[1] Whether an adopted person who was not registered as a bereaved family member under the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State before the amendment constitutes "child who is a bereaved family member" under Article 5 of the same Act (negative)

[2] Whether the amendment of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State excluded a person who is a bereaved family member under Article 5 of the same Act, who was a bereaved family member under the same Act, from the "child who is a bereaved family member" is retroactively null and void and is contrary to the principle

[1] The amended Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State (amended by Act No. 4457 of Dec. 27, 191) deleted the part of the comprehensive protection bill under Article 5 (2) of the amended Act (amended by Act No. 4457 of Dec. 27, 191), which was included in the previous scope of bereaved family members, to exclude the adopted child and the adopted child from the scope of the adopted child. The part of the revised Act (including the adopted child and the adopted child) should be interpreted to have been stipulated under Article 4 of the amended Act to protect the rights that have already occurred to the adopted child, etc. before the enforcement date of the amended Act. Thus, even if a person who was not registered before the enforcement date of the amended Act had already acquired the status of the adopted child before the abolition of the ex post facto adoption system due to the amendment of the Civil Act, it is reasonable to view that Article 4 of the amended Act is no longer applicable to the person of distinguished service to the State.

[2] The entitlement to compensation under the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State is not premised on a monetary contribution of the beneficiary, but is also of a social security character that is given for the protection of the beneficiary's livelihood through the State compensation or veterans affairs for the special sacrifice of life or physical damage, and over a long-term period of time. Since specific matters such as requirements for receipt of compensation, scope of beneficiary, time of occurrence of entitlement and procedures necessary for the occurrence of entitlement are stipulated in the Act, it shall be a specific legal right only when the entitlement to compensation is stipulated in the Act. Thus, in a case where the eligibility for acquiring entitlement to compensation and the requirements for the occurrence of entitlement to compensation are statutory, it shall not be deemed a property right guaranteed by the Constitution before meeting these statutory requirements. Even if the entitlement is included in the scope of bereaved family members at the time of enforcement of the former Act on Honorable Treatment of Persons, etc. of Distinguished Service to the State before being amended by Act No. 4457 of Dec. 27, 1991, since the entitlement to compensation itself does not occur and limit of national financial capacity.

[1] Article 5(2) of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 4457 of Dec. 27, 1991); Article 5(2) and Article 6 of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 4457 of Dec. 27, 1991); Article 4 of the Addenda; Article 867 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990); Article 880 (Elimination by Act No. 4199 of Jan. 13, 1990); Article 5(2) of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 4457 of Dec. 27, 191); Article 15(2) of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State

Kim Jong-soo (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Head of Msan Veterans Branch Office

Changwon District Court Decision 2001Gu5023 delivered on May 23, 2002

February 28, 2003

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance is revoked. The defendant revoked the revocation of the decision of the bereaved family registration made against the plaintiff on September 28, 2001.

1. Details of the disposition;

A. Factual relations

The following facts are recognized that there is no dispute between the parties, or it does not clearly conflict with the whole purport of the pleading.

(1) On October 14, 1952, Kim Tae-tae (hereinafter referred to as "the deceased") was killed in battle in the Korean War in Gangwon-do Steel District, and on April 7, 1960, the plaintiff was adopted as the ex post facto breeder of the deceased on the part of his wife.

(2) On September 12, 1994, the plaintiff asserted that he is a bereaved family member of the soldiers and police officers under the former Act on the Honorable Treatment of Persons of Distinguished Service to the State (amended by Act No. 4457 of Dec. 27, 1991, hereinafter referred to as the "former Honorable Treatment Act", and in the case of a provision not subject to the amendment, hereinafter referred to as "the Honorable Treatment Act"), and filed an application for registration of bereaved family members under the Honorable Treatment of Persons of Distinguished Service to the State Act (hereinafter referred to as "registration of bereaved family members", and hereinafter referred to as "application for registration of the above registration") with the defendant. The defendant was adopted on the 16th of the same month and the next B.1 of the same month before the enforcement of the Civil Act, even if the person was not registered as bereaved family members prior to the enforcement of the Honorable Treatment Act, it constitutes the Act on the Honorable Treatment of Persons of Distinguished Service to the National Assembly.

