Whether a decision made on a person eligible for compensation, etc. by the Committee for Deliberation on the Restoration of Honor of Persons Related to Democratization Movement is an administrative disposition (affirmative) and a lawsuit seeking the payment of compensation, etc. under the Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movement (=

[Majority Opinion] (A) In light of the purport and contents of Article 2 subparag. 1, subparag. 2, and Articles 4, 10, 11, and 13 of the Act on the Restoration of Honor of and Compensation to Persons Related to Democratization Movement, any of the items of Article 2 subparag. 2 of the same Act is merely abstractly defined as a type of damage related to democratization movements, and thus, even if the contents of the democratization movement defined in subparag. 1 of Article 2 are considered together with the contents of the Act, it cannot be deemed that a person entitled to compensation, etc. under the Act is determined as a person entitled to compensation, etc. under the Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement. Such determination of the Deliberation Committee constitutes an administrative disposition directly affecting the rights and duties of the people, and thus, where the Deliberation Committee does not recognize all or part of the relevant requirements and thus the applicant dismissed the payment of compensation, etc., he/she may file a lawsuit against the Deliberative Committee to revoke the decision.

(B) Article 17 of the Act on the Restoration of Honor of and Compensation to Persons Related to Democratization Movement does not stipulate the form of a lawsuit concerning the payment of compensation, etc. However, since a lawsuit concerning the payment of compensation, etc. under the former part of the above provision is a lawsuit seeking objection against a decision to fully or partially dismiss the application for payment of compensation, etc. by the Committee for Deliberation on the Restoration of Honor of Persons Related to Democratization Movement and Compensation, etc., it refers to a lawsuit seeking revocation. In the latter part, where 90 days have elapsed from the date of the application for payment of compensation, etc., the latter part of the said lawsuit allowing a person to file the lawsuit without going through such decision, etc. when he/she failed to obtain a decision on whether to pay compensation, etc. within the said period for prompt relief of his/her rights, it shall be construed that the decision to refuse the payment was made, and the said provision shall not be construed as restricting a lawsuit seeking revocation of the payment of compensation, etc. or allowing the applicant that was not determined by the Deliberation Committee to directly file a lawsuit seeking payment against the State.

[Dissenting Opinion by Justice Kim Hwang-sik, Justice Kim Ji-hyung, and Justice Lee Hong-hoon] The provision of Article 17 of the Act on the Restoration of and Compensation to Persons Related to Democratization Movement gives special meaning to the principle of prior determination by legislators. The true meaning of the Act is to enable the State to obtain remedy in the form of a party litigation immediately after a certain period for prior examination, such as the decision of the Deliberative Committee, or after the lapse of a certain period for the purpose of prior examination. In addition, in terms of promoting the prompt resolution of litigation economy or dispute, it is the most effective and appropriate means for the resolution of infringement on citizens’ rights and interests. Therefore, in cases where a person who has filed an application for payment of compensation, etc. seeks to dispute the decision of the Deliberative Committee on the payment of compensation, etc., the State shall immediately file a lawsuit seeking compensation, etc., and as such, the right to the compensation, etc., which the relevant person has is a public right recognized by the above Act, the lawsuit for the payment of compensation, etc

Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement, etc. and Articles 2 subparag. 1 and 2, 4, 10, 11, 13, and 17 of the Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement, Article 2 subparag. 1 and 3 subparag. 1 and 2 of the Administrative Litigation Act

Plaintiff

The Committee for Deliberation on Restoration of Honor and Compensation to Persons Related to Democratization Movement

Seoul High Court Decision 2005Nu8254 delivered on November 9, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. On the first ground for appeal

