(영문) 대구지방법원 2014.12.5.선고 2013구단10927 판결

Above all, on September 12, 2013, the judgment that the defendant revoked the disposition of non-competent persons of distinguished service to the State against the plaintiff on September 12, 2013, and the judgment in Paragraph 2 above;

Reasons

1. Details of the disposition;

A. On April 25, 2011, the Plaintiff entered the Army and served in B, which was discharged from military service on January 24, 2013.

B. On January 11, 2013, while serving in the military, the Plaintiff was diagnosed as Cronlon’s disease (hereinafter “instant injury”).

C. On May 7, 2013, the Plaintiff asserted that the instant injury and disease was caused by long-term exposure to dust and malodor while in the military service, and filed an application for registration of a person of distinguished service to the State. However, on September 12, 2013, the Defendant rendered a decision on the person of distinguished service to the State or a person eligible for veteran’s compensation (hereinafter “the instant disposition”) on the ground that objective data to prove that the injury and disease in the instant case was caused or aggravated due to the performance of military service have not been verified. 【The fact that there was no dispute over the grounds for recognition, evidence Nos. 1, 6, Eul’s evidence Nos. 1, 3, and 7, and the purport of the entire pleadings as a whole.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff entered the fire extinguishing system without any disease. After entering the system, the Plaintiff classified wastes and industrial wastes without any special safety equipment and sanitary equipment at the garbage incineration site. While mainly performing the work of storing and transporting wastes, it was exposed to dust and malodor for a long time and generated the injury and disease of this case. Since there was causation between the Plaintiff and the above service branch of this case, the Plaintiff should be recognized as a person of distinguished service to the State. Even if the Plaintiff’s duty does not fall under the “duty directly related to the protection of the State, safety, or the protection of the lives and property of the people” under Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, even if the Plaintiff’s duty does not fall under the “Duty directly related to the protection of the State, security, or the protection

B. Relevant statutes

It is as shown in the attached Form.

1) The Plaintiff did not receive hospital treatment due to a unique disease in the fire extinguisher system before entering the hospital.

2) Plaintiff’s work

After entering April 25, 201, the Plaintiff received the main speciality of the repair disease of chemical equipment on July 5, 2011, and was placed as the maintenance work of the BS, but instead performed its duties after being assigned various duties of removing waste and recycling garbage in the association instead of the main speciality duties (hereinafter referred to as the “instant duties”).

○ During the period from 09:0 to 17:00, the Plaintiff separated all wastes collected within the territory of the said association, and then performed the instant work in such a way as to store the toilets remodeled, and transport the remainder of the waste to the landfill. During the period of the Plaintiff’s work, the amount of recycled wastes disposed of by the said unit reaches approximately 1,213 km monthly average.

○ The Plaintiff, while performing the instant work, was exposed to severe malodor and dust because the place of work was closed and not well ventilated, was merely put to work as a tool, and only one dust-proof straws per month from the field, after a considerable period of time elapsed, was supplied as sanitary equipment. The instant work continued until March 20, 2012, which was converted into the site of repair disease by the Plaintiff.

From March 20, 2012, the Plaintiff was frequently exposed to chemical substances such as amnitropha and biphenyls during the process of inspecting the leakage of 100 poisonouss at one time while performing his/her duties as a amnitrophy disease.

3) The Plaintiff’s military life had been subject to constant cruel acts by having assaulted several times from the elected soldier C, such as having her mared with her mared, and having her mared with her mared, during seven months from the day immediately after being placed as a patroler during the period of July 2011, and having been subject to disciplinary action by the military unit to which he/she belongs on January 16, 2012.

(iv) diagnosis and treatment;

○ The Plaintiff started from December 30, 201, more than five months after performing the instant work from around 30, 201, with frequent snow history and pain pain, and the military hospital diagnosed the Plaintiff only as “the disease with unknown standing” and provided only treatment for individual symptoms, such as snow death.

○ The Plaintiff was diagnosed as the injury and disease of this case on January 3, 2013, immediately after the symptoms were worse, and was performed by a private hospital in the form of an anti-speak and anti-speak and anti-speak, and immediately after the operation, the Plaintiff was diagnosed as the injury and disease of this case.

(v) medical views (Korean Medical Association);

○ Clon's disease does not constitute a representative immunity disease, and is known as a complex disease where both environmental elements and genetic elements are involved in the outbreak.

○ Until now, the cause of the Clon's disease is not well known, and it is deemed difficult to clarify the direct and specific cause by participating in the ideal of genes, external environmental factors, spawn guns in the country, and the loss of the control function of individual immunity reaction rather than by one specific cause.

