[손해배상(자)][공1997.5.1.(33),1226]
Whether a public duty personnel falls under the proviso of Article 2 (1) of the State Compensation Act (negative)
According to the provisions of Article 2(1)9 and Article 5(1) of the Military Service Act, since the public interest service personnel are called up to support the expenses, surveillance, protection or administrative affairs, etc. necessary for the performance of the public interest of the State agencies or local governments, and are assigned to supplementary service as a person engaged in international cooperation or the promotion of art and sports, they cannot be said to be a soldier unless they are called up and assigned to the military service. Thus, even though Article 75(2) of the Military Service Act provides that the bereaved family members of a person who died in the line of duty among the public interest service personnel under the proviso of Article 75(2) of the same Act shall be paid compensation under the Act on the Honorable Treatment of Persons of Distinguished Service to the State, even if
Supreme Court Decision 90Da15907 delivered on April 26, 1991 (Gong1991, 1493) Supreme Court Decision 92Da4395 delivered on April 9, 1993 (Gong1993Sang, 1363) Supreme Court Decision 94Da25414 delivered on March 24, 1995 (Gong195Sang, 1721)
Plaintiff and one other (Attorney Park Hun-chul et al., Counsel for the plaintiff-appellant)
Daegu Metropolitan City Dong-gu (Attorney Yoon-sung, Counsel for the plaintiff-appellant)
Daegu High Court Decision 96Na5507 delivered on December 12, 1996
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
The proviso of Article 2 (1) of the State Compensation Act provides that "if a soldier, civilian military employee, police officer, or member of homeland reserve forces is killed in action, training, or performance of duties, or is injured in action, while on duty or on duty in a facility, automobile, warship, aircraft, or other means of transport used by him/her or his/her bereaved family member, he/she or his/her bereaved family member shall not claim damages under this Act and the Civil Act, if he/she or his/her family member is entitled to receive damages, such as disaster compensation
However, according to Article 4 of the Act on the Organization of National Armed Forces, the term "military personnel" refers to a person who serves the armed forces in time of war and peace. Under Articles 2 (1) 9 and 5 (1) of the Military Service Act, since a public interest service personnel is called up to support expenses, surveillance, protection, administrative affairs, etc. necessary for the performance of public interest and to foster international cooperation or art and sports, and is assigned to supplementary service, he shall not be deemed a soldier unless he is called up and assigned to the military (see Article 2 of the Military Personnel Management Act). Accordingly, even though Article 75 (2) of the Military Service Act provides that the bereaved family members of a person who died on duty among the public interest service personnel service shall be compensated for with the Act on the Support of Persons of Distinguished Services to the State, even though the public interest service personnel shall not be deemed as a soldier, civilian employee, police officer, or homeland member for whom a claim for damages is limited under the State Compensation Act pursuant to the proviso to Article 2 (1) of the State Compensation Act.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)