상이연금등급결정처분취소
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Article 23 of the former Military Pension Act (amended by Act No. 10649, May 19, 201; hereinafter the same) provides that where a soldier retires from office under the condition of disability due to a disease or injury caused by official duty, a soldier shall be paid a pension for wounds according to his/her class from that time to the time of his/her death (Article 1(1)), and that each class of his/her class of pension shall be prescribed
(2) Accordingly, Article 47 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 24643, Jun. 28, 2013; hereinafter the same) stipulates that the disability ratings under Article 23 of the former Military Pension Act are classified according to the disability ratings table (hereinafter referred to as “age ratings table”) but the criteria for the determination of disability ratings are not provided for in the former Enforcement Decree of the Military Pension Act or the Enforcement Rule of the Military Pension Act.
However, the Ministry of National Defense has published and used a explanatory statement on the criteria of the above grade judgment. The above explanatory statement is merely a book published by the Ministry of National Defense with help to handle affairs within the Ministry of National Defense, and there is no externally binding effect to the public or the court. Thus, the above explanatory statement cannot be a direct standard for determining the disability rating under the Military Pension Act. However, if it is difficult to determine the disability rating solely with the provisions of the Military Pension Act, it is reasonable to view that the above explanatory statement can be considered within the extent that it does not deviate from the objective rationality.
Therefore, the determination of disability ratings under the Military Pension Act is based on the relevant provisions of the Military Pension Act and the purpose of legislation, as well as the relevant provisions of the Public Officials Pension Act, the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, the Industrial Accident Compensation Insurance Act, the Enforcement Decree and the Enforcement Rules