[2] Whether compensation paid under the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State shall be deducted in calculating damages (negative)

[2] Under the former Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 5291 of Jan. 13, 1997), the system that pays compensation, such as pension and various allowances, to persons of distinguished service to the State, not only has the character of social security to promote their livelihood stability and welfare improvement, but also differs from the system that provides compensation for damages as it implements honorable treatment for their contributions and sacrifices for their countries. Thus, the death benefits or survivor pension paid or to be paid pursuant to Article 11 and Article 12 of the same Act and Article 20 of the Enforcement Decree of the same Act shall not be deducted from the amount of damage that the State is liable for.

1. On the first ground for appeal

A person who was enlisted in active service and was transferred to military service under Article 25 of the Military Service Act and was appointed as a prison guard under Article 3 of the Establishment of Correctional Institution Guard Units Act (amended by Act No. 5291 of Jan. 13, 1997) shall be deemed to lose his status as a soldier and to have obtained his status as a prison guard other than a soldier. Thus, he does not constitute a soldier as provided in the proviso of Article 2(1) of the State Compensation Act (see, e.g., Supreme Court Decisions 90Da15907, Apr. 26, 1991; 92Da4395, Apr. 9, 1993). Thus, there is no reason to argue that the judgment of the court below to the same purport is just and opposed to this.

2. On the second ground for appeal

The Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State (amended by Act No. 5291, Jan. 13, 1997; hereinafter the Act changed the name of the Act from July 13, 1997 to "the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State"; hereinafter the same shall apply) provides that the State shall compensate persons, etc. of distinguished service to the State according to their degree of living according to the degree of their contributions and sacrifice (Article 1); and that the State shall not suspend or exclude persons, etc. of distinguished service to the State (Article 7); and that persons, etc. of distinguished service to the State who have contributed to or made a sacrifice in the State and their bereaved family members; referring to Article 78 and Article 79 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State; see Article 29 of the Enforcement Decree of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State and Article 197 of the Act.

3. On the third ground for appeal

The fact-finding or determination of the ratio of comparative negligence in a claim for damages due to tort falls under the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity, and in light of the circumstances of the accident of this case recognized by the records, it is reasonable for the court below to recognize 10% negligence of the deceased. Thus, as discussed in the judgment below, there is no error of law in the misapprehension of legal principles as to comparative negligence. There is no

4. 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 Final Young-young (Presiding Justice)