Article 2 Subparag. 1 of the Act on the Restoration of and Compensation for Persons Related to Democratization Movements (hereinafter “Act”) defines persons who have made a sacrifice in relation to democratization movements and their bereaved family members for the purpose of restoring their honor and compensating for their honor, and Article 2 Subparag. 2 of the Act on the Restoration of and Compensation for Democratization Movement (hereinafter “related persons”) defines “persons related to democratization movements” as “persons deliberated and determined by the Committee for Deliberation on the Restoration of and Compensation for Persons Related to Democratization Movements (hereinafter “Committee”) under Article 4 from among the following persons,” and each item of subparagraph 2 stipulates that “A person who has been killed or missing in relation to democratization movements, (b) a person who has been injured in relation to democratization movements; (c) a person who suffers from a disease prescribed by Presidential Decree due to democratization movements or is recognized as having died after being dead of such disease; and (d) a person who has been convicted, injured, or has been subject to school punishment due to democratization movements on the ground of democratization movements”:

Furthermore, under Article 4 of the Act, the Committee shall be established under the jurisdiction of the Prime Minister to deliberate and decide on the restoration of honor, compensation, etc. of related persons and their bereaved family members, and the Committee shall deliberate and decide on whether related persons and their bereaved family members (hereinafter “related persons, etc.”) are related persons, the disability grade of related persons, the deliberation, determination, and payment of compensation, etc., and matters necessary for the restoration of honor of related persons, etc., and Articles 10, 11, and 13 of the Act shall apply to the Committee as related persons, etc. for the payment of compensation, medical allowances, and living allowances (hereinafter “compensation, etc.”) and the Committee shall determine whether to pay compensation, etc. within 90 days from the date of receipt of the application for payment of compensation, etc., and related persons, etc. who have an objection to the Committee’s decision may file an application for reexamination with the Committee within 30 days from the date of receipt of the written decision.

In light of the purport and contents of the above provisions, each item of Article 2 subparagraph 2 of the Act is merely an abstract provision of the type of damage related to democratization movements and thus, even if the contents of democratization movements defined in Article 2 subparagraph 1 of the Act are considered together, the provisions alone cannot be deemed as having become final and conclusive, and only when they are deliberated and decided by the Committee, they can be determined as the person entitled to compensation, etc. under the Act. Therefore, since the Commission's decision constitutes an administrative disposition that directly affects the rights and obligations of the people, if the Commission dismissed the payment of compensation, etc. because it does not recognize all or part of the relevant requirements as related to the application to receive compensation, etc., the applicant can be said to be the person entitled to compensation, etc. by filing a lawsuit against the Committee seeking revocation of the decision.

Meanwhile, Article 17 of the Act provides that "Litigation concerning the payment of compensation, etc. under this Act may be instituted only after a decision on the payment or dismissal of compensation, etc. is made by the Committee, and this shall not apply where 90 days have passed from the date the application for payment of compensation, etc. is filed, and does not stipulate the form of litigation concerning the payment of compensation, etc., but since a lawsuit concerning the payment of compensation, etc. under the former part of the above provision is a lawsuit seeking objection against a decision to dismiss all or part of the Committee's application for payment of compensation, etc., it shall be deemed as a revocation lawsuit as mentioned above, and even though 90 days have passed from the date the application for payment of compensation, etc. was made in the latter part of the above provision, it shall be deemed that the above lawsuit can be instituted without the decision if the decision on whether to pay compensation, etc. is made within the above period for prompt relief of rights for related persons, etc., it shall be interpreted that the above provision has been rejected and shall not immediately allow the Committee to bring a suit directly against the applicant for performance, etc.

In the same purport, the court below is justifiable to reject the defendant's defense of safety that the lawsuit of this case against the decision of the commission that the plaintiff partially dismissed the application for payment of compensation and sought revocation of the disposition, and that the State should seek payment of compensation against the State. Therefore, it is not erroneous in the misapprehension of legal principles as to the disposition of the commission's decision or the form of lawsuit as otherwise

The judgment invoked in the ground of appeal is not related to the interpretation and application of the law applicable to this case, and it cannot be invoked in the judgment of the court below that there is an error of violation of precedents.

