[2] In a case where a soldier or a police officer transferred from active service or retired on duty and the degree of such disability does not fall under the category subject to the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State or the Military Pension Act (affirmative)

[2] A soldier or policeman who was discharged from military service or retired from military service by suffering from wounds in education and training or in the performance of duty (including illness in the line of duty), but is found not to have a physical disability falling within that degree of injury as determined by the Presidential Decree, in a physical examination conducted by the Minister of Patriots and Veterans Affairs under the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, and who is found not to fall within the disability degree that can receive accident compensation under the Military Pension Act, is excluded from the subject of application

1. Summary of the reasoning of the judgment below

A. In full view of the evidence cited in the judgment below, the court below acknowledged the following facts: on October 14, 1993, the commercial stuffed trees of the 3rd Military Service Corps under the defendant's control were driven at a speed of about 5 KK per hour by driving the 71 tons truck belonging to the above unit in order to undergo vehicle direction censorship at around 14:0 on October 14:0, 1993, and the above 5 tons truck belonging to the above unit was driven at a speed of 5 K per hour in order to undergo vehicle direction censorship; without finding the plaintiff Lee Ho-hee, who was a maintenance soldier who was driving the tools in accordance with the above stuff's order before the above truck, and without discovering the above plaintiff's finger-hee's hand, etc., and suffered injury, such as water dyspaf, etc., to the right side of the above truck, and the above plaintiff's 1% or more of the 1st of the 7th of the 1st of the 1997th of the city m.

B. The plaintiffs asserted that they are liable for all damages suffered by the plaintiffs under Article 2 (1) of the State Compensation Act, since the accident occurred due to the plaintiff's mistake in the performance of their duties, and the defendant asserted that the plaintiff Lee Gyeong-hee was entitled to compensation under the proviso of Article 2 (1) of the State Compensation Act, and that the defendant cannot claim compensation for damages from the defendant under the proviso of Article 2 (1) of the State Compensation Act. The court below held that Article 29 (2) of the Constitution of the Republic of Korea and the proviso of Article 2 (1) of the State Compensation Act are not applicable to combat training or other duty related to the performance of his duties, if there is a separate compensation system such as accident compensation, survivors' pension, etc. of the State Compensation Act to the State that the persons listed in the above provision of the State Compensation Act were unable to receive compensation for damages from the State under the proviso of Article 2 (1) of the State Compensation Act or the provision of the Civil Act to receive compensation for damages from the State during the performance of his duties.

2. Judgment on the grounds of appeal

The proviso of Article 2 (1) of the State Compensation Act is a provision based on Article 29 (2) of the Constitution of the Republic of Korea. If a separate compensation system, such as disaster compensation, survivors' pension, and pension for wounds, has been established for those who are listed in the above provision of the Act, such as soldiers and civilian employees, due to combat, training, or performance of duties, it is absolutely excluded from the State Compensation Act or the Civil Act for the prohibition of double compensation. Thus, they cannot directly exercise their right to claim damages against the State (see, e.g., Supreme Court Decisions 91Na12738, Feb. 11, 1992; 94Da25414, Mar. 24, 195). However, even if those who are listed in the above provision of the Act, such as soldiers, civilian employees, etc. were injured on duty due to combat, training, or other performance of duties, if they cannot receive any separate compensation such as disaster compensation, survivors' pension, etc. under the Act on the Honorable Treatment and Compensation for Persons of Distinguished Service.

However, Article 4 (1) 6 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State (including diseases in the line of duty) provides that a soldier or police officer discharged from military service or retired from military service by suffering from wounds during education and training or in the performance of his duties shall be subject to the application of the same Act in a physical examination conducted by the Minister of Patriots and Veterans Affairs. According to Articles 1 and 2 of the Military Pension Act, where a soldier or police officer appointed without such assistance is discharged from military service due to mental or physical disorder, Article 31 of the same Act shall be paid. However, Article 65 of the Enforcement Decree of the Military Pension Act provides that accident compensation shall be classified into compensation for death and disability, and Article 67 shall be paid at least within Grade 3 of the Military Pension Act, and Article 6 of the Military Pension Act provides that a person who is discharged from military service or retired from military service shall not be subject to the same physical disability examination of Grade 1, Table 1, Table 2, and Table 6 of the Enforcement Rule of the Military Pension Act.

Nevertheless, the court below erred in the misapprehension of legal principles as to the scope of application of the proviso of Article 2 (1) of the State Compensation Act and the Civil Act, since a soldier was discharged from active service or retired from active service by suffering from wounds in the course of performing his duties, it cannot receive compensation under the above Acts and subordinate statutes, since the proviso of Article 2 (1) of the State Compensation Act is applicable. The court below erred in the misapprehension of legal principles as to the scope of application of the proviso of Article 2 (1) of the State Compensation Act, and since such illegality of the court below clearly affected the conclusion

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)