The method of determining persons eligible for the payment of compensation under the former Act on the Compensation for Persons of Special Military Missions and the legality of a lawsuit claiming direct compensation without obtaining a resolution of the Compensation Deliberation Committee (=Additional law)

In light of the legislative purport and contents of the former Act on the Compensation for Persons of Special Military Missions (amended by Presidential Decree No. 7978 of Sep. 22, 2006) and the former Enforcement Decree of the Act on the Compensation for Persons of Special Military Missions (amended by Presidential Decree No. 20041 of May 2, 2007) that have made a special sacrifice for the nation in relation to a special military mission, it cannot be deemed that the person eligible for compensation under the Act becomes final and conclusive only if it is recognized as a person eligible for compensation after deliberation and resolution by the Committee for the Compensation of Persons of Special Military Missions. Accordingly, the determination by the Committee constitutes a disposition prescribed in Article 2(1)1 of the Administrative Litigation Act, and thus, an applicant for a special military mission and his/her bereaved family members seeking the revocation of the decision can seek compensation directly against the State.

Article 2 of the former Act on the Compensation for Persons of Special Military Missions (amended by Act No. 7978 of September 22, 2006); Articles 2, 3, and 4 of the former Enforcement Decree of the Act on the Compensation for Persons of Special Military Missions (amended by Presidential Decree No. 20041 of May 2, 2007)

Plaintiff

Korea

Seoul High Court Decision 2007Nu25567 decided April 8, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

Judgment ex officio is made.

In light of the purport and contents of each provision of the former Act on the Compensation for Persons of Special Military Missions (amended by Act No. 7978 of Sep. 22, 2006; hereinafter “Act”) and the former Enforcement Decree (amended by Presidential Decree No. 20041 of May 2, 2007; hereinafter “Enforcement Decree of the Act”), the provisions of Article 2 (Definitions), Articles 2 (Definition), 3 (Scope of Application), and 4 (Determination of Persons of Special Military Missions) cannot be deemed to have been immediately determined as eligible persons of special military missions, solely on the basis of the provisions of Article 2 (Definitions of the Act, Articles 2 (Definition of the Enforcement Decree of the Act, 3 (Scope of Application), and 4 (Determination of Persons of Special Military Missions) that have made a special sacrifice for the nation and their bereaved family members. Accordingly, the Committee’s determination of the person eligible for compensation can only be determined as eligible persons of special military missions after deliberation and resolution of the Committee. Accordingly, the Committee’s determination of the person eligible for compensation cannot be revoked.

Nevertheless, the lower court determined otherwise on the premise that the instant lawsuit seeking direct payment of compensation, etc. against the Defendant was lawful. In so doing, the lower court erred by misapprehending the legal doctrine on the disposition of the Committee’s decision or the form of lawsuit, thereby adversely affecting the conclusion of the judgment. In this regard, the lower judgment cannot be maintained.

Therefore, without examining the grounds of appeal, the judgment of the court below is reversed ex officio, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)