Where a disposition can be taken to recover a portion erroneously paid by the party who received compensation, etc. pursuant to Article 18 (1) 2 of the Act on the Compensation for Persons who performed Special Military Missions.

In full view of the content and purport of Article 18(1)2 of the Act on the Compensation for Persons who performed Special Military Missions (hereinafter “the Compensation Act”), the unique nature of revoking a beneficial administrative disposition on social security administration, etc., it is reasonable to view that re-re-re-re-collection of the amount of compensation should be made only in cases where the relevant party suffers any disadvantage due to the relevant party’s fault or gross negligence with respect to the receipt of compensation, etc. in light of whether the relevant party was responsible for intentional or gross negligence with respect to the amount of compensation, the interval between the date of payment of compensation and the date of disposition of recovery, and whether the beneficiary consumes the amount of compensation, etc.; and the details and degree of disadvantage that the relevant party would suffer through the disposition of collection of the amount of compensation erroneously paid; and the same situation as the degree of the need for public interest to collect the amount of compensation erroneously paid; the need for public interest to collect the amount equivalent to the amount of compensation paid; and the need to compare the rights to obtain benefits, protection of trust and stability in legal stability; and to recover the extent that the relevant party’s need should be justified.

Article 18(1)2 of the Act on the Compensation for Persons who performed Special Military Missions and Article 4(2) of the Administrative Procedures Act

Supreme Court Decision 2011Du31697 Decided April 10, 2014 (Gong2014Sang, 1050)

Plaintiff (Attorney Park Jong-young, Counsel for the plaintiff-appellant)

Persons of Special Military Service Compensation Deliberation Committee

Seoul High Court Decision 2011Nu12896 decided July 6, 2012

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

The grounds of appeal are examined.

1. As to whether compensation is paid erroneously

Based on the facts acknowledged by the adopted evidence, the lower court recognized that the Plaintiff’s activities, etc. involved in the adaptation of works in the Beder Zone in the Yang-gu, Gangwon-do from October 1, 1968 to October 3, 1968, cannot be deemed to have performed the “special mission” under Article 2 subparag. 1 of the Act on the Compensation for Persons who performed Special Military Missions (hereinafter “Compensation Act”), and thus, it constituted a case where the Defendant determined otherwise and paid the Plaintiff KRW 137,476,680 to the Plaintiff under the Compensation Act.

Examining the record in light of the relevant legal principles, the lower court’s determination is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence by recognizing facts in violation of logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, thereby failing to exhaust all necessary deliberations

2. As to the violation of the principle of protecting trust in the disposition of this case

A. Article 18(1) of the Compensation Act provides that “If a person who received compensation, etc. under this Act falls under any of the following subparagraphs, the State shall recover all or part of the compensation, etc.,” and subparagraph 2 provides that “an erroneous payment is made.”

Meanwhile, compensation, etc. under the Compensation Act has both the characteristics of state compensation and veterans affairs related to special military missions as well as the characteristics of social security (see Supreme Court Decision 2007Du1302, Nov. 13, 2008). Accordingly, the entitlement to compensation, etc. under the Compensation Act belongs to the social security entitlement so-called social security entitlement. However, the public interest to be achieved through the cancellation of the beneficial administrative disposition in the administrative area whose contents are social security benefits are the same as the financial interest formed through the government burden, etc., and while the beneficiary is in violation of private interest, such as protection of trust and stability of legal life, etc. by the cancellation of the beneficial administrative disposition, the beneficiary cannot be readily concluded to be more important or larger than that of the beneficiary due to the need for public interest unless there is any intentional or gross negligence on the part of the beneficiary with respect to defects in the beneficial administrative disposition.

In full view of the contents and purport of the above provisions and the unique characteristics of the revocation of beneficial administrative dispositions in the area of social security, when recovering the portion of compensation, etc. erroneously paid from the party who received the compensation, etc. under Article 18 (1) 2 of the Compensation Act, it is reasonable to view that the recovery of the compensation, etc. should be made in full view of the following: (a) whether the party was responsible for intentional or gross negligence with respect to the payment of compensation, etc.; (b) whether the amount of compensation, the date of payment of compensation, and the date of redemption and whether the beneficiary consumeds compensation; (c) whether the recovery of the compensation, etc. is harsh to the beneficiary; (d) the details and degree of the need for public interest to be achieved through the collection of the amount of compensation, etc. erroneously paid; and (e) the details and degree of disadvantage that the party would suffer; and (e) the need to collect the amount of compensation, etc., and (e) the need to compare the disadvantages suffered by the party who received the compensation, etc. to the extent that the need for public interest is justified.

B. According to the reasoning of the lower judgment, the lower court determined that the instant disposition cannot be deemed unlawful in light of the following: (a) based on the following: (b) acknowledged facts based on the evidence adopted; and (c) determined that the instant disposition pursuant to Article 18(1) of the Compensation Act was rendered for the purpose of properly and appropriately compensating persons who performed special military missions and their bereaved family members after correcting the payment of erroneously paid compensation; and (d) the public interest to be achieved through such purpose is larger

However, this decision of the court below is hard to accept in the following respects.

According to the reasoning of the judgment below and the evidence adopted, the plaintiff submitted an application and its supporting materials to the defendant in accordance with the form prescribed by the Compensation Act and subordinate statutes at the time of applying for the payment of compensation. The "official work" column of the special duty performance statement attached to the above application includes the plaintiff's service details, etc. on the pertinent yearly basis. The "official work" column stated only "it has been engaged in education, training, and official work for performing special duties in the Beder Zone in the Yang-gu area, and the name of official work, etc. is not memory." Accordingly, when examining whether the plaintiff performed a special duty, the defendant decided to pay the compensation of this case on the basis of the action detailed report, which is the internal data of the unit to which the plaintiff belongs (hereinafter "the report of this case"). However, although the report of this case clearly stated that the plaintiff performed the duty of this case as "support assistance" rather than acting as a person who performed a special military mission, the defendant is merely a person who performed a special military mission, and the defendant did not hear or investigate the fact for 20 years after the testimony or investigation.

Examining these facts in light of the above legal principles, even if the Defendant was erroneous in determining whether the Plaintiff was eligible for compensation in the process of determining the compensation payment of this case, it is merely due to the Defendant’s fault, and it cannot be deemed that the Plaintiff, who received the decision on the payment of compensation according to the procedure of application as prescribed by the Compensation Act and subordinate statutes,

Therefore, the court below should have determined the legitimacy of the disposition of this case, based on the following: (a) the specific contents of the public interest needs to be achieved by the defendant through the disposition of this case where the amount corresponding to the erroneously paid compensation, etc. is recovered; (b) whether the plaintiff has been holding the compensation received by the defendant in accordance with the decision of the payment of the compensation of this case; (c) whether the plaintiff has already consumed the compensation of this case; and (d) whether the disposition of this case ordering the recovery of a large amount of compensation, etc. after a considerable period from the date on which the decision of the payment of compensation of this case was made, which infringes on the plaintiff's trust and stability of legal life; and

Nevertheless, the court below determined otherwise only for the reasons stated in its holding. In so doing, the court below erred by misapprehending the legal principles on the principle of protection of trust in relation to the recovery of compensation pursuant to Article 18 (1) of the Compensation Act, by failing to exhaust all necessary deliberations, which affected the conclusion of its judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Shin Young-chul (Presiding Justice)