(영문) 서울행정법원 2014.4.24. 선고 2013구합17824 판결

A. Around July 2005 and July 2005, the representative of the deceased D (hereinafter referred to as the "the deceased") filed an application for the payment of compensation with the defendant, who is a person who performed a special military mission under the Act on the Compensation for Persons of Special Military Missions (hereinafter referred to as the "Act on the Compensation for Persons of Special Military Missions", and the Enforcement Decree and the detailed enforcement rules thereof are referred to as the "Enforcement Decree" and the detailed enforcement rules as follows (hereinafter referred to as the "application of this case"). After that, the deceased died on April 10, 206 (hereinafter referred to as the "applicant"), the deceased was the child of the deceased, A, and B are the deceased's denial (hereinafter referred to as the "Appointed Party") and the Selection B is the plaintiff (hereinafter referred to as the "Plaintiffs") A, C, and B.

A person shall be appointed.

B. On August 29, 2006, the defendant recognized that "the deceased worked in the Air Force Diplomatic Team from June 1952 to March 1953, 1953 on the basis of the special duty performance report, letter of guarantee (E, F) and statement of reference G submitted at the time of the application of this case, "the deceased performed the special duty (such as military installations and military movement) once during the service period of the Ethical dispatch period (from June 1952 to March 1953)," and decided to pay the plaintiffs who are their bereaved family members to pay the sum of KRW 111,238,300 (as a result of the inheritance's share, KRW 47,673,560, the selected parties C and the plaintiff (appointed parties) to pay KRW 31,782,370 each of the above compensation."

C. Since then, the Defendant re-informed the instant compensation decision in which H, an investigator under his jurisdiction, was convicted of having received money and valuables from the applicants for the payment of compensation with the crime of acceptance of bribe by revealing the fact that H received money and valuables.

D. On April 23, 2013, the Defendant revoked the decision to pay each of the plaintiffs' compensation payment and made a decision to recover each of the above compensation already paid (hereinafter referred to as the "disposition of this case") on the ground that the deceased was confirmed as a support personnel who did not perform a special duty in the military intelligence unit.

【Ground of recognition】 The fact that there has been no dispute, Gap 1 through 3, Eul 1 through 4 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) On September 5, 1950, the deceased entered the Air Force and worked in the Information Bureau of the Air Force Headquarters, the special stage, the 90 special stage, the 20 special stage, the 193 special stage, and the franchising team. On September 1950, 1950, the deceased was dispatched as an franchising trainee and received education for special intelligence activities, such as the franchising training, survival training, and escape training for escape, and thus, the disposition of this case that recovered the compensation of this case is unlawful even if he was subject to the education and training related to the special duties under Article 4(2)2 of the Enforcement Decree.

(2) After receiving the above special intelligence education, the Deceased returned to Korea and worked at the Esponor dispatch team, and the instant disposition based on the premise that the Deceased did not perform his special duties is unlawful, as he led authors at the time and carried out intelligence activities by infiltrating at the People’s Forces’s Uniforms.

(3) Even if the content of the letter of guarantee, which served as the basis for the instant decision, and the statement of a witness, are false, the Defendant examined whether the deceased performed a special mission or received a special intelligence education, and requested the bereaved family members to submit new evidence, and provided the bereaved family members with an opportunity to prove the fact that the deceased performed a special mission, but the instant disposition was unlawful without giving such opportunity.

(4) According to Article 17-2 of the Act on the Compensation for Persons who performed Special Military Missions, the decision to pay compensation and the Plaintiff’s consent thereto are deemed to have reached a judicial compromise. This constitutes a compromise contract under the Civil Act. A compromise contract cannot be revoked on the ground of mistake as to disputes which are the object of reconciliation, and the instant disposition that recovered the instant compensation even though it cannot raise an objection against the decision to pay compensation.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(1) At the time of the instant application, G, E, and F’s respective letter of guarantee was attached to G, E, and G’s letter of guarantee is as follows: “I, as the surety, ensure that “I will ensure that I have clearly carried a large number of people who are fluent special personnel at the time of their annual dispatch of the letter of guarantee, and that E’s letter of guarantee was bound by the Air Force A, such as the surety, and that “I will ensure that I will have clearly carried out special activities by being bound to the Air Force A, which would have been bound by a military police officer, and that I have been able to carry out by the time of their service by the time of the flusium.”

