the Assistance to the Sewol ferry Damage stipulates that the compensation shall be the compensation under the relevant laws such as the Civil Act and the State Compensation Act so that adequate compensation corresponding to the damage can be made.In order to accurately calculate such compensation, expertise and technical nature is required. Therefore, it is necessary to ensure that the number of members of the Deliberation Committee shall be more than 1/5 of the full number of members of the committee (Article 8 (2)), and the participation of experts in the deliberation on the compensation for damages shall be guaranteed.

An applicant may state his/her opinion on the amount of compensation, etc. in the deliberation procedure of the Deliberative Committee (Article 11); the Deliberative Committee may request the applicant to supplement the relevant documents, etc. after receiving an application by the applicant along with evidentiary documents on the application for compensation (Article 10(1)); thus, the relevant party’s participation is guaranteed in the deliberation procedure. Furthermore, the Deliberative Committee shall determine whether to pay compensation and the amount thereof within 120 days from the date of receipt of the application; however, it shall ensure that the period may be extended by up to 30 days from the date of receipt of the application, but it shall be extended by the Deliberative Committee for prompt remedy for damages (Article 12), and an appropriate deliberation period is guaranteed while promoting prompt remedy for damages. An applicant who has an objection to the decision on the payment of compensation by the Deliberative Committee may file an application for reexamination with the Deliberative Committee within 30 days from the date of delivery of an authentic copy of the written decision (Article 14)

In addition, the applicant shall, within one year from the date of receiving the original copy of the written decision on payment, including the consent to the payment of compensation, etc., ensure the time of review (Article 15(3)). In addition, where the applicant does not consent to the decision of the Deliberation Committee on the payment of compensation, he/she may claim direct compensation, and thus, he/she may freely choose whether to consent to the decision on the payment of compensation, etc... In addition, the applicant may freely choose whether to consent to the decision on the payment of compensation, etc. under the Civil Procedure Act, under the premise that the applicant consents to the decision on the payment of compensation, etc. is to establish a judicial compromise in accordance with the Civil Procedure Act

Since the Sewol Ferry Damage Support Act has sufficient institutional devices to receive compensation corresponding to damage, it is difficult to view that judicial compromise has been established even if it is considered that a judicial compromise has been established when the Deliberation Committee consents to the decision of payment such as compensation, etc.

(4) Balance of legal interests

It is difficult to view that the legal provision of this case is less than the disadvantage of the applicant due to the prompt termination of disputes surrounding the payment of compensation, etc., which is secured by recognizing the judicial effect in the decision of payment, and the public interest, such as speediness, etc. of damage relief secured thereby, is smaller than that of the applicant.

(5) Conclusion

The legal provisions of this case make it difficult to dispute the validity of the legal provisions without recourse to the litigation for retrial, unless there is a ground for invalidation in the process of consent to the decision on the payment of compensation, etc. due to the legal provisions of this case.

B. Determination as to the enforcement decree provision

(1) Issues

Article 15 of the Enforcement Decree of the Sewol ferry Damage Support Act provides that an applicant who intends to receive compensation, etc. shall submit an application for consent to and a claim for compensation, etc. under attached Form 15. However, the attached Form 15 provides that the applicant shall have the same effect as the State and a judicial compromise upon receipt of compensation, etc., and provides that “I swear that no objection is raised in any way with respect to the April 16 Sewol ferry disaster.” This part of the Enforcement Decree is merely the mere confirmation of the same content as Article 16 of the Act on the Relief and Relief of Damage in the Sewol ferry. If it is deemed that this part of the Enforcement Decree is merely the mere confirmation of the same as Article 16 of the same Act, this part

However, Article 15 of the Enforcement Decree provides that "I swear that I will not raise any objection in any way with respect to the April 16 Sewol ferry disaster" beyond the expression that I consent to the fact that the compensation, etc. has the same effect as a judicial compromise in the case of receiving compensation, etc. among the attached Form 15 (hereinafter "Objection Clause") is difficult to conclude that the detailed expression is arbitrarily added from the Enforcement Decree of the Act on the Support for the Sewol Ferry Damage that does not have any effect. It is difficult to conclude that this part of the Act is an infinite statement with no legal effect. The applicants claim that the objection clause can be interpreted as not allowing all issues, including the fact-finding of the Sewol ferry disaster and the demand for punishment of responsible persons, or the participation of victims in relevant criminal proceedings.

