[손해배상(기)][공1993.6.1.(945),1363]
Whether a person who completed enlistment in active duty service and is appointed as a prison guard by the Minister of Justice after being transferred to active duty service falls under a soldier or police officer under the proviso to Article 2 (1) of the State Compensation Act (negative)
A person who was enlisted in active duty service and was transferred for a prescribed military education and was appointed as a guard by the Minister of Justice shall lose his status as a soldier and newly acquired his status as a prison guard. It cannot be said that a prison guard shall receive treatment equivalent to a soldier in the case of treatment, such as a soldier's injury or a soldier's injury, regardless of whether he was paid a soldier's injury or a soldier's injury, or a soldier's injury is discharged from the maturity, and it shall not be deemed that he maintains his status as a soldier or policeman. Even if he was determined as a soldier or policeman who died in relation to a soldier's duty while on duty as a guard and paid the death allowance, his status shall not be considered as a soldier or policeman due to such fact.
Article 2 of the State Compensation Act, Article 3 of the former Establishment of Correctional Institution (amended by Act No. 4157 of Dec. 30, 1989)
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)
Plaintiff 1 and five others
Korea
Gwangju High Court Decision 92Na1253 delivered on September 2, 1992
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
As to the ground of appeal by Defendant Litigation Performers
The court below rejected the defendant's assertion that the above provision of the Act on the Protection of Persons of Distinguished Services to the State Compensation Act was applied to non-party 1 who was on February 2, 1989 when ○○ University and △△ University were admitted to the Gun on February 2, 1989, and that the above provision of Article 42 of the former Military Service Act (amended by Act No. 4156 of Dec. 30, 1989) and Article 3 of the former Act on the Establishment of Correctional Institution (amended by Act No. 4157 of Dec. 30, 1989) was applied to non-party 2 who was on duty at the time of the above death of the deceased and on March 26 of the same year and completed the prescribed education. The court below rejected the above provision of the Act on the Protection of Persons of Distinguished Services to the State since the above provision of the Act on the Protection of Persons of Distinguished Services to the State was not applied to non-party 1 who was on duty.
In light of the provisions of Article 3 of the former Correctional Institution Establishment Act, Article 3 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12992 of Apr. 30, 199), and Article 2 (1) 7 of the former Military Service Act, a person who was enlisted in active service and was transferred after completing the prescribed military education and was appointed as a guard by the Minister of Justice shall lose his status as a soldier and newly obtained his status as a guard. It cannot be said that a guard is still maintained his status as a soldier because he was treated as a soldier in treatment, such as the provision of Articles 9 and 10 of the former Act on the Establishment of Correctional Institution, Article 38 of the Enforcement Decree of the same Act, and Article 104 of the Rules on the Operation of Correctional Institution (Ordinance of the Ministry of Justice No. 143 of the Ministry of Justice).
In addition, the status of a person who died in relation to the performance of official duties as a prison guard shall not be considered as a soldier or policeman because a State agency is determined as a soldier or policeman who died in the line of duty under Article 4 (1) 5 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State (a soldier or policeman who died in the course of education and training or duty as a soldier or policeman) and paid death benefits, etc., due to such fact (see Supreme Court Decision 90Da15907 delivered on Apr.
The judgment of the court below with the same purport is just and it cannot be deemed that there is a violation of law as alleged by the defendant. The arguments are without merit.
Therefore, the appeal is dismissed and all 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 Yoon Young-young (Presiding Justice)