Final Judgments and Amended Statutes, Equality Review in Social Security, and Broadcasting Review: Standards of Decision in Three Supreme Court Public-Law Judgments

Question

Through three judgments, this brief examines whether a subsequent action brought under a statute amended after a final judgment conflicts with res judicata, how a breach of the principle of equality is reviewed in the recognition of dependants under national health insurance, and the standards for reviewing objectivity and fairness according to the characteristics of the broadcasting medium and programme.

The first issue is the question addressed in Decision 2019Da255416, namely "Can the State reacquire, under the amended Pro-Japanese Property Reversion Act, land in respect of which the decision of reversion to the State has been finally revoked?" The second issue is the question addressed in Decision 2023Du36800: "Is it a breach of equality to exclude a same-sex partner from dependant status, unlike a partner in a de facto marriage?"

The third issue is the question addressed in Decision 2015Du49474: "Is a sanction justified against a pay channel that broadcast a viewer-produced historical documentary dozens of times?" All three judgments ask how, on the record, the boundaries of the statutory text and the substantive factors of decision are to be determined.

Material to check

First (2019Da255416): this judgment addresses whether, after a judgment revoking a decision of reversion to the State has become final in administrative litigation, the State may bring a civil action seeking, among other things, the return of ownership of the land concerned under the proviso to paragraph 2 of the Addenda to the amended Act. On the record, the decision of reversion to the State should be compared with the final judgment revoking it in order to examine the grounds for revocation and the scope of the property concerned, and the register and documents on title should be used to confirm the present ownership and the circumstances of possession. Next, whether the application of the amended provisions is excluded should be determined from the wording of the judgment, by ascertaining whether the final judgment had the effect of excluding the property concerned from the scope of the former Act.

Second (2023Du36800): the issue addressed in this judgment is whether a disposition depriving an employee subscriber's same-sex partner of dependant status is unlawful in light of the duty of prior notice and the constitutional principle of equality. To verify on the record the standards set out in the summary of the judgment, the report of acquisition of dependant status, the operational guidelines on status management, and whether a letter of guarantee from acquaintances was submitted should be examined. Next, the dispositions of loss of status and change to regional subscriber, the insurance premium notices and the prior notice should be used to confirm how the matter came to be recorded as "processed in error" and whether notice was given.

Third (2015Du49474): the issue addressed in this judgment is whether a sanction imposed on a viewer-produced historical documentary constitutes a breach of the duties of objectivity and fairness in broadcasting and of the duty to respect the honour of the deceased. To verify on the record the standards set out in the summary of the judgment, the broadcast footage and programming records should be examined to establish how the programme came to be broadcast dozens of times and its overall flow. Next, the sanction disposition and the official documents, newspaper articles and interview records on which the production was based should be compared to determine whether the matter was subject to review suited to the "characteristics of each medium, each channel and each programme".

Possible readings

In Case 2019Da255416, the issue was whether, where a judgment revoking a decision of reversion to the State of the property of a pro-Japanese and anti-national collaborator has become final in administrative litigation, the State is barred from bringing a civil action seeking, among other things, the return of ownership under the proviso to paragraph 2 of the Addenda to the amended Special Act on the Reversion to the State of Property of Pro-Japanese and Anti-National Collaborators.

In Case 2023Du36800, the issues were whether the constitutional principle of equality applies to administrative acts taken in accordance with internal rules or an established administrative practice and how a breach of that principle is to be determined, and whether discriminatory treatment by the National Health Insurance Service, a special public-interest corporation, may be held unlawful more broadly than that by a private person.

In Case 2015Du49474, the issues were whether the subject of review for fairness and public interest under the Broadcasting Act is limited to news programmes; the meaning of objectivity, fairness and balance and of "matters on which social issues or interests are sharply opposed"; and whether the characteristics of each broadcasting medium, each channel and each programme must be taken into account in the review.

What the decisions held

Supreme Court en banc Decision 2019Da255416 delivered on 19 December 2024 held as follows: "The proviso to paragraph 2 of the Addenda to the new Act provides: 'Provided, That this shall not apply where it has been finally determined by a final judgment that the property is not subject to this Act.'" In this judgment, the majority opinion regarded the main text of paragraph 2 of the Addenda as a deeming provision intended to avoid complexity, and the proviso as a provision under which the new Act does not apply to property that is the subject of a final judgment. It held that, because a final judgment of revocation has the same effect as excluding the property from the scope of the former Act, the new Act cannot be applied retroactively even after it has entered into force, and that a claim for ownership-transfer registration premised on such application cannot be accepted. It found that the proviso was inserted during the legislative deliberations on the grounds of respect for final judgments and the prohibition of retroactive legislation, and that an interpretation distinguishing administrative and civil litigation so as to overturn the final judgment does not accord with the legislative intent. It stated that, from the perspective of Article 13(2) of the Constitution, reliance based on a final judgment must be strongly protected, and that the purpose of the Act is not defeated because the new Act continues to apply to other property.