Except in extenuating circumstances, an application for the payment of compensation, etc. under the Act on the Support for Damage Caused by the Sewol Ferry shall be filed by September 28, 2015, within six months after the enforcement of the Act, unless there is a special reason (Article 10(2)). However, an application for the payment of compensation, etc. under this Act was filed by no later than May 2016 among 461 victims of the Sewol ferry disaster (304 victims and 157 survivors), 208 victims and 140 survivors, and the remaining 113 victims did not file an application for the payment of compensation, etc. In addition, the number of cases where the application for the payment of compensation, etc. was not filed even after the decision on the payment of compensation, etc. was made. Although the Act on the Support for Damage Caused by the Sewol Ferry seeks prompt relief no less favorable to the victims, failure to file an application for the payment of compensation, etc. may be deemed as having a concern that there is no concern about any problems associated with the Sewol ferry disaster.

The petitioners claim that the freedom of expression is limited due to the statement that they do not raise any objection. Even if the content stated in this part is limited, it cannot be denied that at least the freedom of general action of the petitioners is limited, even if it is interpreted in a limited manner. The provision of the Enforcement Decree of the instant case, which compels the preparation of a written consent by arbitrarily adding non-legal expressions, is a legally meaningful provision, and the petitioners’ assertion that appeals against the restriction of fundamental rights under this provision cannot be disregarded.

In the event that this part becomes a judicial problem, the final interpretation is the share of the court, and the court is able to interpret this part as a legally meaningful entry. However, the general freedom of action of the petitioners, which is limited by the enforcement decree of this case, is the right of the court to decide their own will in daily life before interpreting this provision at the trial stage and to perform the act accordingly. Therefore, it is possible to interpret this provision at the trial stage as being without any legal binding force, and thus, it cannot be said that the exercise of public authority that restricts the petitioners’ freedom of action is not possible. In addition to the constitutional complaint, there is no way to dispute the restriction on the right of freedom. Therefore, the enforcement decree of this case should be seen as the exercise of public authority that is the subject of constitutional

(2) Whether the principle of statutory reservation was violated

The fundamental rights of the people may be limited to cases necessary for national security, the maintenance of order, or the public welfare pursuant to Article 37(2) of the Constitution, but the method of such restriction is possible only by law in principle. The principle of statutory reservation relating to the restriction of fundamental rights is a request for “regulation based on law.” As such, even if such form does not necessarily require law, there must be a legal basis. Therefore, subordinate statutes beyond the scope of delegation by the mother law are in violation of the principle of statutory reservation (see, e.g., Constitutional Court Decision 2010Hun-Ma139, May 31, 2012).

Article 15(1) of the Act on the Assistance for the Sewol Ferry Loss stipulates that when a person intends to receive compensation, etc. after a decision of the Deliberative Committee is made to pay compensation, etc., he/she shall submit a written consent to the decision to the Deliberative Committee (Article 15(1)) and that where such consent is given, the establishment of judicial compromise under the Civil Procedure Act between the State and the applicant is deemed legal fiction (Article 16). There is no general provision on the effects or obligations after the payment of compensation, etc., nor any delegation to subordinate statutes. Article 15(2) of the Act on the Assistance for the Sewol ferry Loss delegates the Presidential Decree with regard to “matters necessary for the procedures for the payment of compensation, etc., in addition to the matters prescribed in paragraph (1) of the same Article.” As such, the matters prescribed by the Enforcement Decree shall be accompanied by a written consent at the time of application for payment, that is, documents, written and procedural matters concerning the application for payment or payment, such as documents, written request form, submission institution, compensation, etc. to be submitted at the time of application for payment.

