[2] Where a soldier, etc. who was injured on duty was first paid compensation pursuant to the State Compensation Act, and then claimed payment of veterans' benefits, such as compensation under the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, whether such payment may be denied on the ground that he/she was paid compensation (negative)

1. Article 4 (1) of the former Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Services to the State (amended by Act No. 11817, May 22, 2013; hereinafter referred to as the "former Act on Persons, etc.") provides that "The persons, etc. of distinguished Services to the State shall be granted honorable treatment as determined by the former Act on Persons, etc. of Distinguished Services to the State, and Article 11 (1) shall be classified into the categories of veterans' benefits, allowances, and lump-sum death benefits, and Article 12 provides that "Provided, That the same shall not apply to persons excluded from the eligibility for compensation pursuant to this Act or other Acts, Chapter 1), Chapter 2, soldiers and policemen killed or wounded in action ( subparagraph 3), Article 4 (3) of the former Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Services to the State, and the amount of compensation determined and publicly notified by the Commissioner of the Statistics Korea based on the statistics and statistics regarding household consumption (3).

Meanwhile, Article 29(2) of the Constitution of the Republic of Korea provides, “The State or a local government shall not claim compensation for any damage that a soldier, a civilian military employee, a police officer, or any other person prescribed by the Act has received in connection with the performance of his/her duties, such as combat and training, against a public official’s tort in addition to compensation prescribed by the Act.” Article 2(1) of the State Compensation Act provides, “The State or a local government shall compensate for the damage inflicted on another person by intention or negligence in the course of performing his/her duties, in violation of the statutes, or in the event a public official is liable to compensate for the damage under the Guarantee of Automobile Accident Compensation Act: Provided, That where a soldier, a civilian military employee, a police officer, or a local reserve member was killed or wounded in the course of performing his/her duties in relation to combat and training, etc. or

2. The proviso of Article 2 (1) of the State Compensation Act is based on Article 29 (2) of the Constitution. The provision on compensation under the former Act on Persons of Distinguished Service constitutes “other Acts and subordinate statutes” under the proviso of Article 2 (1) of the State Compensation Act. Thus, where a person is eligible to receive veterans’ benefits, such as compensation falls under the requirements for persons of distinguished service under the former Act on Persons of Distinguished Service to the State, it constitutes “when a person is eligible to receive compensation” under the former Act on Persons of Distinguished Service to the State (see Supreme Court Decisions 93Da2969, Dec. 13, 1994; 200Da39735, May 10, 200). Therefore, where a soldier, a civilian military employee, a police officer, or a local member of the State reserve forces (hereinafter “military personnel, etc.”) falls under the requirements of the former Act on Persons of Distinguished Service to the State in connection with the performance of combat, training, etc., it shall be deemed that a State compensation can be filed against the State.

However, if a soldier, etc. who was injured on duty in relation to combat, training, etc. was first paid damages pursuant to the State Compensation Act, and then claimed the payment of veteran's benefits, such as compensation, under the former Act on Persons of Distinguished Services to the State Compensation, the defendant may not refuse the payment of veteran's benefits, such as compensation, based on the following circumstances.

(1) Unlike that the proviso of Article 2(1) of the State Compensation Act explicitly provides that “if a person is eligible to receive compensation pursuant to other Acts and subordinate statutes, he/she shall not claim compensation under the State Compensation Act, etc., the former Act on Persons of Distinguished Services to the State does not stipulate that a person who has received compensation under the State Compensation Act shall be excluded from the subject of the

(2) The purport of Article 29(2) of the Constitution of the Republic of Korea and the proviso of Article 2(1) of the State Compensation Act is to prevent excessive Treasury expenditures and imbalance between the injured soldiers, etc., by operating the system for compensating for damages to military personnel, etc. who perform dangerous duties, instead of guaranteeing that the injured soldiers, etc., who suffered damage in the course of performing their duties may not claim damages from the State, etc. due to their official duties, in lieu of guaranteeing that they may receive reliable and uniform damages with no risk of insolvency, regardless of whether they have been or not at fault or not, according to the compensation procedure, regardless of the degree of their fault or not. Thus, the injured soldiers, etc. cannot claim damages from the State, etc. against the State, etc. for the same damage.

However, the amount of compensation for soldiers and policemen on duty determined by Article 12 of the former Act on the Persons of Distinguished Services to the State is determined according to the degree of sacrifice and contribution of the persons of distinguished services to the State taking into account household survey statistics and household consumption expenditure. The amount of compensation determined is determined according to the degree of sacrifice and contribution of the persons of distinguished services to the State taking into account the amount of household consumption expenditure. While the compensation is paid up until each month after the completion of treatment under the State Compensation Act, even if there is a disability after the completion of treatment under the State Compensation Act, only the amount of the monthly salary, actual monthly income, or average wage at the time of injury multiplied by the degree of loss of labor force at the time of injury, and the degree of negligence is limited according to the degree of negligence. In most cases, the amount of compensation for veterans’ benefits, such as compensation under the former Act

Considering the legislative purport of the proviso of Article 2(1) of the State Compensation Act, the difference between the purpose of compensation under the former Act on Persons of Distinguished Services to the State Compensation and the purpose of calculation method of compensation under the State Compensation Act, it is difficult to interpret the proviso of Article 2(1) of the former State Compensation Act to the effect that in cases where a person is entitled to compensation under the former Act on Persons of Distinguished Services to the State Compensation Act, it is prohibited from claiming compensation under the State Compensation Act.

3. According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially admitted by the lower court, the lower court determined that the Defendant’s decision on non-payment of veterans’ benefits to the Plaintiff who meets the requirements for subsidization of the person who rendered distinguished services to the State Act (hereinafter “instant disposition”) was unlawful on the ground that, on the basis that, upon receiving the amount of compensation for damages under the State Compensation Act, the State Compensation Act does not explicitly prohibit claims under other Acts and subordinate statutes, such as the former Act on Persons of Distinguished Services to the State, and that, upon receiving the compensation under the State Compensation Act, the State Compensation Act does not constitute the proviso to Article 12(1) of the former Act on Persons of Distinguished Services to the State.

Examining the reasoning of the judgment below in light of the aforementioned legal principles, it is justifiable to conclude that the disposition of this case was unlawful on the ground that the Plaintiff was already paid damages under the State Compensation Act on the grounds that the Plaintiff had already been paid damages under the former Act on the Persons of Distinguished Services to the State before being registered as the police officer on the grounds that the Plaintiff was paid compensations under the former Act on the Persons of Distinguished Services to the State. In so doing, contrary to what is alleged

4. 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 Park Sang-ok (Presiding Justice)