Relationship between the claim for consolation money under the State Compensation Act and the claim for survivors' pension under the Military Relief Benefits Act; and

Since the claim for consolation money under the State Compensation Act and the claim for survivor's pension under the Military Aid Benefit Act are in conflict with each other, if the victim has already been paid a consolation money of KRW 100,000 by means of a lawsuit under the State Compensation Act, even if the total amount of survivor's pension under the Military Aid Benefit Act exceeds the above amount received by the lawsuit as 165,000 won, the victim may not claim payment of such excess amount.

Supreme Court Decision 68Da602 Decided June 18, 1968 Supreme Court Decision 67Da2825 Decided July 2, 1968

[Defendant-Appellee] Defendant 1

Korea

Gwangju District Court Decision 76Na73 delivered on May 26, 1977

The part of the judgment of the court below against the defendant shall be reversed and remanded to the Gwangju District Court Panel Division.

The grounds of appeal by the defendant litigation performer are examined.

According to the reasoning of the judgment of the court below, on the ground that the death of the deceased non-party, who is the plaintiff's son, was caused by the negligence in the performance of other public officials' duties, the court below acknowledged that the plaintiff had already received KRW 100,000 from the defendant after obtaining a final judgment that the plaintiff shall pay 100,000 won as consolation money for the plaintiff's deceased, and that the plaintiff's total amount of the survivor's pension that the plaintiff is entitled to receive from the defendant under the Military Aid Benefits Act from July 1972 to March 31, 1976, the plaintiff's claim for payment of consolation money for the plaintiff's bereaved family under the State Compensation Act from Busan District Court in around 1971, the plaintiff filed a lawsuit against the defendant with Busan District Court in accordance with the State Compensation Act. The above survivor's amount of consolation money for the plaintiff's bereaved family, which is the above 165,000 won, was deducted from the above amount of consolation money for the plaintiff's family.

However, as the court below judged lawfully, the survivor's pension under the above Military Aid Benefit Act has the nature of consolation money for bereaved family members and the above claim for consolation money for bereaved family members are in conflict with each other. If the plaintiff has already received consolation money of 100,000 won as consolation money for the plaintiff under the State Compensation Act, as the judgment of the court below became final and conclusive, the plaintiff's claim for consolation money for bereaved family members should have already been paid to the defendant, and thus the plaintiff cannot claim consolation money for bereaved family members in conflict with this. This is also the opinion of the court below's precedents (see Supreme Court Decision 68Da602 delivered on June 18, 1968; Supreme Court Decision 67Da2825 delivered on July 2, 1968; Supreme Court Decision 2005Da16000 delivered on compensation money for bereaved family members; Supreme Court Decision 1605 delivered on June 16, 200.

Therefore, the part of the judgment of the court below against the defendant shall be reversed, and the part of the case shall be remanded to the Gwangju District Court Panel Division which is the court below.

This decision is consistent with the opinions of the involved judges.

Justices Hak-jin (Presiding Justice)