2010du8935 Disposition of revocation of the refusal of bereaved family member

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A person shall be appointed.

△△△ Veterans Branch Office

A person shall be appointed.

Seoul Place of Service

A litigation performer, mistake, gambling, inside, and gambling.

Seoul High Court Decision 2009Du23060 Decided April 16, 2010

September 30, 2010

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Recognizing the reasoning of the first instance judgment, the lower court acknowledged facts as indicated in its reasoning, and, based on Article 5(1)2 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “Act”), deemed that a child defined as a bereaved family member of a person of distinguished service to the State refers to a legal child defined in the relative part of the Civil Act. However, even if the Plaintiff, who was a child born out of wedlock, was registered as the deceased’s child after the birth report as the deceased’s child, and was registered as the deceased’s child on the family register, the deceased became aware of the Plaintiff or the Plaintiff’s parental relation was created under the law.

On the ground that the Plaintiff cannot be viewed as a child who becomes a bereaved family member of a person who rendered distinguished services to the State.

However, we cannot accept the above determination by the court below for the following reasons.

The purpose of this Act is to contribute to promoting the stabilization of livelihood and the improvement of welfare of persons who have rendered distinguished services to the State and their bereaved family members who have sacrificed or contributed to the State and supporting the military police officers, etc. corresponding to those who have rendered distinguished services to the State, thereby contributing to the promotion of patriotism for the people (Article 1), and the basic ideology is to enable substantial compensation to ensure that the honorable lives of persons who have rendered distinguished services to the State and their bereaved family members are maintained and guaranteed in accordance with the degree of their

In light of the purpose and basic ideology of Article 5(1)1 of the Act and the provisions on the scope of bereaved families, etc., the term "child" under Article 5(1)2 of the Act shall be interpreted not only to be in the parent-child relationship, but also to include not only the child in de facto parent-child relationship who is not affiliated with the father or mother but also the child in de facto parent-child relationship who is not affiliated with the father or mother.

According to the reasoning of the judgment below and the records, although the deceased started a marital life on or around 1948, he did not report the marriage and born the plaintiff among them, and was killed in the Army on October 9, 1949, and the deceased gave birth to the plaintiff on February 15, 1950, and the deceased was killed in action on August 1, 1950. Thus, even if the birth report after the death of the deceased cannot be deemed as a child in de facto parent-child relationship because the birth report after the death of the deceased did not have the effect as recognition, the plaintiff shall be deemed as a child in de facto parent-child relationship, as long as it can be recognized as a child in de facto parent-child relationship.

Nevertheless, the court below determined that the deceased cannot be deemed to have become a child of a person who has rendered distinguished services to the State on the grounds that the deceased's recognition of the plaintiff or that the deceased and the Plaintiff's parental relation were not established under the law. In this regard, the court below erred by misapprehending the legal principles on the scope of bereaved family members of a person who has rendered distinguished services to the State

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Lee Hong-hoon

Justices Kim Gi-hwan

Justices Lee In-bok