Bereaved Families of Fallen Military and Police Officers May Gain Right to Claim Compensation from the State... Full Military Service Period Included

Amendment to the State Compensation Act Passed at Cabinet Meeting
Unconstitutional Risk of 'Prohibition of Double Compensation' Principle
Full Reflection of Lost Income During Military Service Period Calculation

A legislative amendment has been prepared that provides a legal basis for the bereaved families of soldiers or police officers who died in action or in the line of duty to claim compensation from the state for their mental suffering.

On the 24th, the Ministry of Justice announced that the amendment to the State Compensation Act, which establishes grounds for compensation claims by the bereaved families of fallen or deceased soldiers and police officers, passed the Cabinet meeting on the same day.

Minister of Justice Han Dong-hoon. Photo by Jinhyung Kang aymsdream@

Article 2, Paragraph 1 of the State Compensation Act stipulates that when the state or local governments cause damage due to unlawful official duties by public officials or entrusted persons, victims or their bereaved families who receive compensation under the State Compensation Act cannot receive other compensations such as disaster relief funds, survivor pensions, or disability pensions under other laws.

In other words, when soldiers or police officers die in action or in the line of duty and receive separate compensation, neither they nor their bereaved families could file a state compensation claim against the state.

This 'prohibition of double compensation' clause in the State Compensation Act was newly established in 1967. It was a measure to limit the compensation claims of soldiers and others to reduce the financial burden on the state after numerous casualties occurred during the Vietnam War in the 1960s.

This provision has been continuously challenged as unconstitutional in academic and practical circles. In July 1972, the Supreme Court ruled the clause unconstitutional. However, then-President Park Chung-hee dismissed all nine Supreme Court justices who had expressed opinions of unconstitutionality from reappointment and incorporated the clause, which the Supreme Court had ruled unconstitutional, into the Yushin Constitution.

Article 29, Paragraph 2 of the current Constitution also states, "For soldiers, military personnel, police officers, and others prescribed by law, compensation for damages related to combat, training, or other official duties shall be limited to compensation prescribed by law, and claims for damages against the state or public organizations due to unlawful acts in the course of official duties by public officials shall not be allowed." Constitutional petitions have been filed regarding this, but they were dismissed on the grounds that "individual provisions of the Constitution cannot be subject to constitutional review." In 1996, a constitutional decision was also made regarding the State Compensation Act's designation of local reserve forces as subjects of the prohibition of double compensation.

The amendment to the State Compensation Act passed at the Cabinet meeting on this day newly establishes Article 2, Paragraph 3, stating, "Notwithstanding the proviso of Paragraph 1, the bereaved families of soldiers, military personnel, police officers, or reservists who died in action or in the line of duty may claim compensation for their mental suffering."

The Ministry of Justice explained, "Currently, the Constitution, the State Compensation Act, and precedents do not allow any state compensation claims by soldiers or police officers or their bereaved families if they are eligible for compensation upon death in action or in the line of duty under the principle of 'prohibition of double compensation.' In the first trial of the state compensation lawsuit filed by the bereaved family of the late Private Hong Jeong-gi, the court dismissed the plaintiffs' claims on the 13th based on the proviso of Article 2, Paragraph 1 of the State Compensation Act."

Furthermore, the Ministry of Justice explained the background for pursuing the legal amendment: "The bereaved families' inherent right to claim compensation for mental suffering is independent and separate from the rights of fallen or deceased soldiers and police officers. Blocking this right lacks legal justification. Additionally, the 'Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State' and the 'Act on Support for Persons Eligible for Veterans' Compensation' do not consider compensation for the bereaved families' 'mental suffering' in calculating compensation, so it is necessary to guarantee the right to claim compensation separately from statutory compensation."

This amended law will apply from the time of enactment to cases where soldiers, police officers, etc., die in action or in the line of duty. However, cases currently pending before the Headquarters Review Committee, Special Review Committee, or District Review Committee, as well as lawsuits pending in court at the time of enforcement, will also be subject to the amended law.

Meanwhile, at the same Cabinet meeting, an amendment to the Enforcement Decree of the State Compensation Act was also passed, which includes the entire military service period in the employable period when calculating state compensation amounts for men subject to military service obligations.

Article 2, Paragraph 1 of the current Enforcement Decree stipulates that regarding the employable period, "If the victim is male, the period shall be comprehensively considered based on the military service period under the Military Service Act at the time of the accident, the possibility of military service by the victim, and the possibility of adjusting the service period."

According to this regulation, the Supreme Court has excluded the military service period of men subject to military service obligations from the employable period used to calculate lost earnings. This has been criticized for causing disadvantages to those subject to military service and for resulting in lower compensation amounts compared to female victims who are not subject to military service, raising concerns about unconstitutional unequal discrimination.

The amendment to the Enforcement Decree revises Article 2, Paragraph 1 to stipulate, "Even if the victim has the possibility of military service, the military service period shall be fully included in the employable period."

The Ministry of Justice stated, "To ensure that the bereaved families do not suffer disadvantages despite fulfilling their military service obligations for the state and fellow citizens, we will promptly submit this amended bill to the National Assembly and do our best to have it passed. If the amended Enforcement Decree is promulgated soon, necessary measures will be taken so that it can be immediately applied to state compensation and lawsuits."

Minister of Justice Han Dong-hoon said, "Those who fulfill their military service obligations for the state and fellow citizens deserve respect and reward, but there are unreasonable systems that cause disadvantages. These two bills are efforts to actively identify and improve such unreasonable systems."