2. On the second ground for appeal

According to the reasoning of the judgment of the court of first instance cited by the court below, the deceased was arrested at around 1972 on the ground that he was able to resist to the authoritative authority of the Seoul National University and operated Dominant demonstration, and possessed dives related to the case. At the time, the investigative agency at the time, such as making a group bet the deceased under the intent to operate the deceased as a counter-espionage, etc., as an adviser, four sons, such as the deceased's front her, her fluor, etc., and thereafter, the deceased was reduced to the extent that he could not know her fluoral, and even while walking or her fluoring, the deceased's fluoral fluoral her own fluoral fluor, and was arrested at the investigative agency around 1972. It constitutes not only the person subject to the compensation for the death of the deceased, but also the person who sought the compensation for the death of the deceased, such as the plaintiff's fluoral f.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles, and the ground of appeal asserting that the court below erred in the misapprehension of legal principles while disputing the preparation of evidence and fact-finding cannot be justified.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

With respect to the judgment on the ground of appeal No. 1, there is a assent of all participating Justices except for a dissenting opinion by Justice Kim Hwang-sik, Justice Kim Ji-hyung, and Justice Lee Hong-hoon. There is a concurrence with the Majority by Justice Jeon Soo-ahn and a concurrence with the Dissenting Opinion

4. Dissenting Opinion by Justice Kim Hwang-sik, Justice Kim Ji-hyung, and Justice Lee Hong-hoon

A. The Majority Opinion deems that the right to receive compensation, etc. under the Act does not directly arise under the provisions of the Act and constitutes a related person who is entitled to receive compensation, etc. under the Act, and such determination by the Committee constitutes an administrative disposition that directly affects the rights and obligations of the people. Therefore, if the Committee applied for payment of compensation, etc., but it decided to dismiss the payment of compensation, etc. in whole or in part because it did not recognize all or part of the relevant requirements, it determined to the effect that the applicant is entitled to remedy the right in the form of appeal seeking revocation against the Committee.

However, such a view of the Majority Opinion cannot be agreed, and in such cases, the applicant shall file a party lawsuit claiming compensation, etc. against the State. The reasons are as follows.

(1) Above all, the text of Article 17 of the Act should be interpreted faithfully.

Under the title of Article 17(1) of the Act, a lawsuit for the payment of compensation, etc. under this Act may be brought only after the decision on the payment of compensation, etc. is made by the Committee: Provided, That this shall not apply where 90 days have elapsed from the date the application for the payment of compensation, etc. is filed.

As can be seen, Article 17(1) of the Act uses the former phrase “litigation concerning the payment of compensation, etc....” The Majority Opinion deems the meaning of the said provision to be “litigation seeking revocation of the Commission’s decision on the payment of compensation, etc. or the dismissal thereof.” However, if such provision is applied to the statutory text, the former part of Article 17(1) of the Act provides that “a lawsuit seeking revocation of the Commission’s decision on the payment of compensation, etc. or the dismissal thereof may be brought only after the Commission’s decision on the payment of compensation, etc. or the dismissal thereof is made.” This does not mean that a very color provision is not a provision. If a legislators intends to provide for the above provision through the said legal provision, the purport is only that “a lawsuit against appeal may be brought after an administrative disposition subject to it may be brought”.

The legislators’ establishment of such legal provisions does not necessarily mean that it is intended to confirm the contents of compensation, etc. as extremely natural. Article 17(a) through (e) of the Act does not necessarily mean that it is intended to stipulate the purport different from that of the aforementioned confirmative meaning. If the legislative intent of the legislators regarding Article 17 of the Act is to separately stipulate the same as that of the foregoing, so it is difficult to say that there is no reason to say that there is no apparent provision, the meaning of “litigation for the payment of compensation, etc.” as referred to in the above provision is understood as “litigation for the payment of compensation, etc.”.