Where an applicant has consented to the decision on the payment of compensation, etc., a judicial compromise under the Civil Procedure Act is deemed to have been formed, and res judicata has occurred as to the damage caused by the Sewol ferry disaster between the parties. As such, the applicant need to guarantee an opportunity to fully understand the decision on the payment of compensation before the applicant expresses his/her intent to consent to the decision on the payment of compensation, and the legal meaning and validity of the consent to the decision on the payment of compensation is recognized. However, even in this case, it is not deemed that the applicant has been granted the authority to prohibit all objections regarding the overall Sewol ferry disaster beyond the effective scope of consent under Article 16 of the

Therefore, the prohibition of raising an objection violates the principle of statutory reservation of restriction on fundamental rights and infringes on the freedom of general action by imposing upon the claimant the duty to prohibit all complaints related to the Sewol ferry disaster without any legal basis.

6. Conclusion

The prohibition of raising an objection is in violation of the Constitution, and the prohibition of raising an objection does not violate the Constitution, and the rest of the petitioners.

All of the appeals are unlawful and decided as per Disposition. This decision is in accordance with the majority opinion of all participating Justices, except there is a dissenting opinion by Justice Kim Chang-soo and Justice Cho Yong-ho as to the prohibition of objection as set forth in the following 7.

7. Dissenting Opinion in relation to the prohibition of raising an objection against Justice Kim Chang-soo and Justice Cho Jae-ho

We think that the prohibition clause of raising an objection does not constitute the exercise of public authority, which is a new infringement of the basic rights of the claimant, and therefore, it is reasonable to dismiss the appeal.

A. The meaning of “exercise of public power” subject to constitutional complaint

Article 68(1) of the Constitutional Court Act provides that an adjudication on constitutional complaint under Article 68(1) may be filed only by a person whose fundamental rights guaranteed by the Constitution are infringed due to the exercise or non-exercise of the public authority, and thus, the subject of the constitutional complaint is limited to the exercise or non-exercise of the public authority that infringes on fundamental rights. In particular, an exercise of the public authority is to be subject to a constitutional complaint, and the exercise of other public authority has already existed prior to the exercise of the public authority, and the exercise of the public authority has only a confirmative meaning as the exercise of the preceding public authority, and the exercise of the public authority does not result in any change in the exercise of the preceding public authority (see, e.g., Constitutional Court Decision 97Hun-Ma317, Dec. 19, 1997; Constitutional Court Decision 200Hun-Ma173, Sept. 27, 2001).

(b) Validity and scope of consent to the decision of the Deliberative Committee on payment;

Article 15(1) of the Sewol ferry Support Act provides that when an applicant who has been served an original copy of the decision of the Deliberative Committee on the payment of compensation, etc. intends to receive compensation, etc., the applicant shall apply to the Deliberative Committee for payment along with a written consent to the decision. The legal provision of this case provides that when the applicant consents to the decision of the Deliberative Committee on the payment of compensation, etc., a judicial compromise under the Civil Procedure

Therefore, if an applicant consents to the decision of the Deliberative Committee and receives compensation, etc., it shall have the same effect as a final and conclusive judgment after a judicial compromise is established. Therefore, the validity shall not be contested unless there exists a cause of invalidation as a matter of course in the consent or the cancellation or change by a litigation for retrial.

In addition, the Act on the Assistance to the Damage of the Sewol ferry aims to promptly remedy for damage to a person who has suffered physical, mental, or economic damage due to the Sewol ferry (Article 1). The decision to pay compensation, etc. subject to consent is based on the Civil Act, the State Compensation Act, and other relevant Acts and subordinate statutes (Article 6). The State shall subrogate the applicant’s right to claim damages to a person other than the State within the extent of the amount paid to the applicant (Article 18). The scope of the effect of judicial compromise is limited to the matters on which the parties have agreed to each other by concession, and it does not take effect with respect to the matters which have not been claimed by the parties as well as those which have not been understood on the premise of compromise (see, e.g., Supreme Court Decisions 9Da17319, Apr. 27, 2001; 2009Da90856, Jul. 28, 2011).

