2010Guhap720 Revocation of Disposition of Refusal of Bereaved Family Members

Lee00 (48***************)*

Jeju-si Ha1 Ri*****

Public-Service Attorney Park Jong-hoon

The President of Jeju Special Self-Governing Province

Litigation Performers*

December 22, 2010

January 12, 2011

1. The Defendant’s disposition of refusal to render distinguished services to the State against the Plaintiff on May 25, 2010 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

1. Details of the disposition;

A. The deceased Lee 00 (hereinafter “the deceased”) was killed in action on January 1, 1951 during military service. On May 13, 2010, the Plaintiff asserted that he/she was the deceased’s child and filed an application for registration of bereaved family members with the Defendant under the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “the Honorable Treatment Act”).

B. However, on May 25, 2010, the Defendant rendered a disposition rejecting an application for the registration of bereaved family members of a person who has rendered distinguished services to the State (hereinafter referred to as “instant disposition”) to the effect that “the report of marriage between the deceased and the Plaintiff’s mother was made after the deceased’s death, and the report of birth against the Plaintiff is null and void, and that the report of birth against the deceased cannot be deemed to have been recognized as the deceased’s child upon the birth report outside of wedlock.” [The grounds for recognition] The Defendant did not dispute the fact that there is no dispute on the grounds of the application for the registration of bereaved family members of the State,

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that even though the marriage report of the deceased and the door00 on the family register was written as a result of the deceased's death, the plaintiff is obviously the deceased who was in a de facto marital relationship between the deceased and the door00, and thus, the disposition of this case is unlawful.

(b) Relevant statutes;

Act on Honorable Treatment and Support of Persons, etc. of Distinguished Service

Article 5 (Scope of Bereaved Family Members)

(1) The scope of bereaved families or families of persons who have rendered distinguished services to the State shall be as follows:

1. Spouse (including de facto spouse: Provided, That this shall include the spouse and de facto spouse who have rendered distinguished services to the State;

Cases where they are or were de facto marriage with persons other than those who have rendered distinguished services to the State after marriage or de facto marriage;

excluding)

2. Children;

C. Determination

In light of the basic ideology of the Honorable Treatment Act (Articles 1 and 2) and the provisions that include the scope of bereaved families of persons of distinguished service to the State as well as the de facto spouse (Article 5(1)1), etc., it is reasonable to view that a child born out of wedlock is a child in de facto parent-child relationship who was not recognized by the father and is a child under Article 5(1)2 of the Honorable Treatment Act (see Supreme Court Decision 2010Du8935, Sept. 30, 2010).

Therefore, there is no dispute between the Plaintiff and the Defendant as to the instant case, where the Plaintiff was in a de facto marital relationship without reporting the marriage before the military intervention, and between the deceased and the Defendant who were in a marital relationship without reporting the marriage before the military intervention. Thus, it is null and void as the marriage report of 100 was made on August 30, 1953, which is the death of the deceased, and even if the Plaintiff was in a marital relationship between the deceased and the deceased, as long as the Plaintiff was recognized as a de facto marital relationship between the deceased and the deceased, the Plaintiff constitutes a child who is a bereaved family member of a person of distinguished service to the State pursuant to Article 5(1)2 of the Act, so the disposition rejecting the Plaintiff’s application for the registration

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Park Jae-in (Presiding Judge)

Kim Jong-tin

Park Soft-in Park