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(영문) 대법원 2017.11.09 2017두42071

국가유공자등상이등급결정

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to Articles 5(2)15, 6-2, and 7(7) of the former Act on Assistance to Patients suffering from Actual or Potential Diseases, Etc. and Establishment of Related Associations (amended by Act No. 13605, Dec. 22, 2015; hereinafter “the former Act”), Article 6-3 of the Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Services to the State (hereinafter “Act on the Honorable Services to the State”) shall apply mutatis mutandis to physical examinations, etc. necessary to determine disability ratings for high-tension patients who are the types of potential aftereffectss of defoliants, and the method of determining disability ratings shall be prescribed by Presidential Decree. According to delegation under Article 7(7) of the Act on the Support for Patients of Actual or Potential Diseases, etc. and Establishment of Related Associations (amended by Presidential Decree No. 27253, Jun. 21, 2016; hereinafter “Enforcement Decree of the Act on the Honorable Treatment of Patients”).

However, Article 2 of the Addenda to the Enforcement Decree of the defoliant Act (Presidential Decree No. 25778, Nov. 24, 2014) provides that “for a person who applied for a physical examination under Article 7 at the time this Decree enters into force, or a person who is to conduct a physical examination ex officio by the Minister of Patriots and Veterans Affairs, disability ratings shall be determined in accordance with the amended provisions of attached Table 1,” and Article 2 of the Addenda to the Enforcement Decree of the defoliant provides that “for a person whose disability grade was determined under the previous provision at the time this Decree enters into force, and whose disability grade was lower according to the amended provisions of attached Table 1, notwithstanding the absence of a change in the degree

In succession, “Article 1 of the Addenda to the instant case” and “Article 1 of the Addenda.”