C. Interpretation of the prohibition clause against objection and recognition of the exercise of public authority

The prohibition of an objection is merely a phrase that emphasizes and confirms the meaning and validity of a judicial compromise established by the legal provision of this case once again, and it cannot be viewed as limiting the freedom of general action of the petitioners as the majority opinion. The reasons are as follows.

(1) Interpretation of a juristic act is clearly binding upon the objective meaning that the parties gave to the act of representation. The objective meaning that the parties gave to the act of representation must be reasonably interpreted in writing. In a case where the objective meaning is not clearly expressed by the language and text expressed by the parties, it shall be reasonably interpreted in accordance with logical and empirical rules, general common sense, and transaction norms so that it conforms to the ideology of social justice and equity by comprehensively taking into account the contents of the language and text, the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the said juristic act, and transaction practices, etc. In a case where the objective meaning is not clearly expressed by the language and text expressed by the parties concerned, it shall be reasonably interpreted in accordance with the principles of logic and experience, common sense, and transaction norms (see, e.g., Supreme Court Decisions 2004Da6065, May 27, 2005; 2012Da9825, Feb.

The same shall apply to the interpretation of the prohibition of raising an objection contained in the "agreement and claim, such as gold,"

(2) According to the attached Form No. 15 of Article 15 of the Enforcement Decree of the Act on the Support for Damage Caused by the Sewol Ferry, the applicant agrees to the effect that the State has a judicial compromise with respect to the damage, loss, etc. caused by the participation in the April 16 Sewol ferry when receiving compensation, etc., and promptly adds the prohibition clause of raising an objection to the latter part of Article 15 of the Enforcement Decree of the Act on the Support for Damage Caused by the Sewol Ferry (hereinafter referred to as "the applicant agrees to the prohibition clause on raising an objection to no objection in any way with respect to the participation in the April 16 Sewol ferry). As such, the reasonable interpretation of the objective meaning in relation to the former part of Article 15-15 of the Enforcement Decree of the Act on the Support for Damage Caused by the Sewol Ferry shall conform to the parties' genuine intent or experience, the common sense of society, etc., and shall not be interpreted as having an independent meaning that is not superior to this, as in the Majority Opinion.

(3) If the applicant consents to the decision on the payment of compensation, etc., a judicial compromise is established and the damage or loss suffered in connection with the Sewol ferry can no longer be contested, but the State may prevent the damage by the consent of the applicant through a strong consent. As such, the State needs to faithfully explain or inform the applicant about the meaning and validity of the judicial compromise, and thereby preventing new disputes surrounding the validity of the consent to the decision on the payment of compensation.

In full view of these facts, it is necessary to confirm the meaning and effect of judicial compromise once again to the applicant, and to ensure that the applicant is fully aware and careful when submitting a written consent to the decision of payment.

As such, the prohibition of objection merely has the meaning of explaining and verifying the meaning and validity of the judicial compromise established by the legal provision of this case to the applicant. Therefore, the prohibition of objection is merely limited to the same content as the legal provision of this case, and it does not result in a new restriction on the freedom of general behavior of the applicants as seen by the majority opinion.

D. Conclusion

As a result, the prohibition of raising an objection does not fall under the exercise of public power under Article 68(1) of the Constitutional Court Act which newly infringes on the basic rights of the claimant, so the claimant's appeal against it should be dismissed in an unlawful manner.

Judges

Justices Kim Jong-soo Kim Chang-sung (it is impossible to affix an administrative digital signature on overseas business trip) and Lee Jong-ho and Lee Jong-won's Lee Jong-sung

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