민주화운동관련자 명예회복 및 보상 등에 관한 법률에 따른 보상금의 지급을 구하는 소송의 형태에 관한 소고 ― 대법원 2008. 4. 17. 선고 2005두16185 전원합의체 판결에 대한 실무적 관점에서의 검토를 중심으로 ―

Recently, there has been an increase in administrative litigations involving the request for compensation to former pro-democracy activists in Korea, and in this case, the main problem posed is which lawsuit to file. In other words, when a person asserting himself as one of the victims of pro-democracy movement demands the administrative agency to pay compensation and the request is not accepted, it is debatable whether he should file a revocation suit on the refusal against the agency or a suit against the state directly, demanding a reasonable sum of money in compensation. This article focuses on the examination on how the Supreme Court of Korea and administrative lower court in Korea deal with this problem and some issues arising from each type of lawsuit. In addition this article suggests solutions thereto from the practical point of view. In conclusion, it entirely depends on what is the core dispute with compensation whether a plaintiff files a revocation suit against the administrative agency or a compensation suit against the state. When the agency refuses to accept the request for compensation on the ground that it can not recognize the claimant to be qualified for compensation, the plaintiff should file a suit against the agency for revocation of the refusal. On the contrary, when a qualified person is not satisfied with the amount of compensation allotted by the agency, the plaintiff should file a suit against the state for increase in the compensation.