As a reference, the former State Compensation Act (amended by Act No. 6310 of Dec. 29, 200, hereinafter the same) stipulated that the action for compensation under this Act may be brought only after the decision of the Compensation Council on the payment of compensation or dismissal thereof is made. However, with regard to the meaning of this provision, the Supreme Court already held that “the decision of the Compensation Council on the above provision is merely a pre-determination requirement before the claim for State compensation.” (see Supreme Court Decision 80Nu317, Feb. 10, 1981). In comparison with this interpretation, the above decision of the Compensation Council on the grounds that it is merely a pre-decision requirement under the above provision is not an administrative disposition.” (see Supreme Court Decision 80Nu317, Feb. 10, 1981).

In addition, if a person files an application for the payment of such benefits under public law, such as the Public Officials Pension Act, the Military Pension Act, the National Pension Act, the Industrial Accident Compensation Insurance Act, the Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State, and the Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State but refuses to do so, it is confirmed by the previous precedents that the applicant is not immediately entitled to a lawsuit seeking the payment of such benefits, but by an appeal litigation against such rejection disposition, and there is no particular theory (or theory). However, it is true that the above laws do not have a separate provision on the principle of decision-making, such as Article 17

On the other hand, the Act on the Compensation, etc. for Persons Related to Gwangju Democratization Movement (hereinafter “Biju Democratization Movement Compensation Act”) which provides for prior determination as prescribed in Article 17 of the Act may be adopted. The content of prior determination under Article 17 of the Act is completely the same as that of the prior determination under the Act on the Compensation for Gwangju Democratization Movement, and the overall system as well as the function of the Committee is almost similar. In relation to the application for payment of compensation, etc. under the Act on the Compensation for Gwangju Democratization Movement, which has a similar system, the Supreme Court held that the form of litigation should be deemed not to be an appeal litigation, but a lawsuit against the State as defendant (see Supreme Court Decision 92Nu335, Dec. 24, 1992). Thus, the interpretation of the existing precedents on the same legal provision between different systems should be consistent, barring any special circumstance, to the extent that the previous precedents concerning compensation under the Act on the Compensation for Gwangju Democratization Movement should be interpreted differently from the opinion of the Supreme Court prior to the amendment of the Act on the Compensation for Democratization Movement.

In addition, the latter part of Article 17(1) of the Act shall not be neglected. According to the latter part of the same Article, a lawsuit may be filed at the expiration of 90 days from the date on which an application for payment of compensation, etc. was filed, and it may be filed at the time of absence of any administrative disposition that is subject to appeal, or a lawsuit may be filed by deeming that a disposition that is subject to appeal is a disposition that is subject to appeal, although no decision is made by the Committee, is very color and natural interpretation that is not a question.

In addition, despite the provisions of Article 17 of the Act, if there is a provision that provides that the Commission may bring an administrative appeal against the Commission's decision itself, or if there is a provision that provides that the Commission may bring an administrative appeal against the said decision and proposes or assumes a lawsuit seeking the revocation thereof, other interpretation may be possible, but there is no such provision in the Act.

Article 2 Subparag. 2 of the Act defines "a person related to democratization movements" as "a person who has been deliberated and determined by the Committee for Deliberation on Restoration of and Compensation to Persons Related to Democratization Movements under Article 4 among persons falling under any of the following items." Thus, the majority opinion states that "a person who died or was missing in relation to democratization movements, (b) a person who suffers from a disease prescribed by Presidential Decree due to democratization movements, or is deemed to have died due to a post-beliation thereof; (c) a person who suffers from a disease due to democratization movements, or is recognized as having died due to a post-belition," and (d) a person who is not sufficient to be found guilty, discharged, or is deemed to have been subject to deliberation and decision by the Committee, and further, it seems to be the most flexible argument for the Committee to take into account whether compensation, etc. under Article 2 Subparag. 2 of the Act can be paid or not, and therefore, the final authority to judge whether compensation, etc. is entitled to receive a decision by the Committee for adjudication on democratization movements, which can be determined by the law.

In the end, if there is no provision of Article 17 of the Act regarding the principle of pre-determination in the law, it is reasonable to view that the majority opinion would follow the form of appeal litigation, but as long as other Acts provide for the principle of pre-determination which is difficult to find, it is reasonable to view that the legislator has a special meaning as to the principle of pre-determination, that is, it is true to allow a party to receive a remedy in the form of a party litigation immediately after a certain period for pre-determination expires.

