[1] Whether a military advocate may immediately claim remuneration from the State in the same manner as a judge and a prosecutor pursuant to Article 6 of the Act on Appointment, etc. of Military Advocates (negative)

[2] Requirements for recognizing State liability due to a public official's omission and meaning of "in violation of the Act and subordinate statutes" under Article 2 (1) of the State Compensation Act

[3] The case holding that even though Article 5 (3) of the former Military Advocates Appointment Act and Article 6 of the Act on the Appointment of Military Advocates stipulate that the pay and other remuneration of military advocates shall be prescribed by Presidential Decree, the State does not enact a Presidential Decree as provided in the above provision from the time of the enactment of the former Military Advocates Appointment Act and does not meet the requirements for state liability due to the omission of public officials

[1] Article 6 of the Military Advocates Appointment Act does not stipulate a specific right to claim remuneration, but only delegates it to the Presidential Decree without specifying the requirements for payment, scope of payment, and amount of payment of the specific right to claim remuneration. Thus, unless otherwise prescribed by the Presidential Decree, a military advocate may not immediately claim payment of remuneration and other remuneration to the State on the sole ground of the aforementioned provision.

[2] In order to recognize the state liability due to the omission by a public official, the requirements of Article 2(1) of the State Compensation Act, which provides that "if a public official causes damage to another person by intention or negligence in violation of the Act and subordinate statutes because he/she was responsible for performing his/her duties," shall be met. Here, "in violation of the Act and subordinate statutes" refers to a case where a public official violates the Act and subordinate statutes expressly stipulate his/her duty to act by a public official, and a case where the country whose primary mission is to protect the lives, bodies, property, etc. of the people is to protect the lives, bodies, property, etc. of the people because there is no provision in the Act and subordinate statutes.

[3] The case holding that even though Article 5 (3) of the former Military Advocates Appointment Act (amended by Act No. 6291 of Dec. 26, 2000) and Article 6 of the Military Advocates Appointment Act stipulate that the pay and other remuneration of military advocates shall be prescribed by Presidential Decree, if the State does not enact a Presidential Decree as prescribed in the above provision from the time of the enactment of the former Military Advocates Appointment Act and remains at present, it does not meet the requirements for state liability due to a public official's omission.

[1] Article 6 of the Act on the Appointment, etc. of Military Advocates / [2] Article 2 (1) of the State Compensation Act / [3] Article 5 (3) of the former Act on the Appointment of Military Advocates (amended by Act No. 6291 of Dec. 26, 200), Article 6 of the Act on the Appointment, etc. of Military Advocates, Article 2 (1) of the State Compensation Act

Park Jin (Attorney Stabili-hwan, Counsel for the plaintiff-appellant)

Korea

April 6, 2005

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 64,730,710 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The plaintiff passed the 40th judicial examination and completed the Judicial Research and Training Institute with 30th period around January 2001, and was appointed as military advocate on April 1, 2001, and was discharged from military service on March 30, 2004.

B. Article 5 (3) of the former Military Advocates Appointment Act (amended by Act No. 1904 of Mar. 3, 1967 and amended by Act No. 6291 of Dec. 26, 2000; hereinafter referred to as the "former Act") provides that "the treatment of military advocates shall be determined by Presidential Decree in terms of the treatment of judges and public prosecutors." Article 6 of the current Act on the Appointment of Military Advocates (amended by Act No. 6291 of Dec. 26, 2000; hereinafter referred to as the "Act") provides that "the remuneration and other remuneration of military advocates shall be determined by Presidential Decree in the same manner as that of judges and public prosecutors," but the defendant did not enact the Presidential Decree as stipulated in the above provision after the enactment of the former Act, and the Constitutional Court made a decision that the remuneration and other remuneration of military advocates will not be paid in the same manner as that of the former Act should be determined by Presidential Decree (hereinafter referred to as "the former Act").

[Ground for recognition] Unsatisfy

2. Judgment on the plaintiff's assertion

A. Determination on the claim for remuneration

(1) Notes

In accordance with Article 6 of the above "Act", the defendant is obligated to pay the plaintiff the same as or equivalent to the judge or prosecutor's, so the defendant is obligated to pay the plaintiff the amount stated in the purport of the claim, which is the difference between the difference between the plaintiffs' remuneration and the remuneration received during the above service period.

(2) Determination:

On the other hand, the plaintiff's above claim is based on the premise that the plaintiff has the right to claim compensation identical or equivalent to the judge and prosecutor in accordance with Article 6 of the above "Act" against the defendant, but Article 6 of the above "Act" does not stipulate the specific right to claim remuneration as alleged by the plaintiff, but rather delegates it to Presidential Decree without specifying the requirements for payment, scope of payment and amount of payment. Thus, unless the Presidential Decree was enacted, unless it is prescribed by the Presidential Decree, the plaintiffs can not immediately claim payment of remuneration to the state on the sole basis of the above "Act".

Therefore, the plaintiff's above assertion is without merit.

B. Determination as to the claim for damages

(1) Notes

The President, who belongs to the defendant, caused damages equivalent to the amount stated in the purport of the claim, which is the difference in the actual remuneration that the plaintiff actually received from the prosecutor's remuneration due to the unconstitutional or unlawful act that did not enact the Presidential Decree of this case intentionally or by negligence

(2) Determination:

(A) The requirements of Article 2(1) of the State Compensation Act, which provides that a public official shall be liable to compensate for State damage caused by a public official’s omission, as in the case of recognizing the State’s liability to compensate for State damage caused by a public official’s act, shall be met. Here, “in violation of the Act and subordinate statutes” refers to a case where a public official violates the Act and subordinate statutes expressly stipulate his/her duty to act by a public official in a strictly formal sense, and a case where a State whose primary mission is to protect the lives, bodies, property, etc. of citizens can not protect the people’s lives, bodies, property unless the State, etc., whose primary duty is to protect the people’s lives, bodies, property, etc., is not provided in the Act and subordinate statutes, even if there is no provision in the Act and subordinate statutes.

However, in the case of this case, "the former Act and the above Act shall be prescribed by Presidential Decree" does not expressly stipulate the President's legal obligation to enact the Presidential Decree of this case strictly, and it does not meet the requirements for state liability due to the omission by public officials, on the ground that the formal meaning of this case does not stipulate the President's legal obligation to enact the Presidential Decree of this case strictly, and there are no special circumstances in which the military advocate's life, body, property, etc. are imminent

(B) However, as seen earlier, the President, at the binding force of the Constitutional Court's decision on February 26, 2004, imposed an explicit legal obligation to enact the Presidential Decree of this case on the basis of the binding force of the Constitutional Court's decision, and even if it was not enacted as soon as possible, it may be deemed that the Plaintiff suffered considerable damage to the Plaintiff's right to claim remuneration as stipulated in the above Act between one month and one month from the date of discharge after the above decision (the right to claim remuneration after discharge of the Plaintiff). However, it is difficult to deem that the period of preparation is necessary until the time when the President enacted the Presidential Decree of this case after the decision of the Constitutional Court, until the time when the Plaintiff was discharged, it is difficult to deem that a considerable period of preparation has elapsed (the record recognizes the fact that the current procedures for

(C) Therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed for reasons.

Judges Yoon Tae-tae