[현역병입영처분취소] 확정[각공2017상,100]
In a case where the director of the regional military manpower office: (a) sought revocation of the disposition on the grounds that the Note 2 of [Attachment 2] No. 285 of the Inspection Rules for Military Physical Examination, etc. demanded the director of the regional military manpower office “A” to record the defective assignment of a person to be enlisted in active service and the related materials from the first examination to the three years before the first examination date; and (b) it
In a case where the director of the regional military manpower office: (a) sought revocation of the disposition for enlistment in active service against the director of the regional military manpower office “A” in Article 285 Note 2 [Attachment Table 2] of the Inspection Regulations on Military Physical Examination, etc. (hereinafter “Regulations”) demanding the record from the first examination to three years before the date of the examination to the date of the first examination; and (b) the head of the regional military manpower office sought revocation of the disposition on the grounds that the provision violates the principle of equality under the Constitution, the case held that it is difficult to deem that the medical opinion is that “hys are likely to have a visual disorder without any special cause, which is the maximum of ten years of age, and is difficult to be considered as a medical vision that occurs thereafter; and (c) there is a risk of using it as a means of evasion of military service due to the limitation in the method of inspection dependent on the examination method to which the inspector’s supervision is involved in the determination of the maximum correctional eyesight; and (d) there is a need to regard the person who submitted the objective medical record from the first examination to three years before the date of the examination without reasonable grounds.
Article 11(1) of the Constitution of the Republic of Korea, Article 27 of the Administrative Litigation Act, Article 12(4) of the Military Service Act, and Rule of Inspection, such as physical examinations of soldiers, [Attachment 2] No. 285
Plaintiff
The director general of the Chungcheong Military Manpower Office
September 1, 2016
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The defendant's assignment of enlistment in active service against the plaintiff on April 8, 2015 shall be revoked.
1. Details of the disposition;
A. On September 13, 2005, the Plaintiff was assigned to be enlisted in active service, subject to a judgment of physical grade II (a judgment of physical grade I higher than that of the draft department) in physical examination for the first disciplinary person, and was assigned to be enlisted in active service.
B. On January 22, 2015, the Plaintiff filed an application with the Defendant for change of a military service disposition, and on March 2, 2015, the Plaintiff was judged as a physical grade 3 due to not less than c.00D but less than 5.0D in the horizontal horizontal field (a difference between 3.00D and less than 5.00D), and filed an objection with the Defendant on March 11, 2015.
C. On April 7, 2015, a draft physical examination doctor of the central physical examination center who was requested by the Defendant to conduct a precise physical examination, again rendered a judgment of physical grade 3 against the Plaintiff as at least by diggingout (the difference between the horizontal horizontal excavation rate of between 3.00 and 5.00D). On April 8, 2015, the Defendant rendered a disposition of enlistment in active service to the Plaintiff (hereinafter “instant disposition”).
[Reasons for Recognition] Unsatisfy, Gap evidence 2, 7, Eul evidence 1 to 3, and 6, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The main text of Article 2 of the Military Service Rule [Attachment 2] No. 285 of the Military Service Rule (hereinafter “the Regulation of this case”) of the Ministry of Health and Welfare No. 285 of the Ministry of Health and Welfare (hereinafter “the Ministry of Health and Welfare”) of the Ministry of Health and Welfare (hereinafter “the Ministry of Health and Welfare”) provides the Plaintiff with a document preservation period compared to the inspectors who prepared medical records, etc. for neglect of military service. The provision of this case is unconstitutional because it violates the principle of equality under the Constitution. Furthermore, according to objective opinions of doctors, such as a medical examination report on the use of illness (Evidence No. 3 of the Ministry of Health and Welfare) on January 14, 2015, the Plaintiff’s physical grade judgment, which is a binding act, should be revoked, although the Plaintiff’s physical grade judgment and supplementary order should be changed to the Plaintiff pursuant to Article 285 of the Medical Service Rule (Attachment 2 of the Ministry of Health and Welfare) of the Ministry of Health and Welfare.
B. Relevant statutes
The entries in the attached Table-related statutes are as follows.
C. Determination
1) Whether the instant provision is unconstitutional
In light of the following circumstances, which are acknowledged as having comprehensively taken into account the overall purport of arguments in the evidence Nos. 5 through 8 of Eul, namely, “hys shall not be deemed to have existed since the age of 10,00 without any special cause, and it is difficult to be deemed to be a very low time that occurs after the age of 10,000 with the maximum vision development.” In light of the medical opinion, it is difficult to view the provision of this case requiring an objective opinion from the first examination date to the three-year period before the date of the first examination to be a violation of the principle of equality by discriminating against the inspector who submitted medical records during the pertinent period of time and the inspector who did not, without reasonable grounds, the examination method dependent on the clinical test in which the supervision of the inspector is involved in the determination of the maximum corrected eyesight, and thus, it is likely to be abused as a means of evasion of military service.
In addition, the standard for the degree and evaluation of illness and mental and physical disorder in attached Table 2 shall be strictly and equally applied to the examination rules, such as the physical examination of the person in exclusive charge of draft physical, etc., so that the doctors in exclusive charge of draft physical, etc. shall determine physical grade depending on whether the above facts fall under the above evaluation criteria objectively exist (see Supreme Court Decision 2002Du9407, Jun. 13, 2003). The instant provision limits the scope of evaluation data to be determined based only on the records from the first examination to the three years before the first examination date in relation to the time of determination of the person in exclusive charge of draft physical, and therefore it is difficult
Therefore, this part of the Plaintiff’s assertion is without merit to further examine.
2) Whether the instant disposition is lawful
According to Article 12(4) of the Military Service Act and Article 12(4) of the Military Service Act and attached Table 2 of the standards for the degree and evaluation of illness, mental and physical disorder shall be determined as the maximum correction eyesight, but objective opinion of a doctor shall be attached thereto, and data related to medicine shall be determined only by the records from the first examination to the date before three years, and if the eyesight of one eye is below 0.6, it shall be determined as physical grade 4.
In light of relevant Acts and subordinate statutes or the aforementioned circumstances, the Plaintiff submitted only a medical certificate (Evidence A 3 through 5) issued on January 2, 2015 to the effect that the maximum correction eyesight of one eye does not exceed 0.6, and only a photo of an inner climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic clip,
Therefore, the instant disposition is lawful, and the Plaintiff’s assertion on a different premise is without merit.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.
[Attachment] Relevant Statutes: omitted
Judges Yang Sung-Gyeong (Presiding Judge)