(2) The other is to look at the point of view of what is more objective in the position of the party who intends to obtain the right through administrative litigation.

The purpose of administrative litigation is to relieve citizens from infringement of their rights or interests and to properly resolve disputes over legal relations or application of law by cancelling or changing illegal dispositions, etc. of administrative agencies, or confirming the validity or existence of such dispositions, etc., and to perform the functions such as judicial control and expansion of remedy for infringement of rights and interests in administration. Meanwhile, Article 3 of the Administrative Litigation Act forms litigation so that citizens may choose the forms of litigation most appropriate for the situation of infringement of their rights and interests and the purpose of administrative litigation. Accordingly, in the event the form of litigation is at issue as in this case, it shall be reasonably determined by comprehensively taking into account the following: (a) what form of litigation may be the most effective and appropriate means to resolve infringement of their rights and interests; and (b) the purpose and function of the Administrative Litigation Act as seen above.

However, the Majority Opinion does not point out that it is the most fundamental right request to be achieved by the means of remedy as prescribed by the Administrative Litigation Act, and that there is a possibility that a dispute may be settled and repeated from the standpoint of the party who brought a lawsuit in accordance with the Majority Opinion. In other words, when considering the case in which an applicant filed an application for the payment of compensation, etc. under the law but the Commission has decided to dismiss the entire or part of the application, the applicant must seek revocation of the decision to dismiss the whole or part of the application. In this case, where the judgment becomes final and conclusive after a court rendered a decision to revoke the decision to dismiss the whole or part of the application, the Committee should revoke the decision to dismiss the entire or part of the application, or revoke a partial decision to dismiss the application, and if the applicant still fails to meet the requirements by making a decision to pay the amount less than the amount the applicant seeks, then the applicant may again file a lawsuit seeking revocation of the decision to dismiss the payment of compensation, etc., in view of the majority opinion, it would not be desirable to seek prompt settlement of disputes between the public and economic disputes.

On the other hand, if a party suit is followed, the applicant can bring a lawsuit concerning the payment of compensation, etc. to the court without being dissatisfied with the decision of dismissal of the committee's compensation, etc., and the court also can resolve the dispute on the basis of determining whether the applicant is a person related to the person who is freely subject to the decision of dismissal of the committee's compensation, etc., the degree of injury, and the amount of compensation, etc. without being bound by the committee's decision of dismissal. Thus, it would be the most effective and appropriate means to resolve the infringement of the rights and interests of the people.

B. As seen above, I cannot agree with the majority opinion that a lawsuit related to the payment of compensation, etc. to a person related to democratization movements should be filed in the form of an appeal litigation, as in this case, from a legal interpretation perspective or from a legal perspective perspective. Therefore, where a person who has filed an application for payment of compensation, etc. seeks to dispute the decision on the payment of compensation, etc. of the Commission, he/she shall immediately file a lawsuit seeking compensation, etc., and the right to the compensation, etc., which the person related to the payment of compensation, etc., is a public right recognized by law, and therefore, the lawsuit for the payment of compensation, etc. shall be based on the party litigation as stipulated in Article 3 subparag.

Nevertheless, the lower court rejected the Defendant’s principal safety defense, which is unlawful, as the Plaintiff filed the instant lawsuit with the commission as the Defendant, on the grounds that it is possible for the Plaintiff to file an appeal against the commission immediately.

Such judgment of the court below is erroneous in the misunderstanding of legal principles as to decisions made by persons related to democratization movements, and the defendant's ground of appeal alleged to this purport is with merit. Therefore, the judgment below should be reversed, and therefore, it is against the majority opinion.

5. Concurrence with the Majority Opinion by Justice Jeon Soo-ahn

Justices Jeon Soo-ahn try to supplement the Majority Opinion through criticism of the Dissenting Opinion.

