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(영문) 대법원 2018. 3. 15. 선고 2017두65074 판결

[보훈보상대상자비해당결정취소][공2018상,720]

Main Issues

Where a soldier, etc. died during an event or a meeting held by a military unit (department) to which he/she belongs, but his/her superior falls under “the head of a unit (department) or the head of a affiliated agency, or is not the exercise of command, control, and management by delegation from him/her, whether it falls under the requirements of Article 1 of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation (negative)

Summary of Judgment

The Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “Act”) delegates the specific criteria and scope of persons eligible for veteran’s compensation, including a person killed in a disaster, to the Presidential Decree. [Attachment 1] of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “Enforcement Decree of the Act on Persons Eligible for Veteran’s Compensation”) provides that “any person who died from an accident or a disaster in the course of performing duties or education and training” other than duties or education and training (paragraphs 1 and 2). In addition, in the latter case, the requirements of “any person who died from an accident or a disaster in the course of a fraudulent act or workplace event” other than education and training are added to the requirements of “the head of the relevant unit (department) or the head of the relevant affiliated agency under the direction, control, and management of the head of the relevant agency or the head of the relevant affiliated agency.” Furthermore, [Attachment 1] recognizes the death of a person who is a person serving mandatory military service under subparagraph 9 as a person who is subject to command and management of his/her superior or the head of the relevant military agency.”

[Reference Provisions]

Article 2(1) and (2) of the Act on Support for Persons Eligible for Veteran’s Compensation; Article 2(1)1 [Attached Table 1] subparagraphs 1, 9, and 10 of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation;

Plaintiff-Appellant

Plaintiff (Attorney Hwang Sang-hoon, Counsel for the plaintiff-appellant)

Defendant-Appellee

Head of the Jeonbuk-dong Veterans Branch Office

Judgment of the lower court

Gwangju High Court ( Jeonju) Decision 2017Nu1303 decided September 25, 2017

Text

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

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal that falls under subparagraph 10 of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation

A. Article 2(1) of the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “Act”) provides that “A soldier, police officer, or fire-fighting official who died in the line of duty or during education and training not directly related to national defense or security, or the protection of people’s lives and property (including a person who died in a disease)” as a person eligible for veteran’s compensation who died in the line of duty or during the line of duty or education and training (including a person who died in a disease) shall be determined by Presidential Decree, taking into account (1) the degree and scope of the requirements for a person eligible for veteran’s compensation under each subparagraph of paragraph (1) through (2) the duty, etc., national defense and security, or the protection of people’s lives and property, and (2) the circumstance and degree of his/her negligence were killed or wounded, and Article 2(1) of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “Enforcement Decree of the Act on Persons Eligible for Veteran’s Compensation”) provides for the provision of attached Table 1 [Attachment 1] and 2 subparag.

As above, ① the Veterans Compensation Act delegates to the Presidential Decree the detailed criteria and scope of the requirements for persons eligible for veteran’s compensation, including the police officers killed in a disaster; ② the Enforcement Decree of the Veterans Compensation Act provides that the criteria and scope of the requirements for persons killed in a disaster and who died in an accident or a disaster (Article 10) other than those cited in subparagraphs 1 and 2, those who died in an accident or a disaster (Article 10) other than the performance of duties or education and training. In the latter case, the requirements for “the person who died in an accident or a workplace” (Article 10) are added to the requirements for “the head of the unit to which he belongs or the head of the affiliated agency” (Article 1) or “the head of the affiliated agency’s command, control, and management (Article 1). Furthermore, [Attachment 1] provides that a person who died in an accident or a disaster during the physical training as a person responsible for mandatory military service under subparagraph 9 is also recognized as a person who died in a disaster and thus, the scope of the subject of command or supervision of the head of the affiliated agency.

B. The lower court determined that Article 2(1)1 [Attachment 1] 10 of the Enforcement Decree of the Patriots and Veterans Compensation Act does not fall under Article 2(1)1 of the Act, on the ground that: (a) although the Deceased took part in March 3, 2012, he was present at the meeting of all non-commissioned Officers of Non-Party 2, the best officer among non-commissioned Officers of Non-Party 2, who is the executive diffusion officer of Non-Party 1 on the proposal of Non-Party 1 of the △△△△△△△△△△ Group Man University affiliated with the Plaintiff; (b) since Non-Party 2 was the captain of the △△△ Group affiliated with the Deceased, Non-Party 3 was the best among non-commissioned officers belonging to the Man branch; (c) although Non-Party 2 was the head of the unit to which the Deceased belongs, it did not fall under the head of the unit to which the Deceased belongs; and (d) Non-Party 2 was delegated with the direction

In light of the above legal principles, the judgment of the court below is just and acceptable. In so doing, it did not err by misapprehending the legal principles as to subparagraph 10 of the Enforcement Decree of the Veterans Compensationer Act.

2. As to the ground of appeal that falls under subparagraph 1 of attached Table 1 of the Enforcement Decree of the Patriots and Veterans Compensation Act

A. The lower court acknowledged the following facts based on the admitted evidence.

1) The instant table and the instant table and the instant table were not reported to the e.g., the e., the e.g., the e., the e.g., the e., the e., the e., the e., the e.g., the e., the e.g., the e., the e.,

2) After a thorough meeting of the Deceased, Nonparty 2 divided the team with Nonparty 2’s proposal to bear the cost of singing. Nonparty 2 paid the cost of singing with Nonparty 2’s speech.

3) When the Deceased had his singing in a singing room and had Nonparty 2 pointed out matters related to the work from Nonparty 2, the Deceased told Nonparty 2 that “(B) has been interested in the work,” and “at the same time,” it means that Nonparty 2 was “(B)” and “at the same time.” Nonparty 2 said that Nonparty 2 was “at the same time,” and Nonparty 2 was “at the time when Nonparty 2 was her drinking,” and Nonparty 2 died. The Deceased was used in a singing room and her house, and died.

B. Examining these facts in light of the relevant legal principles, it is reasonable to view that the instant low-supper and dry-suping and singing-suping group as private friendship promotion group, which is not related to the performance of duties performed between noncommissioned Officers. Therefore, the lower court’s determination that it is difficult to recognize that the deceased died from an accident or disaster during the performance of duties under Article 2(1)1 [Attachment 1] subparagraph 1 of the Enforcement Decree of the Patriots and Veterans Compensation Act is acceptable. In so doing, it did not err by misapprehending the legal doctrine on subparagraph 1 of the Enforcement Decree of the Patriots and Veterans Compensation Act.

3. Conclusion

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 Kim So-young (Presiding Justice)