(영문) 서울행정법원 2016.4.22. 선고 2015구합72399 판결

The defendant shall pay to the plaintiff 10 million won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. Since it is recognized that "B was mobilized to China and Japan by force from 1940 to August 2, 1945, and caused a chronic injury due to a disease," the Support Committee, such as the forced mobilization of force during the period of the Japanese War, etc. (hereinafter referred to as "Committee") shall be determined as a victim of the overseas compulsory mobilization under Article 2 of the Special Act on the Investigation of Damage from Force Force Mobilization during the Japanese War and the Support for Victims of Force Mobilization, etc. of Overseas Force Mobilization (hereinafter referred to as "Compulsory Mobilization Investigation Act"), and the plaintiff shall be determined as Grade 9 of the physical disability grade pursuant to subparagraph 2 of Article 4 of the same Act and Article 3 (1) of the Enforcement Decree of the same Act, and the plaintiff shall be paid consolation money to the plaintiff on January 24, 2013 on the ground that "the plaintiff falls under the bereaved family members under Article 3 of the same Act with B's birth, and the plaintiff shall be paid consolation money to the plaintiff on January 24, 2013.

B. The Plaintiff filed an application for re-deliberation with the purport that the determination of disability grade 9 against “B” with respect to “B” was insufficient to take into account the current situation at the time and the characteristics of the disease. However, on February 19, 2013, the instant commission rejected the instant application for re-deliberation on the ground that: (a) the Plaintiff had already received the instant consolation benefits on February 19, 2013; and (b) the date on which the instant written decision on the payment of consolation benefits was served was 60 days.

C. Meanwhile, pursuant to Article 19(1) of the Compulsory Mobilization Investigation Act, the term of existence of the instant commission expired on December 31, 2015, and the Minister of the Interior succeeded to the duties under his jurisdiction pursuant to Article 19(4) of the same Act.

[Ground of recognition] Facts without dispute, entry of evidence of Nos. 1 to 14, purport of the whole pleadings

2. The plaintiff's assertion

(a) Consolation benefits;

Since the amount of consolation money of KRW 7 million received by the commission of the instant case cannot be deemed a justifiable compensation in light of the degree of disability in B, etc., the Defendant is obligated to pay the Plaintiff the consolation money under the Compulsory Mobilization Investigation Act increased to KRW 100 million.

B. Article 4(2) of the Act on the Compensation for Damages Caused by Illegal Acts (amended and enforced by Act No. 2685, Dec. 21, 1974; repealed on Dec. 31, 1982); Article 2(1)9 of the Act on the Compensation for Damages Caused by Illegal Acts (amended by Act No. 2287, Jan. 19, 197; repealed on Mar. 21, 1971; repealed on Dec. 31, 1972); and Article 2(1)9 of the Act on the Compensation for Damages Caused by Illegal Acts (amended by Act No. 2287, Dec. 31, 1982; Act No. 300,00 won per person for the death caused damage to B due to the enactment of each of the above Acts. Thus, the Defendant is obligated to pay the above compensation for damages to the Plaintiff, a bereaved family member, 100,000 won.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Consolation benefits under Article 4 of the Compulsory Mobilization Investigation Act are paid by the State on a humanitarian basis to victims of the mobilization of forced foreign force before and after the Pacific War, their bereaved family members, etc. Therefore, it is reasonable to view that the State has the right to claim consolation benefits, which is recognized only by the specific law like other State compensation or social security benefits, and the above application for consolation benefits does not have the right to claim consolation benefits, but only is subject to the Committee’s decision to pay consolation benefits pursuant to Article 28 of the Compulsory

However, as seen earlier, the Plaintiff already received KRW 7 million from the instant committee upon receipt of the instant decision to pay the consolation benefits, and separately, the Plaintiff did not have the right to seek payment of KRW 100 million to the Defendant, as long as the payment of consolation benefits under Article 28 of the Compulsory Mobilization Investigation Act was not determined on June 30, 2014 without undergoing the procedure for filing an application for payment of consolation benefits for KRW 100 million.

Therefore, this part of the plaintiff's assertion is without merit.1)

B. Claim for damages

Under the parliamentary democracy adopted by the Constitution of the Republic of Korea, the National Assembly is a state agency that takes the role of forming a unified will in accordance with the principle of majority majority through a debate that reflects multi-original opinions or respective interests, and a member of the National Assembly who takes part in the process is not a political responsibility in relation to the legislation as a matter of principle in relation to the whole nation, and does not have a legal obligation in response to individual rights. Thus, even though the contents of the legislation are clearly in violation of the Constitution, the legislative act of a member of the National Assembly cannot be deemed as an illegal act under Article 2 (1) of the State Compensation Act unless the National Assembly clearly violates the contents of the legislation, unless the legislation clearly violates the contents of the Constitution, and in the same context, even though the State bears the specific legislative obligation imposed by the Constitution, it can be recognized that the State compensation liability under the State Compensation Act is established only in exceptional cases where the State intentionally or negligently fails to perform such legislative obligation with a considerable period of time required for the legislation (see Supreme Court Decision 2008Da34694, May 29, 2008).

In the case of this case, although the plaintiff claimed the state compensation due to the defendant's legislative omission, there is no assertion or proof as to the existence of exceptional circumstances for which the liability of compensation under the State Compensation Act can be recognized. Therefore, the plaintiff's assertion on this part is also without merit.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it does not appear to be any mother, and it is so decided as per Disposition.

Judges

The presiding judge, judge, senior judge

Judges Nam Sung-woo

Judges Gin Jae-in

Note tin

1) According to Article 30 of the Compulsory Mobilization Investigation Act and Article 28 of the Enforcement Decree of the same Act, in order for the Plaintiff to receive consolation benefits after being served with the original copy of the written decision on the payment of the consolation benefits of this case, the Plaintiff shall submit to the commission the “request for consent to and payment of consolation benefits, etc.” in attached Form 13. The above form states that “When the Plaintiff received consolation benefits, etc., he shall not make any request again in any way, such as not filing a lawsuit with the court on the same content as the case prescribed in this Act,” and it can be deemed as an indemnative agreement. The Plaintiff also presented the “request for consent to and payment of consolation benefits, etc. in accordance with the above form in order to receive KRW 7 million from the instant commission on February 19, 2013. Even if the Plaintiff and the commission of this case did not have the agreement on the payment of consolation benefits, it is highly likely that the Plaintiff had already agreed on the payment of consolation benefits under Article 200 of the Compulsory Mobilization Investigation Act.