A. The Dissenting Opinion argues that even though the Act stipulates that the person concerned is a person deliberated and decided by the Committee among the persons falling under any of the items of Article 2 subparagraph 2, a person who falls under any of the above items shall be treated as a simple preliminary examination by interpreting that the person concerned is a related person, and the above provision shall be regarded as a mere preliminary examination and the above provision shall be regarded as a mere procedural provision for the preliminary examination. However, the Dissenting Opinion appears to be an interpretation theory that does not conform to the language and purport of the above provision

(1) The Act shall deliberate and decide on whether a person who has made a sacrifice in connection with the past democratization movement and his/her bereaved family members constitutes a person related to the democratization movement and his/her bereaved family members through an ex post facto examination by the Committee, and shall not immediately pay compensation, etc. solely on the grounds that such person’s honor restoration or payment falls under any item of Article 2 subparag. 2 of the Act.

As long as the Act separates persons eligible for deliberation as eligible for compensation, etc. and persons eligible for payment of compensation, etc. after deliberation and decision by the Committee, the status or expectation of a person eligible for deliberation as eligible for compensation, etc. cannot be considered as an abstract and uncertain right. It is logical to deem that a person may seek payment of compensation, etc. by deeming that he/she has a right to claim direct payment of compensation, etc. solely on the ground that there is possibility of being eligible for payment of compensation, etc. is inconsistent with logical reasoning. As seen in the Majority Opinion, it seems that the Act has detailed provisions on the organization and duties of the Committee, the procedure for application for payment to the Committee, the decision of the Committee, and the procedure for objection thereto, in mind that the right

As such, it cannot be deemed that the deliberation and decision of the Committee should be conducted prior to the exercise of the right to request payment, such as compensation, and if the Committee deliberated and decided on, it shall be deemed that the right to review granted to it has been exercised, and if the Committee did not determine whether to pay compensation, etc. and the amount thereof within 90 days, it shall be deemed that the right to review

(2) Each item of Article 2 subparag. 2 of the Act, which provides for relevant persons, is merely a type of harm related to democratization movements. Accordingly, the amount corresponding thereto can not be determined as a person eligible for compensation, etc. under the Act. Only when it is clearly identified that the democratization movement is related to the democratization movement under Article 2 subparag. 1 of the Act, the person eligible for compensation, etc. can be determined as a person eligible for compensation, etc. However, the democratization movement under Article 2 subparag. 1 of the Act, which is against the authoritative rule that disturbs the fundamental order of free democracy and infringes on the fundamental rights of the people guaranteed by the Constitution, contributes to the realization of the ideology and value pursued by the Constitution and the establishment of democratic constitutional order, and restored and expanded the freedom and rights of the people. Accordingly, since March 24, 1964, activities not only can be recognized as a person eligible for payment of compensation, etc. under the Act, but also can not be easily determined as a person eligible for payment of compensation, etc. under the Act.

As can be seen, it is difficult to view that the applicant is a person eligible for compensation without examining whether the applicant is a democratization movement prescribed in Article 2 subparag. 1 of the Act and whether the applicant's act constitutes a person eligible for compensation immediately. Ultimately, the concept provided in Article 2 of the Act does not make it difficult to immediately identify a person eligible for compensation, etc. under the Act. As such, it is necessary to prior to the Committee to determine whether a person is related to a democratization movement by providing a practical examination function and whether the applicant is a person eligible for compensation

(3) In relation to the application for the payment of compensation, etc. under the Gwangju Democratization Movement Compensation Act, the Dissenting Opinion held that the form of litigation in the case of dissatisfied with the decision of the Compensation Deliberation Committee on the application for payment of compensation, etc. under the Gwangju Democratization Movement Compensation Act shall be deemed not an appeal litigation but a party litigation with the State as the defendant, and thus, the interpretation of the provision of the decision-orientedism under the Gwangju Democratization Movement Compensation Act and the interpretation of the decision-orientedism under Article 17 of the