(3) The Defendant, on September 28, 2001, included the scope of bereaved family members of a person who has rendered distinguished services to the State under the previous Honorable Treatment Act, but the amended Honorable Treatment Act, which was enforced at the time of application for registration, was excluded from the scope of bereaved family members pursuant to Article 5(2) and Article 4 of the Addenda of the amended Honorable Treatment Act, as the system was abolished due to the abolition of the system of a person who has rendered distinguished services to the State. However, the Defendant erroneously interpreted the corresponding provision of the amended Honorable Treatment Act, thereby making a decision to register the Plaintiff as bereaved family members of a person who has rendered distinguished services to the State under the amended Honorable Treatment Act, and thus

B. Relevant statutes

(1) As stated in the relevant Acts and subordinate statutes, the provisions on ex post facto and testators have been deleted under the Civil Act amended by Act No. 4199 on January 13, 1990, and the system has been abolished, and the effect as adopted by a person who was ex post facto adopted prior to the amendment pursuant to Article 2 of the Addenda to the amended Civil Act has been maintained as they are.

(2) [Attachment] In light of the provisions concerning the scope of bereaved family members of the previous Honorable Treatment Act and the amended Honorable Treatment Act as stated in the relevant Act and subordinate statutes, Article 5(1)2 of the Honorable Treatment Act provides for "children as bereaved family members", and Article 5(2) provides for the provisions concerning the adopted child, and the relevant provisions are prepared as follows.

(A) The former Honorable Treatment Act provides that, in the case of a child under Article 5(2) and Article 5(1)2, "in the case of a child under paragraph (1)2, (......) the person who has rendered distinguished services to the State was adopted without his lineal descendant who is a male descendant, the same person's adopted child (including the adopted child, the adopted child and the adopted child, and (.............)

(B) The amended Honorable Treatment Act provides that ① in the case of children under Article 5(2), and in the case of children under Article 5(1)2, both adopted by a person who has rendered distinguished services to the State without his lineal descendant shall be regarded as only one child, and ② Article 4 of the Addenda, Article 4 of the Addenda, the transitional measures concerning the scope of bereaved family members, etc., and the post-adopted children (............) registered as a person (..............) under the previous provisions before the enforcement of the Act shall be considered as registered under this Act.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff asserted that the instant disposition was unlawful for the following reasons, and sought its revocation.

(1) Article 5(2) of the amended Honorable Treatment Act maintains the provision that considers one of the persons of distinguished service to the State who have married as their bereaved family members is a provision that regards one of the persons of distinguished service to the State as their bereaved family members. Despite the amendment of the Civil Act, the existing adopted children continues to have the status as adopted children, so even under the amended Honorable Treatment Act, the Plaintiff constitutes a "child who is a bereaved family member of

(2) Unlike the reasoning of the above Paragraph (1), the provision of the amended Honorable Treatment Act as stated in Paragraph (1)(b)(b) above should be interpreted as a provision excluding the scope of bereaved family members, and the latter who did not file an application for registration prior to the enforcement of the provision shall be deemed unlawful on the following grounds.

(A) The plaintiff is clearly entitled to apply for registration under the former Honorable Treatment Act, so it is appropriate to allow the plaintiff to obtain honorable treatment as a bereaved family regardless of whether it is registered or applied for registration as a bereaved family. The amended Treatment Act of 1. b. (2) of the above 1.2 is invalid as a retroactive legislation, because it results in the ex post facto exclusion of the rights of a bereaved family who did not apply for registration prior to its enforcement from the rights that could have been acquired by the former Honorable Treatment Act, and it goes against the principle of equality and equality.

