(영문) 서울행정법원 2016.6.29. 선고 2015구단59290 판결

A. The deceased B (hereinafter referred to as "the deceased") entered the Army on August 18, 1953 and discharged from military service on October 10, 1956.

B. On September 8, 1961, the deceased maintained a matrimonial relationship with the Plaintiff on September 8, 1989, the deceased was diagnosed by the sexual biopia hospital at the Tol University (hereinafter “Maiopia hospital”) around March 1989, and died of the pulmonary cancer on November 9, 1989.

C. On December 4, 2014, the Plaintiff asserted that the deceased was killed and wounded in action during the Korean War or immediately after the war, and applied for registration of the deceased as a soldier or policeman wounded in action under the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter “the Act”) (hereinafter “instant application”).

D. However, on June 8, 2015, following the deliberation and resolution of the Board of Patriots and Veterans Entitlement, the Defendant decided and notified the Plaintiff on June 8, 2015 that the Deceased did not constitute a person of distinguished service to the State (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 4-1, 2, 3, 6, 7, 8, 9, 11, 12, 13, 23 through 28, 5, Eul evidence 1 through 5, 8, 12 and 13-13, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The deceased was killed or wounded in action as prescribed by the Act on Persons of Distinguished Services to the State because he participated in the Korean War or immediately following the Korean War, and thus constitutes a soldier or policeman wounded in action. The instant disposition is unlawful.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

1) Details of the disposition

Before determining the legitimacy of the instant disposition, the contents of the instant disposition shall be determined.

In general, in cases where an administrative agency takes a disposition through a document, it is necessary to determine which disposition is made in accordance with the language and text of the written disposition, and the content of the disposition can be interpreted in consideration of other circumstances, such as the background of the disposition and the attitude of the other party after the disposition, only in extenuating circumstances, including where it is unclear whether the administrative agency has made a certain disposition (see Supreme Court Decision 2013Du19349, May 14, 2015).

Article 4(2) of the Act on Support for Persons Eligible for Veteran’s Compensation provides that “A person who applies for registration pursuant to Article 6(1) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State shall be deemed to have filed an application for registration on the date he/she applied for registration.” Therefore, upon the Plaintiff’s application in this case, the Plaintiff shall be deemed to have filed an application for registration of a person eligible for veteran’s compensation. However, the Plaintiff’s application in this case shall be deemed to have also been made at the same time under the following circumstances: (a) the title of the disposition in this case is deemed to be considered to have been written in the evidence No. 1; (b) the Defendant’s main text merely cited the Act on Support for Persons of Distinguished Services to the State by stating that the deceased does not constitute a person eligible for veteran’s compensation; and (c) it is difficult to regard the Plaintiff’s application as the Defendant’s application for registration in this case’s unlawful manner or in the process of this case’s non-registration.

2) Whether the disposition is lawful

Therefore, I will look at the legitimacy of the non-specific decision of the person who rendered distinguished services to the State.

A) The applicant has the burden of proving that he/she suffered wounds in combat action or in the performance of duties corresponding thereto among persons who have rendered distinguished services to the State (see Supreme Court Decision 2011Du26589, Aug. 22, 2013).

In addition, it is reasonable to view that the verification of whether a person was wounded in combat action or in the performance of duties corresponding thereto (hereinafter referred to as " combat action, etc.") is not a natural scientific proof that is not a suspicion of conjection, but a comprehensive examination of all evidence in light of the empirical rule, barring special circumstances, it is highly probable that there was a fact in light of the empirical rule, and that the determination requires a high probability that the general public would not be doubtful. Therefore, in a lawsuit seeking revocation of the registration of a person who has rendered distinguished services to the State, if there is a dispute as to whether a person was wounded in combat action, etc., it is insufficient to prove that the person was wounded in the course of performing his/her duties and that the general public was wounded in combat action, etc., the proof of the person who has been wounded in the course of performing his/her duties should be sufficiently inferred to the extent that the person

B) In the instant case:

(1) According to the results of inquiry about Gap's evidence 4-2, 15, 16, 17, 22, Eul's evidence 9 and 12, Gap's evidence 2 and 7, and the fact inquiry about the chief of the National Scientific Investigation Research Institute of this Court, the following facts may be acknowledged.

① On October 28, 1989, the EXE on the deceased’s 20m x-ray photographs from the third and fourth mix of the deceased’s 3 cm away from the right side to the right side of about 0.7 cm in length (hereinafter “the metal substance of this case”).

○ The Director of the National Scientific Investigation Research Institute shall, with respect to the fact inquiry by this Court, do the above X-ray photograph.

Pursuant to the premise that the rate of 1:1 is adjusted, "the metal substance of this case is presumed to be the depth of 7.62m ball cartridges." The representative 7.62m ball cartridges consisting of 30-06m ball cartridges, 308 wind posters, 7.62m x 54m , etc., and 308 wind posters are recorded as being used for the first time in the Vietnam War. Thus, if the deceased suffered total loss during the Korean War, the metal substance of this case is highly likely to be 30-06 Spings or 7.62x 54m , and in light of the size and form of the metal substance of this case, it seems that the metal substance of this case is close to 7.62m x 54m m 7.62m m m2m m m m m m spher, which was used for hunting in the Republic of Korea."

Of the certificate of death of the deceased, “The reason for death” was printed as “I, at the time of military service, sent back to the chest and died on October 11, 1989.” However, two residents of the apartment house living at the time of the Deceased, signed and sealed their seals on their own in the column for the certificate of death at the bottom.