However, the Gwangju Democratization Movement Compensation Act may not be reasonable in the case of this case in which the interpretation of the Act on the Compensation for Gwangju Democratization Movement differs from the law applicable to this case, its subject matter, and the text of the provision of the law. Moreover, considering the difference in litigation costs in a party litigation and an appeal litigation as seen above and the existence of burden of proof, etc., the form of litigation in the case of objection to the decision of the Committee on the application for payment of compensation, etc. under the Gwangju Democratization Movement Compensation Act is more reasonable than litigation

(4) Therefore, in light of the language and purport of the law prescribed as above, and the procedural meaning and practical function of the committee’s deliberation and decision to examine whether the person concerned is related, it is reasonable to deem that the deliberation and decision of the committee is not a simple transfer procedure but a disposition by an administrative agency in the status of public authority. The procedure of disputing the decision of the committee shall be deemed an appeal litigation.

B. The Dissenting Opinion argues, as in the Majority Opinion, that if a lawsuit of dissatisfaction against a decision made by the Committee is interpreted as an appeal litigation, the dispute may not be resolved once by the lawsuit and repeated, while if the lawsuit of dissatisfaction is deemed as a lawsuit of a party, the dispute may be actually resolved through the lawsuit, and thus, the theory of party lawsuit is the most effective and appropriate means for the resolution of infringement on the rights and interests of the people. However, the Dissenting Opinion’s view is unacceptable for the following reasons.

(1) First of all, even if an appeal litigation theory is instituted, most of the disputes are actually settled in most cases, and there is no difference in the case where a party litigation theory is taken or a result is taken. This is because, if a court decides to revoke a decision to dismiss the whole or part of a committee, the decision is unlawful on the ground of the decision, and the commission recognizes that the relevant person is based on the reasoning that the binding force of the administrative judgment affects the administrative judgment, and then calculates and pays the compensation, etc. as prescribed by the law, most disputes surrounding the payment of compensation, etc. will be substantially resolved

However, there may be cases where disputes are repeated in some limited cases, but it is an inevitable phenomenon that occurs because the current Administrative Litigation Act does not recognize a mandatory lawsuit.

In addition, this issue does not arise only in the payment of compensation, etc. under the law, and it can generally arise in the case of benefits under various social security-related laws, including claims for various benefits under the Public Officials Pension Act, the Military Pension Act, the Industrial Accident Compensation Insurance Act, the National Pension Act, the Act on Honorable Treatment and Support for Persons, etc. of Distinguished Service to the State. Until now, there are these problems, the Supreme Court does not simply understand the decision of administrative agencies related to benefits under various social security-related laws as an internal act of administrative agencies within the administrative agencies, and almost all such cases are deemed administrative dispositions, and there is a dispute in the case of objection against the decision. In this case, there is a need for an administrative agency to investigate and confirm the facts of the claim for benefits and the recognition of the amount of benefits, and there is a room for administrative agencies to recognize the discretion of administrative agencies in the decision. Considering the above, there is no reason to treat the payment of compensation, etc. under other social security-related laws differently from the payment of benefits under the law.

On the contrary, if all disputes arising in the case of performance claim under all social security-related laws intend to be resolved by a party suit solely on the grounds of the problems as pointed out by the Dissenting Opinion, this is not only a position that considers the provisions or theoretical attempts of the Administrative Litigation Act that distinguish between an appeal litigation and a party suit as well as the text and legislative intent of individual administrative laws and regulations, but also a cumulative trend that constantly tried to derive the concept of the most appropriate administrative litigation form or administrative disposition under the relevant laws and regulations.

(2) From the perspective of burden of proof or cost of lawsuit in the administrative litigation, appeal litigation can be more favorable to the people, and thus, it is not reasonable to point out that the party litigation is the most effective and appropriate means to resolve infringement of rights.