(B) According to the proviso of Section 2. A. (3) of 2.2. (3) of 201, the Minister of Patriots and Veterans Affairs, among the applicants for the registration of the adopted child on July 31, 2001, stated that the adopted child was registered as the adopted child on the family register or the transcript of the family register submitted before December 31, 1991, and the post-registered child was not registered on the card or computer system before the amendment of the amended Honorable Treatment Act. Thus, the post-registered child who received the report on January 1, 1992 and registered after the receipt of the report is recognized as the bereaved family member. The plaintiff already entered the name of the adopted child on the family register before the amendment of the amended Honorable Treatment Act in the case of the plaintiff, and the mother child's uniforms were opened on the family register before the amendment of the amended Honorable Treatment Act, and thus, the plaintiff's disposition should be recognized as the plaintiff's bereaved family member.

(C) Recognizing the Plaintiff as the bereaved family members of a soldier or policeman killed in action, granting various veterans benefits, and cancelling such benefits without any change in circumstances goes against the principle of trust protection.

B. Determination

(1) The part concerning the claim in paragraph (1) above

The above 1. (b) review the meaning of the provisions of the relevant Acts and subordinate statutes and in comparison with these provisions, the right to receive compensation under the Honorable Treatment Act takes place from the month to which the date when the application for registration was made pursuant to Article 6(1) of the Honorable Treatment Act (Article 9 of the Honorable Treatment Act). Even if a person is ex post facto under the former Civil Act, in order to acquire the right to receive compensation as a bereaved family member of a person of distinguished service to the State, a separate application should be made, and the Civil Act and the Honorable Treatment Act must have a decision to register as a bereaved family member of a person of distinguished service to the State automatically. The amended Act does not change the legislative purpose and regulatory provisions of the former Civil Act and automatically include the transitional provisions only for the person of distinguished service to the State, but does not protect the status of the person of distinguished service to the State who has already been registered, or does not separately provide the measures for postponement of the period, etc.

If such interpretation is made as above, it is reasonable to view that even if a person who was not registered as a bereaved family before the enforcement date of the amended Honorable Treatment Act has already acquired the status of an adopted child after the amendment of the Civil Act, the transitional provisions of Article 4 of the Addenda to the amended Honorable Treatment Act are not applicable, and thus, he/she cannot become a bereaved family

Therefore, the plaintiff's above A. (1) argument is without merit.

(2) The part concerning the claim in paragraph (1) (2) above

(A) The part concerning the claim of subsection (a)

The entitlement to compensation under the Honorable Treatment Act is not premised on a monetary contribution on the part of the beneficiary, but is also of a social security character that is given for the protection of the beneficiary’s livelihood through the state’s compensation or state’s financial ability, and over a long-term period of time. Thus, specific matters such as requirements for receiving compensation, the scope of beneficiary, the timing and procedure necessary for the occurrence of entitlement to compensation should be prescribed in the Act. Thus, in cases where the requirements for the occurrence of entitlement to compensation are statutory, such as eligibility for acquiring entitlement and the procedure for the occurrence thereof, it cannot be deemed a property right guaranteed by the Constitution before the entitlement to compensation satisfies these statutory requirements. Thus, even if the entitlement to compensation is included in the scope of the bereaved family at the time of the enforcement of the previous Honorable Treatment Act, unless the bereaved family is registered through the procedure provided for in Article 6 of the Honorable Treatment Act, the entitlement to compensation in the Constitution guaranteed by the Constitution does not occur in detail, and there is a limit to the eligibility of the beneficiary, the scope of entitlement, etc. are excluded from the legislative discretion ex post facto amendment to the Act.

Therefore, the plaintiff's above A. 2 (A) argument is without merit.

(B) The part of the claim in subsection (b).