② On March 25, 2003, the Plaintiff issued an application for registration of a person who has rendered distinguished services to the deceased (hereinafter referred to as “application for registration of a soldier or policeman killed in action in 2003”) to the Defendant, but received a decision corresponding to the requirements of a soldier or policeman killed in action from the Defendant on November 17, 2013. However, the deliberation and resolution of the Board of Patriots and Veterans Entitlement dated November 4, 2003 at the time stated that the instant metal material appears to be a wounded person during military service.

(2) On the other hand, the following circumstances are also acknowledged in full view of Gap evidence 3, evidence 4-4, evidence 4-4, 7, 8, 11, 19, 20, and 27; Gap evidence 2, evidence 7; the court's fact inquiry results with respect to the chief of the National Institute of Scientific Investigation and Investigation, and the purport of the whole arguments.

① At the time of filing an application for registration of soldiers and policemen killed in action in 2003, the Plaintiff entered that when and when the deceased participated in a combat action, the deceased’s death was unknown. However, if the deceased actually sustained a total combat action, it would be natural to notify the Plaintiff, who was the wife of the date, time, place, etc. of the combat action, at least the time and place the deceased suffered total action. Therefore, it is difficult to understand that the Plaintiff did not know of the date, time, place, etc. of combat action that the deceased sustained total action.

At the time of filing an application for registration of soldiers and policemen killed in 2003, the Plaintiff asserts that the deceased sustained a total of battles during the litigation of this case that the deceased incurred a total of battles. As such, the Plaintiff did not provide an explanation to the extent that it became possible for the deceased to specifically specify the combats after the death.

There is no circumstance suggesting that the deceased voluntarily filed an application for registration of persons of distinguished service to the State or demanded any compensation to the Government on the ground that he/she sustained a total of 32 years of war from October 10, 1956 to November 9, 1989 after the deceased discharged on October 19, 1956.

② If the deceased was killed in action, it is natural to apply for registration of a person of distinguished service to the State without delay, as long as the crypical substance of this case presumed to have been returned from the body X-ray photograph taken before the deceased died was found. However, the Plaintiff filed an application for registration of a soldier or policeman killed in action in 2003 only after about 13 years from the date of death of the deceased.

① No objective evidence is found that the deceased participated in both fields of war and received treatment at a 36 military hospital. First of all, since the date of the deceased’s entry into the Army after the Korean War on August 18, 1953 (hereinafter July 27, 1953), it is not deemed that the deceased participated in combat action conducted before the time of the said cooperation. Next, the deceased’s residence card or military register certificate does not appear to have been treated at the time of the military hospital. In light of the fact that the military medical records management was relatively strict, and the above residence list appears to have been written in approximately 1-2 months on the part of the deceased, even if the status of the deceased’s work was somewhat confused after the war, it is difficult to view that the details of the treatment were not stated even if the deceased received treatment at the time of his military hospital. Moreover, the Minister of National Defense (the head of the agency head of the Army Agency: the head of the competent military department) could not confirm whether the deceased was affiliated with the 35th military hospital.

① The Plaintiff submitted as evidence the deceased’s photograph (Evidence No. 10 No. 1, 2, and 11-2 of the evidence No. 10) of the wounded captain, the type of the Korean War, the No. 625, the No. 25, the No. 11, and the International Professor of the Constitutionality of the Republic of Korea. According to the evidence No. 11, it is recognized that the Plaintiff stated that the Plaintiff left the above captain as a pro rata. However, as a result of the first date for pleading, the Plaintiff did not indicate any content that the captain’s name, number, etc. was conferred on the deceased.

In addition, the head of the Army Headquarters's personnel management division also responded to the fact-finding of this court that the records presented by the head of the injury to the deceased do not have been confirmed. This court ordered the plaintiff to submit to the plaintiff a certificate of grant of a plane, etc. entered in the deceased as the drawing person (Article 5 of the Enforcement Rule of this Decree, Articles 3, 6, and 25 of the Decree on the Abandon Dubol-gun, which stipulate that a person who is awarded a plane captain shall give a certificate of grant of a plane captain together with the plane captain), and the plaintiff failed to submit the certificate of grant of a plane as such by the date of the closing of argument in this case. Therefore,

○ The fact-finding inquiry report by the president of the National Institute of Scientific Investigation was also adjusted to 1:1 percentage pictures against actual objects, and on the premise that the deceased suffered a total injury around the Korean War. However, there was no sufficient proof as to the validity of the foregoing premise. Moreover, as a result of the comparison by the court’s land, it does not seem that the metal substance of this case and the shape of 7.62 x 54R are necessarily consistent (see Supreme Court Decision 91Da12707, Oct. 11, 1991). Furthermore, the content of the response that the possibility that the X-ray’s pictures were used as hunting carbon is low is merely a mere expression of the conjectionional opinion.

(c) the entries in the review of the Board of Patriots and Veterans Entitlement on November 4, 2003 appear to be merely a defense (the main issue at the time of the application for registration of soldiers and policemen in 2003 was whether the metal materials of this case were caused by the death of the deceased) and the contents of the certificate of death against the deceased have no particular means to secure its authenticity, so it is difficult to give high value of evidence.

(3) In light of the above circumstances, it is difficult to view that the fact acknowledged in paragraph (1) above alone does not constitute a proof to the extent that the general public can ratification without doubt as to the fact that the deceased sustained a total action due to battle, etc., and there is no other evidence to prove it otherwise.

(4) Therefore, it is difficult to view the deceased as a person of distinguished service, and the instant disposition that stated this opinion is legitimate (see, e.g., Supreme Court Decision 201Do1448, Apr. 1, 2011). In light of the following circumstances, even if the instant disposition includes the determination corresponding to the deceased’s person’s person’s person’s person’s person’s person’s person’s person’s person’s person’s person’s person’s person’s person’s person’s person’s person’s compensation

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.