In the case of appeal litigation, since the administrative agency bears the burden of proving the legality of administrative disposition, even if the commission made a decision to dismiss the whole or part of the application through the procedure of collecting data ex officio as an expert in regard to the application for payment of compensation, etc. claimed as a person related to democratization movements, the commission must voluntarily prove that the decision is legitimate in the litigation for revocation of the decision. On the other hand, if a party litigation theory is conducted, the burden of proof, such as data collection, and legal assertion, should be returned to the applicant. Thus, the applicant is more unfavorable than the case where an appeal litigation theory is conducted.

In addition, when the party litigation theory is taken in comparison with the case of taking the appeal litigation theory, there is a disadvantage that the burden of the applicant with respect to the litigation cost, such as stamp, etc., can be increased.

C. As seen above, as seen in the Majority Opinion, it is unreasonable for the Dissenting Opinion to criticize the Majority Opinion from the standpoint of the party litigation theory. In short, it is reasonable to interpret that the method of appeal against the determination of the commission that entirely or partially dismissed the application for payment of compensation, etc. to persons related to democratization movements, etc. is an appeal litigation as well as that it can be valid and appropriate means in terms of the legal doctrine.

6. Opinion concurring with the Dissenting Opinion by Justice Lee Hong-hoon

Justices Lee Hong-hoon added the following grounds to supplement the Dissenting Opinion.

First, the Majority Opinion assumes that the decision of the Committee constitutes an administrative disposition that directly affects the rights and obligations of the people. However, considering the validity of the decision of the Committee as presented in the Act, the Majority Opinion’s opinion may not raise any question.

Article 18(2) of the Act provides that “A decision to pay compensation, etc. under this Act shall be deemed to have been made with respect to damage incurred in relation to democratization movements, if the applicant consents, a judicial compromise shall be deemed to have been made in accordance with the Civil Procedure Act. Therefore, if the applicant consents to the decision to pay compensation of the Commission, a judicial compromise shall be deemed to have been made with respect to the damage incurred in relation to democratization movements. However, since the decision to pay compensation of the Commission does not legally take effect with respect to the applicant, the decision to pay compensation of the Commission shall not take effect with respect to the applicant, the effect of the decision to pay compensation of the Commission shall eventually lead to the outcome that depends on the consent of the relevant party. It is doubtful whether the decision of the Commission, which is binding only

The so-called "administrative disposition" is an act of public law of an administrative agency, which causes a direct change in the specific rights and duties of citizens, such as ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects, with respect to a specific matter, and an act which does not directly change the legal status of the persons concerned cannot be subject to appeal litigation. From this perspective, the decision of the commission is not an independent administrative disposition subject to appeal litigation but merely an exclusive requirement for seeking the payment of compensation, etc.

As stated in the Dissenting Opinion, a party member already states that the decision of the Compensation Council under the former part of Article 9 of the former State Compensation Act, which provides for the principle of pre-determination, is not an administrative disposition but merely an element of pre-determination. However, Article 15 (1) of the former State Compensation Act provides that “Any applicant who has received the decision of compensation, shall, without delay, file a claim for the payment of compensation with the State or a local government, along with a written consent to the decision.” Article 15 (1) of the former State Compensation Act provides that the consent of the State or a local government shall be required to take effect of the decision of the Compensation Council, and this is a flexible basis that cannot be deemed an administrative disposition subject to appeal litigation. Likewise, the content of Article 18 (2) of the Act, which provides that the effect of the decision of the Council depends on the consent of the parties,

Next, in light of Articles 7 through 9 of the Act and Presidential Decree, it is interpreted that the law recognizes that the applicant has the right to request the payment of compensation, etc. directly to the applicant in case of failing to comply with the decision of the Commission. Furthermore, it is thought that the lawsuit seeking the payment of compensation, etc. is only based on the party litigation under Article 3 subparagraph 2 of the Administrative Litigation Act, which is a lawsuit concerning legal relations under public law.

For the foregoing reasons, I dissent from the Majority Opinion, and express my concurrence with the Dissenting Opinion.

Chief Justice Kim Young-ran (Presiding Justice)