① First of all, the Plaintiff’s argument 2. A. (3) was confirmed to be bereaved families or families of persons who have rendered distinguished services to the State and their bereaved families or families, or to be compensated by public data, such as a transcript of family register, which was already submitted or obtained ex officio before the enforcement of the amended Honorable Treatment Act (hereinafter referred to as “legal history”), but was not determined as bereaved families or families of persons who have rendered distinguished services to the State at the time of or at the time of submission of a transcript of family register, etc. due to administrative agency’s error, if it was not determined as bereaved families or families of persons who have rendered distinguished services to the State at the time of submission of a copy of family register, etc., even if it was confirmed that the decision was not made after the enforcement of the amended Honorable Treatment Act or submitted a report of change as a simple administrative procedure to make a decision of change

2. The following facts may be acknowledged either in dispute between the parties or in combination with the whole purport of the pleadings in each entry in the evidence No. 2 through No. 6 of subparagraph B:

Under the Military Protection Act (amended by Act No. 401 of Oct. 25, 1956, which was enforced on September 19, 1961, and was repealed by the enactment of the Military Aid Compensation Act as stated below), the head of the unit was registered as the bereaved family members of the killed soldier and received the safeguard from the State.

(b) The Military Protection Compensation Act (amended by Act No. 758 of Nov. 1, 1961, hereinafter referred to as the "Compensation Act") was amended several times before it was repealed by the former Act on Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 3742 of Aug. 2, 1984), the provisions of the Compensation Act for Children who are bereaved families of soldiers and policemen were amended by Act No. 1230 of Dec. 24, 1962, the term "children under the age of 18", the term "children under the age of 18 at the time of the death of the soldier and policemen killed in action", the term "children under the age of the death of the soldier and policemen killed in action at the time of the amendment by Act No. 2026 of Jul. 10, 1968", and the term "child under the age of the deceased in action after the death of the soldier and policemen killed in action at the time of the adoption.

In the case of a loss caused by death, the pension and other benefits were received under the newly enacted Compensation Act, was missing on September 26, 1966, and was removed from the bereaved family subject to the Compensation Act. The requirements for bereaved family subject to compensation under the Compensation Act were lost due to the opening on July 23, 1968, and the plaintiff became adult and was discarded on February 1972.

③ In preparation for the circumstances set forth in the judgment above ①, the deceased’s self-sufficiency was discarded at the same time as set forth in the above paragraph (2). In such cases, the deceased’s self-sufficiency was not subject to the proviso of paragraph (1)(3) of the Treatment Guidelines 2. A. (2) and 31 December 191, 191, which was subject to the application of the Act as a result of removal from the military register (referring to the report on the registration of the bereaved family in excess of the right to the family) and is not subject to the notification of the bereaved family registration (in this case, the notification of the registration of the bereaved family in excess of the right to the family).

Therefore, the plaintiff's above A. 2 (b) argument is without merit.

(C) The part of the claim in subsection (c).

(1) Where any defect exists in an administrative disposition, a disposition agency which has taken the administrative disposition may revoke it by itself, even without any separate legal basis, and where the beneficial administrative disposition also needs of the public interest to revoke it, and disadvantages such as infringement of the right to obtain benefits, protection of trust and stability of legal life, etc. which the parties will suffer due to such revocation, and where it is strong to justify the disadvantage that the public interest needs to sustain after comparison with it (see Supreme Court Decision 90Nu7760 delivered on August 23, 191, etc.).

② In light of the following circumstances, the instant disposition, as indicated in the reasoning of the above (1) 1. A. (3), was just to correct the initial decision due to a mistake in statutory interpretation; the fact that the amount of compensation to the legitimate beneficiaries due to the payment of compensation to those who are not entitled to bereaved family members under the Honorable Treatment Act is contrary to the concept of justice; and the Plaintiff’s vested right and trust protection due to the instant disposition, and the degree of infringement upon the stability of legal life, etc., if it is determined in accordance with social norms by comprehensively taking account of the following circumstances: (a) the public interest needs to withdraw the initial decision and make the instant disposition are strong enough to justify the disadvantages that the Plaintiff would suffer; and (b) the Defendant may withdraw the initial decision that did not meet the requirements for the registration of bereaved family members under the amended Act and take the instant disposition; and (c) thus, it cannot be deemed that the instant disposition violates the principle of trust protection.

Therefore, the plaintiff's above A. 2 (c) argument is without merit.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kang Jin-jin (Presiding Judge)