(2) However, G, from January 25 to October 31 of the same year, from January 25, 1953 to October 31 of the same year, and from July 1, 1952 to December 22 of the same year, G and the deceased served in the dispatch team at a different time. Nevertheless, the report on the investigation of the instant application was written as if the deceased had worked in the dispatch team at an annual level from June 27, 1952 to March 1, 1953. G pointed out from the Defendant’s witness examination on May 16, 2012 that G transferred the deceased to a different place from that of the deceased, and the content of the personal guarantee for the deceased was well aware, and it was a fact that the deceased was actually investigated as a witness in relation to the instant application, and the report was withdrawn.

(3) On July 25, 2012, E stated that, in the Defendant’s witness investigation, the deceased did not know well and the deceased did not memory.

(4) From April 1952 to March 1953, F served as the dispatch force for the year-to-day service. From July 26, 2012, the Defendant’s witness investigation, the fact that the deceased and Japan received education together with the deceased was revealed, but, as to whether the deceased performed a special duty, it was well aware of whether the deceased performed a special duty.

(5) Meanwhile, from February 1952 to October 10 of the same year, J made a statement to the effect that the principal duty of the dispatch force was conducted by questioning a refugee or a prisoner of war in the course of the Defendant’s investigation into the witness on July 18, 2012, and that it was an act of collecting an intelligence by infiltrating North Korea through investigating the refugee or a prisoner of war, or by educating some of the refugees and collecting an intelligence. Meanwhile, J was dismissed on the grounds that it did not have a lot of applications for compensation in relation to the performance of special duties, on the other hand, since it did not have a lot of applications for compensation.

(6) On August 7, 2012, K worked for the Defendant’s witness inspection from August 7, 2012 to the closure period. At the time, K made a statement to the effect that there was no direct infiltration of the members of the active duty service, despite being escorted to a large range of adjacent areas.

(7) On July 31, 2012, L also made a statement to the effect that the Defendant’s witness investigation performed only the duty of newspaper, etc. at the time of his/her duty at the Ldon Secondment dispatch dispatch team, and that there was no fact of infiltration into a large number of prisoners of war and carried out intelligence activities.

(8) On July 19, 2012, at the time of the Defendant’s request for the examination of the deceased’s bereaved family members, C hospitalized the deceased in the hospital with brain finite, and C dealt with the selected person’s application for compensation instead of the deceased’s application for compensation. The deceased’s friendship appears to have found G and filed an application for compensation through G on the ground that he/she would have found G, and after receiving compensation, he/she paid the amount of money in cash and infinite to G. It is known that G was also prepared by G even with the background leading up to the performance of special duties and personal guarantee.

(9) On February 28, 2012, the investigator H, who was in charge of the instant decision on compensation, was sentenced to the suspension of the execution of 34 million won for 3 years and 8 million won for the acceptance of bribe for 3 years by the crime of acceptance of bribe on the part of the Ministry of National Defense (hereinafter “the Defendant’s investigator received money from the person who performed a special military mission including the instant application”), and received money from the person who performed a special military mission and delivered it to H, and received KRW 2 million from the Plaintiffs in relation to the instant application after the instant decision on compensation.

(10) In addition, G was prosecuted for committing the crime that acquired compensation from the Defendant by means of creating a false personal guarantee after soliciting M and N who did not have worked in the Air Force intelligence unit in collusion with H to file a false application for compensation, and was sentenced to imprisonment for ten months from the High Court of the Republic of Korea (Seoul High Court 235) which was sentenced to imprisonment for January 12, 2013 from the High Court of the Republic of Korea (2013 High Court 235) to the crime such as fraud and the violation of the Act on the Compensation for Persons who performed Special Military Missions, and was sentenced to imprisonment for one year and two months from the High Court of the Republic of Korea (2013 High Court 972).

