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(영문) 대법원 2010. 9. 9. 선고 2010두7710 판결

[지원공상군경요건해당처분취소][미간행]

Main Issues

[1] The legislative intent of Article 73-2(1) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, which is a provision on compensation for military merit

[2] In a case where Gap received basic military training after entering the military, and received an application for registration of a person who has rendered distinguished services to the State after receiving the diagnosis of "EMs Nos. 100 and 200," as a result of the operation conducted under his superior's superior's command during the combat sports hours for physical training, such as a simple medical treatment due to the occurrence of pain on the left-hand knee, etc., and received an injury under his superior's command, the case affirming the judgment below affirming the judgment below which held that the above wounds caused the concurrence of negligence by Gap without any inevitable reason, on the ground that Gap's negligence did not constitute a soldier or policeman on duty, and thus, Gap's disposition was lawful

[Reference Provisions]

[1] Article 73-2 (1) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State / [2] Article 73-2 (1) of the Act on the Honor

Plaintiff-Appellant

Plaintiff

Defendant-Appellee

Head of Jeonju Veterans Affairs Office

Judgment of the lower court

Gwangju High Court ( Jeonju) Decision 2010Nu226 decided April 2, 2010

Text

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Reasons

We examine the grounds of appeal.

1. Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter “Act”) provides that a soldier or police officer discharged from active service or retired from office by suffering from wounds in education and training or in the performance of duty (including diseases in official duties), who is determined to have suffered physical disability falling within that degree of injury under Article 6-4, in a physical examination conducted by the Minister of Patriots and Veterans Affairs, shall be called “

Meanwhile, Article 73-2(1) of the Act provides that Article 9 of the former Enforcement Decree of the Act (amended by Presidential Decree No. 21686, Aug. 13, 2009) provides that "the Minister of Patriots and Veterans Affairs shall apply mutatis mutandis the provisions of Articles 9, 11 through 62 to the wounded and his/her family members who met the requirements under Article 4(1)6 of the Act and who suffered from wounds due to his/her own negligence or due to concurrent reasons due to his/her own negligence or due to his/her own negligence without any inevitable reason, among persons who suffered from injuries, shall be excluded from persons who have rendered distinguished services to the State and their family members registered pursuant to the provisions of Articles 4(1) and 6; however, when the wounded and their family members were wounded due to reasons corresponding to the standards for official duty prescribed by Presidential Decree, the Minister of Patriots and Veterans Affairs shall apply the provisions of Article 94-3 of the former Enforcement Decree of the Act (amended by Presidential Decree No. 21686, Aug. 13, 2009).

Ultimately, Article 73-2 (1) of the Act, which is a provision on compensation for military police officers equivalent to persons who have rendered distinguished services to the State, is excluded from persons who have been killed or wounded due to concurrent causes due to their own negligence or their own negligence without any inevitable reason among persons falling under Article 4 (1) 6 of the Act, but is a provision which is established to provide compensation in the same manner as persons who

2. Recognizing the reasoning of the judgment of the court of first instance, it is reasonable to view that the Plaintiff was injured during the process of undergoing basic military training after entering the Plaintiff, such as providing simple treatment to the left-hand knee-free, etc., and eventually undergo an operation in the course of performing official duties under his superior's command. Thus, the difference in this case can be deemed as an injury or disease with proximate causal relation to official duties, but it seems that the Plaintiff's injury suffered at the time of undergoing basic military training is not serious to the degree of causing the difference in this case. ② The Plaintiff had already been knee-free, and the deaf-gu games had already been extremely kne-free, and it can be deemed that the Plaintiff could have suffered from serious injury to kne-free, etc. in the course of conducting basic military training. In full view of the above, the Plaintiff's negligence cannot be deemed to have been caused by the Plaintiff's failure to participate in the sports in this case's knee-gnee-gel-gel without any inevitable circumstances.

In light of the above provisions and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the requirements for assistance and injury in the military under Article 73-2 (1) of the Act, or in violation of the rules of evidence as to the plaintiff's negligence,

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)

따름판례

- 대법원 2011. 3. 10. 선고 2010두23309 판결 [공2011상,757]

- 대법원 2011. 7. 28. 선고 2011두5209 판결 공보불게재

평석

- 체력단련행위 중 공상을 당한 의무복무 병병에 대한 지원공상군경으로의 보상 대법원 201099선고 2010두7710 판결 및 대법원 2011310 선고 2010두23309 판결을 중심으로 이무상 韓國法學院

관련문헌

- 윤강열 지원공상군경의 요건 노동법실무연구 . 제1권 : 김지형 대법관 퇴임기념 제1권 / 사법발전재단 2011

- 배병호 행정소송법상 직권심리주의의 한계 : 대법원 2013. 8. 22. 선고 2011두26589 판결을 중심으로 공법연구 43집 3호 / 한국공법학회 2015

- 이태우 생활대책용지 공급대상자 선정신청에 대한 거부행위의 처분성 유무 대법원판례해설 89호 / 법원도서관 2012

참조조문

- [1] 국가유공자 등 예우 및 지원에 관한 법률 제73조의2 제1항

- [2] 국가유공자 등 예우 및 지원에 관한 법률 제73조의2 제1항

본문참조조문

- 국가유공자 등 예우 및 지원에 관한 법률 제4조 제1항 제6호

- 국가유공자 등 예우 및 지원에 관한 법률 제6조의4

- 국가유공자 등 예우 및 지원에 관한 법률 제73조의2 제1항

- 국가유공자 등 예우 및 지원에 관한 법률 제4조 제1항

- 국가유공자 등 예우 및 지원에 관한 법률 제6조

- 국가유공자 등 예우 및 지원에 관한 법률 제9조

- 국가유공자 등 예우 및 지원에 관한 법률 제11조

- 국가유공자 등 예우 및 지원에 관한 법률 제62조

- 국가유공자등예우및지원에관한법률시행령(구) 제94조의3

- 국가유공자 등 예우 및 지원에 관한 법률 제73조의2 제1항

- 국가유공자 등 예우 및 지원에 관한 법률 제73조의2 제1항

- 국가유공자 등 예우 및 지원에 관한 법률 제73조의2 제1항

- 국가유공자 등 예우 및 지원에 관한 법률 제73조의2 제1항

원심판결

- 광주고법 2010. 4. 2. 선고 (전주) 2010누226 판결