Supreme Court en banc Decision 2023Du36800 delivered on 18 July 2024 held as follows: "Accordingly, where an administrative agency has enacted internal rules and an administrative practice has become established through its taking administrative acts in a consistent direction in accordance with those rules over a long period, the constitutional principle of equality also applies to administrative acts taken through such internal rules or established administrative practice." Under this judgment, the constitutional principle of equality applies equally to acts taken through internal rules and long-standing administrative practice. Whether persons are in the same position is determined by reference to the meaning and purpose of the law, and where there is differential treatment, its justification is examined under the principle of proportionality. The Court stated that dependant status is determined by whether the persons form an economic community of life, and that it is lawful for the guidelines to include de facto marital relationships. It found that a same-sex partner also forms a community based on the duties of cohabitation, support, cooperation and fidelity and can submit a letter of guarantee from acquaintances, and so is no different from an opposite-sex partner. It held that the disposition denying dependant status despite this was discrimination on the ground of sexual orientation, and that it was also procedurally defective in having been made without prior notice.

Supreme Court en banc Decision 2015Du49474 delivered on 21 November 2019 held as follows: "[1] The Broadcasting Act delegates to the Korea Communications Standards Commission the review of fairness and public interest across the entire field of broadcasting, and the Regulations on Broadcasting Review accordingly require fairness and objectivity across the entire field of broadcasting and adopt them as review standards; therefore, the programmes subject to review cannot be regarded as limited to news programmes." In this judgment, the majority opinion established that the review of fairness and public interest is not confined to news but extends to broadcasting as a whole. Objectivity is explained as transmission without distortion, fairness as transmission without bias, and balance as the guarantee of substantive opportunity. The majority considered that a relaxed review must be applied in view of the characteristics of the programme as a pay, non-terrestrial broadcast, viewer-produced, and an educational documentary. Its position is that, judged by the overall impression, it is difficult to conclude that the programme went beyond raising doubts about the established interpretation so as to distort the truth. It held that, in the absence of special circumstances, there is no breach of the provision on respect for the honour of the deceased in respect of public figures who are subjects of historical assessment, and that there is no ground for sanction where the facts alleged concern the public interest and are true or there is reasonable ground to believe them true; it found that each broadcast in this case was aimed at historical debate and reassessment and was thus solely for the public interest, and that there was reasonable ground to believe the facts true on the basis of foreign government documents, newspaper articles, interviews and the like, so that the broadcasts were not subject to sanction.

Practical checklist

First, can the State reacquire, under the amended Pro-Japanese Property Reversion Act, land in respect of which the decision of reversion to the State has been finally revoked? On the record, compare the grounds for revocation and the scope of the property concerned in the decision of reversion to the State and the final judgment of revocation against the register and documents on title, and check whether the exclusion from application of the amended provisions applies.

Second, is it a breach of equality to exclude a same-sex partner from dependant status, unlike a partner in a de facto marriage? On the record, use the report, the operational guidelines and the disposition to compare whether there is a community of life based on "the duties of cohabitation, support, cooperation and fidelity" and whether the required documents were submitted, and check whether discrimination is established.

Third, is a sanction justified against a pay channel that broadcast a viewer-produced historical documentary dozens of times? On the record, use the broadcast footage, the programming records and the sanction disposition to compare the overall flow and whether balance was reflected under the "relatively relaxed standard of review", and check whether a breach is established.

Glossary

Whether a subsequent action under a statute amended after a final judgment conflicts with res judicata (2019Da255416): The majority opinion regarded the main text of paragraph 2 of the Addenda as a deeming provision intended to avoid complexity, and the proviso as a provision under which the new Act does not apply to property that is the subject of a final judgment. It held that, because a final judgment of revocation has the same effect as excluding the property from the scope of the former Act, the new Act cannot be applied retroactively even after it has entered into force, and that a claim for ownership-transfer registration premised on such application cannot be accepted. It found that the proviso was inserted during the legislative deliberations on the grounds of respect for final judgments and the prohibition of retroactive legislation, and that an interpretation distinguishing administrative and civil litigation so as to overturn the final judgment does not accord with the legislative intent. It stated that, from the perspective of Article 13(2) of the Constitution, reliance based on a final judgment must be strongly protected, and that the purpose of the Act is not defeated because the new Act continues to apply to other property. The factors of decision identified include the wording and structure of the Addenda provision, the intent of the legislature, and the need for an interpretation consistent with the Constitution.