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 4, Eul evidence 2-1 through 3, Eul evidence 4, Eul evidence 5, Eul evidence 6, Eul evidence 8 through 18 (including paper numbers), and the purport of the whole pleadings

D. Determination

(1) Determination on the first argument

According to Article 2(1)2 of the Act on the Compensation for Persons who performed Special Military Missions and Article 3 subparag. 3 of the Enforcement Decree of the same Act, in order to be recognized as a person who performed a special military mission, the Air Force belongs to the military information unit from May 15, 1951 to August 31, 1971 and should be a person who received special military mission or education and training related thereto. The plaintiffs received intelligence education in Japan around September 1950. Thus, even according to the above assertion itself, the deceased cannot be deemed as a person who performed a special military mission under the Act on the Compensation for Persons who performed Special Military Missions, and the plaintiffs' assertion is without merit.

(2) Judgment on the second argument

Article 18(1) of the Act on the Compensation for Persons who performed Special Military Missions provides that a person who received compensation, etc. by fraud or other improper means shall recover all or part of the compensation, etc. (Article 18(1)) where the person received compensation, etc. by fraud or other improper means (Article 18(1)2) and where the compensation, etc. was erroneously paid (Article 18(2)). In an appeal litigation, the burden of proving the legality of the relevant administrative disposition is, in principle, a disposition agency that claims the lawfulness of the administrative disposition. However, if it is proved to the extent that it can be reasonably acceptable, it is reasonable to deem that the other party bears the burden of proving the exceptional circumstances (see, e.g., Supreme Court en banc Decision 2010Du27639, 27646, Jun. 18, 2012; Supreme Court Decision 2011Du7854, Jan. 10, 2013).

In light of the above legal principles, the following circumstances are revealed: (i) G, E, and F stated that they performed the special duties of the Deceased because they did not work together with the Deceased; (ii) E and F stated that they did not associate with the aforementioned letter of guarantee; (iii) as the investigators of the Defendant did not examine G, the preparation of documents related to the payment of compensation and the application for payment of compensation are primarily in charge of G, and the Plaintiffs did not know about the duties of the Deceased; (iv) the Plaintiffs did not know that they were subject to the above special duties of the deceased; and (v) the Plaintiffs did not know that they were subject to the duty of the Defendant’s collection of compensation information, such as the details of the background leading to the performance of the special duties of the deceased; and (v) the Plaintiffs did not know that they were subject to the duty of information collection, including the fact that they did not know that they were subject to the duty of information collection; and (v) the Plaintiffs did not know that they were subject to the duty of information collection, such as the disclosure of evidence and information collection.

Therefore, since the plaintiffs received compensation from the defendant or paid compensation by false or other unlawful means, the plaintiffs' above assertion is without merit.

(3) Judgment on the third argument

In full view of the purport of the arguments in Eul evidence Nos. 10 through 18, the defendant, when re-auditing the compensation decision of this case, was investigated as a witness of the Appointer C who filed the application of this case as his agent. At the time, the investigator shown the residence list prepared by the Air Force Headquarters, and explained in detail that the contents of each letter of guarantee are false. At the time, the investigator provided an opportunity to make an additional statement in relation to the deceased's performance of his special duties, and C provided an opportunity to make an additional statement about the deceased's performance of duties through his mother. Accordingly, the defendant can be recognized as having investigated the duties other than the personal guarantor of the application of this case against J, K, and L who had worked in the Ethical dispatch team. Thus, the defendant did not examine whether the deceased did not give the plaintiffs an opportunity to state his opinion or whether the deceased performed a special duty before the disposition of this case.

(4) Judgment on the fourth argument

① The purport of Article 17-2 of the Act on the Compensation of Persons of Special Military Missions, which considers that a judicial compromise is established when the applicant consents to the decision on the payment of compensation, is that the person entitled to compensation or the State does not dispute the existence of a civil claim, claim for additional compensation, or claim for refund in the civil procedure. It cannot be viewed that the above provision prohibits the defendant from taking the disposition to recover compensation as an ex officio revocation in the status of an administrative agency pursuant to Article 18 of the Act on the Compensation of Persons of Special Military Missions. ② If the applicant intends to receive compensation pursuant to Article 22 of the Enforcement Decree, consent to the decision on the compensation is inevitably accompanied by the consent to the decision on the compensation and the receipt of compensation results in the failure to take the disposition to recover the compensation for any reason, and ③ Article 18 of the Act on the Compensation of Persons of Special Military Missions has been newly established on September 22, 2006 and Article 17-2 of the Act on the Compensation of Persons of Special Military Missions has no reason to the effect that it remains effective until the amendment of the Act.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.