Plaintiff

The Support Committee for Investigation of Damage from Force Mobilization during the Time of the Counter-Japan and Victims, etc. of Force Mobilization;

November 10, 2010

1. The Defendant’s rejection of payment of consolation money, etc. against the Plaintiff on August 27, 2010 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On May 1, 1943, the Plaintiff’s punishment Nonparty 4 (the deceased’s death on February 1, 1921, hereinafter “the deceased”) was forced to be mobilized as a worker in the Japanese region and returned to North Korea region since May 1, 1945. At the time of the Korean War, the Plaintiff was evacuated as South Korea, but the deceased got out of South Korea. According to the Red Cross’s investigation, the deceased was confirmed to have died, but the time of death cannot be known.

B. On November 17, 2009, the committee for ascertaining the truth of forced mobilization under the Japanese colonial Rule notified the deceased as the victim of forced mobilization under Article 17 of the former Special Act on Finding the Truth of Forced Mobilization under the Japanese colonial Rule (amended by Act No. 10143, Mar. 22, 2010; hereinafter the same). On the same day, the Plaintiff applied for payment of consolation money under Article 4 of the former Act on Support of Victims, etc. of Forced Mobilization before and after the Pacific War (amended by Act No. 10143, Mar. 22, 2010).

C. On August 27, 2010, the Defendant succeeded to the duties under Article 3 of the Addenda of the Special Act on the Investigation into Force Forced Mobilization during the Pacific War and the Support for Victims of Mobilization by Foreign Forced Mobilization (hereinafter “Special Act”), and dismissed the Plaintiff’s application for consolation money on the ground that “The deceased was forced to be mobilized as a labor in the Japanese region on May 1, 1943, but it is recognized that “the deceased was forced to be mobilized as a labor in the Japanese region, but falls under the category of “a person who does not have the nationality of the Republic of Korea” under Article 7 subparag. 4 of the Special Act on the Establishment of the Family Register in North Korea (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 6, 8, 9

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

Since the deceased was determined as a victim of forced mobilization under Article 17 of the Special Act on Finding the Truth of Forced Mobilization Damage under the former Japanese colonial Rule, he/she should pay consolation money pursuant to Article 4 of the Special Act. Therefore, the disposition of dismissal of this case is unlawful.

(2) The defendant's assertion

(A) Since the deceased has a family register in North Korea and does not have the nationality of the Republic of Korea, he/she is excluded from the payment of consolation benefits pursuant to Article 7 subparag. 4 of the Special Act.

(B) Since there is no evidence on the degree of injury of the deceased, the instant disposition dismissing the Plaintiff’s claim for consolation money is eventually lawful.

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

(1) Determination as to whether the deceased has the nationality of the Republic of Korea

(A) Article 7 subparag. 4 of the Special Act provides that a person who does not have the nationality of the Republic of Korea shall not be paid consolation money pursuant to Article 4 of the Special Act. Thus, we examine whether the deceased who was residing in North Korea is a national of the Republic of Korea.

Article 2 (1) of the Constitution of the Republic of Korea provides that the requirements for becoming a national of the Republic of Korea shall be prescribed by law, and Article 2 of the Nationality Act enacted accordingly stipulates that the father or mother at the time of birth shall acquire the nationality of the Republic of Korea by birth, and Article 3 of the Constitution provides that the territory of the Republic of Korea shall be the Korean Peninsula and its accessory islands.

In addition, Article 3 of the Constitution of the Republic of Korea provides that the requirements for a national of the Republic of Korea shall be prescribed by the law, and Article 100 of the Constitution provides that the current Act and subordinate statutes shall remain effective unless it conflicts with the Constitution. However, Article 2 subparagraph 1 of the Provisional Ordinance on Nationality No. 11 of the South and Do Government Law (hereinafter “Extraordinary Ordinance”) stipulates that a person who was born by her captain shall have the nationality of the Republic of Korea.

(B) According to the above facts under the premise of the relevant laws and regulations on the acquisition of nationality of the Republic of Korea, the deceased acquired the nationality of the Republic of Korea by birth of a Joseon at the time of the Constitution of the Republic of Korea with his parent as of July 17, 1948, but acquired the nationality of the Republic of Korea at the same time as the promulgation of the Provisional Ordinance on July 17, 1948, and even according to the current laws and regulations, the deceased is a national of the Republic of Korea. Even if the deceased acquired the nationality of North Korea pursuant to the provisions of the North Korean law, the deceased also constitutes part of the Korean Peninsula belonging to the territory of the Republic of Korea, and thus, the sovereignty of the Republic of Korea can only be recognized in light of the fact that the deceased cannot affect the acquisition and maintenance of the nationality of the Republic of Korea (see Supreme Court Decision 96Nu1221, Nov. 12, 196). Therefore, the deceased is a national of the Republic of Korea under the Nationality Act.

(2) Determination on the assertion that no relevant data exists

In an appeal litigation seeking the revocation of an administrative disposition, from the perspective of substantive rule of law and trust protection for the people who are the other party to the administrative disposition, the agency can add or change other reasons only to the extent that the original reason and basic facts are identical to those of the original disposition, and it is not allowed to assert as the grounds for disposition on the grounds of separate facts not recognized identical with the basic facts. The existence of the basic facts here is determined based on whether the social factual relations, which are the basis of the disposition, are identical in the basic point of view (see Supreme Court Decision 2004Du4482, Nov. 26, 2004, etc.).

As to the instant case, there is no specific evidence on the disposition of this case, which dismissed the Plaintiff’s consolation money on the ground that the deceased was not a national of the Republic of Korea, and on the degree of injury of the deceased, etc., the Defendant’s assertion on this issue is without merit, since the identity of each basic fact is not recognized among the grounds for a new additional disposition in the instant lawsuit.

(3) Therefore, the instant disposition dismissing the Plaintiff’s claim for consolation money on the ground that the deceased did not have the nationality of the Republic of Korea is unlawful.

3. Conclusion

Thus, the plaintiff's claim of this case seeking revocation on the ground of illegality of the disposition of this case is accepted on the ground of its reasons.

[Attachment Omission of Related Acts]

Judges Kim Jong-chul (Presiding Judge)