Recognition of dependants under national health insurance and the standard of review under the principle of equality (2023Du36800): The constitutional principle of equality applies equally to acts taken through internal rules and long-standing administrative practice. Whether persons are in the same position is determined by reference to the meaning and purpose of the law, and where there is differential treatment, its justification is examined under the principle of proportionality. The Court stated that dependant status is determined by whether the persons form an economic community of life, and that it is lawful for the guidelines to include de facto marital relationships. It found that a same-sex partner also forms a community based on the duties of cohabitation, support, cooperation and fidelity and can submit a letter of guarantee from acquaintances, and so is no different from an opposite-sex partner. It held that the disposition denying dependant status despite this was discrimination on the ground of sexual orientation, and that it was also procedurally defective in having been made without prior notice. The factors of decision identified include the meaning and purpose of the legal provisions, essential sameness, and justification under the principle of proportionality.

How fairness review varies according to the characteristics of the medium, channel and programme (2015Du49474): The majority opinion established that the review of fairness and public interest is not confined to news but extends to broadcasting as a whole. Objectivity is explained as transmission without distortion, fairness as transmission without bias, and balance as the guarantee of substantive opportunity. The majority considered that a relaxed review must be applied in view of the characteristics of the programme as a pay, non-terrestrial broadcast, viewer-produced, and an educational documentary. Its position is that, judged by the overall impression, it is difficult to conclude that the programme went beyond raising doubts about the established interpretation so as to distort the truth. It held that, in the absence of special circumstances, there is no breach of the provision on respect for the honour of the deceased in respect of public figures who are subjects of historical assessment, and that there is no ground for sanction where the facts alleged concern the public interest and are true or there is reasonable ground to believe them true; it found that each broadcast in this case was aimed at historical debate and reassessment and was thus solely for the public interest, and that there was reasonable ground to believe the facts true on the basis of foreign government documents, newspaper articles, interviews and the like, so that the broadcasts were not subject to sanction. The factors of decision identified include the influence of each medium and the characteristics of each channel and each programme.

Sources and limitations

This paper is based solely on the original texts of Articles 11(1), 21, 23 and 36(1) of the Constitution of the Republic of Korea, Articles 8(2), 27 and 30 of the Administrative Litigation Act, Articles 5 and 9 of the National Health Insurance Act, and Articles 32, 33 and 100(1) of the Broadcasting Act, as published on the Korea Law Information Center, and on the texts of Supreme Court Decision 2019Da255416 delivered on 19 December 2024, Supreme Court Decision 2023Du36800 delivered on 18 July 2024, and Supreme Court Decision 2015Du49474 delivered on 21 November 2019.

It is academic research material setting out general legal principles and standards for reviewing case records; it is not legal advice on any individual case or an opinion for submission to a court.

Points left open

2019Da255416: Where lie the limits on relitigating, by a civil action after an amended Act has entered into force, a dispute that was concluded by a final judgment?

2023Du36800: What reasonable ground could there be for distinguishing dependant status solely on the basis of the partners' sex where the community of life is the same?

2015Du49474: How far may a documentary on a channel of limited influence raise doubts without presenting opposing views?

When to reconsider

2019Da255416: To be revisited if records of the application of the new Act to other property not covered by a final judgment come into question.

2023Du36800: To be revisited if the guidelines, the recognition criteria or the facts concerning the community of life change.

2015Du49474: To be revisited if the interpretation of the review regulations concerning viewer-produced programmes and educational documentaries changes.

Statutes referred to

• 대한민국헌법 제11조 제1항, 제21조, 제23조, 제36조 제1항
• 행정소송법 제8조 제2항, 제27조, 제30조
• 국민건강보험법 제5조, 제9조
• 방송법 제32조, 제33조, 제100조 제1항

Decisions referred to

• 대법원 2024. 12. 19. 선고 2019다255416 전원합의체 판결 · Decision ledger
• 대법원 2024. 7. 18. 선고 2023두36800 전원합의체 판결 · Decision ledger
• 대법원 2019. 11. 21. 선고 2015두49474 전원합의체 판결 · Decision ledger

Verification status

The provisions cited (Articles 11(1), 21, 23 and 36(1) of the Constitution of the Republic of Korea; Articles 8(2), 27 and 30 of the Administrative Litigation Act; Articles 5 and 9 of the National Health Insurance Act; and Articles 32, 33 and 100(1) of the Broadcasting Act) and the judgments discussed (Supreme Court Decision 2019Da255416 delivered on 19 December 2024, Supreme Court Decision 2023Du36800 delivered on 18 July 2024, and Supreme Court Decision 2015Du49474 delivered on 21 November 2019) were checked against the current statutes on the Korea Law Information Center and the original texts of the Supreme Court judgments as of 15 October 2026. This paper cites only the three judgments listed among the judgments discussed.