○ The known environmental person who has been related to the Clony has been known to the present so far is about the sanitary condition of the child's time, air pollution, smoking, stress, skins, saccines, and infections such as germs, tuberculosis germs, saccines, and virus infections.There is no research or study that industrial wastes, living wastes, dust, etc. are related to the Clony, and it is difficult to prove the relationship in the future.

○ It is known that the exposure to stress continuously after the exposure to stress is repeated and aggravated. Therefore, stress is an obvious examination factor that is well known to the occurrence and aggravation of the Clonlon's disease.

○ Clon’s disease is often caused by clothes, novels, workplace transfusions, heat, etc., and growth delay, etc. is observed in the child or juvenile period. In the absence of diagnosis and treatment, continuous stress, etc. may deteriorate the disease. Until there is a direct evidence that uneasiness and depression do not relate to the occurrence of the Clon’s disease, the possibility of contributing to the outbreak of the Cronic disease may not be ruled out.

[Ground of recognition] without any dispute, Gap 2 through 8, 10, 11, 12, Eul 1 and 6, and this court

As a result of the fact-finding conducted by the Army Maintenance Team, the Korean Institute of Research, the results of the plaintiff's principal inquiry, the purport of the whole pleadings.

D. Determination

1) Judgment on the main claim

Article 4(1)6 of the Act on Persons of Distinguished Service to the State provides that a soldier, police officer, or fire-fighting officer who was wounded (including a disease) and discharged from military service or retired from military service in the course of performing duties or education and training directly related to national defense, security, or the protection of the lives and property of the people, and Article 2(1)2 of the Act on Persons of Distinguished Service to the State provides that a soldier, police officer, or fire-fighting officer who discharged from military service or retired from military service after having been wounded in the course of performing duties or education and training (including a disease) not directly related to national defense and security, security, or the protection of the lives and property of the people, and Article 2(1)2 of the Act on Persons of Distinguished Service to the State provides that "persons whose disability has been determined as a disability rating under Article 6 in the physical examination conducted by the Minister of Patriots and Veterans Service shall be defined as "the Persons of Distinguished Service to the State". In addition, Article 3(1)4 [Attachment 1]2 of the Enforcement Decree of the Act on persons of distinguished Service to military service.

However, in full view of the Plaintiff’s performance of duties as seen earlier, the developments leading up to the occurrence of the instant injury and the situation at the time of the occurrence, it is determined that the Plaintiff’s occurrence of the instant injury and disease was the main cause of stress generally given in the performance of military service, such as the instant work and the harsh treatment of senior soldiers, and thus, it cannot be deemed that the Plaintiff’s occurrence of the injury and disease was “in the course of performing duties or education and training directly related to national defense and security or the protection of people’s lives

Therefore, the part of the disposition of this case that the defendant decided that the plaintiff is not a soldier or policeman on duty as provided by the Act on Persons of Distinguished Services to the State is legitimate.

2) Determination on the conjunctive claim

"A soldier or police officer wounded in the course of education and training or performance of duty (including diseases in official duties)" referred to in Article 4 (1) 6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State refers to the injury or disease of a soldier or police officer during education and training or in the performance of duty. Therefore, in order to be different from the above provision, there is a proximate causal relation between the education and training or performance of duty and the injury or disease, and the causal relation between the injury and the injury and the injury should be proved by the claimant. However, the causal relation does not necessarily have to be proved by medical or natural science, but it is presumed that there is a proximate causal relation between the education and training or performance of duty and the injury or disease in consideration of all the circumstances, and it should be determined by the criteria for determining whether a soldier’s injury and disease constitutes a soldier’s compensation person’s injury and disease as defined in Article 26(1)2 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State.

C. According to the above facts, in a poor environment where the sanitation equipment and ventilation facilities have not been properly equipped for about eight months after entering the military, the Plaintiff appears to have been excessively exposed to dust, malodor, spawn, etc. while carrying out the instant duties. Among them, the disease in this case is deemed to have been suffering from heavy stress while getting affected by the harsh act of an appointed soldier. As long as the disease in this case can be caused by such environmental factors as above, and severe stress can be caused by the occurrence and aggravation of the disease in this case, it is reasonable to determine that the disease in this case was caused by the Plaintiff’s performance of official duties, or that the progress of the disease in this case has been aggravated above the natural progress.

Therefore, as a soldier under Article 2 (1) of the Patriots and Veterans Compensation Act, the Plaintiff is a soldier, who was wounded in the course of performing duties or education and training not directly related to the national defense and security, or the protection of the lives and property of the people. Ultimately, the part that determined that the instant disposition does not constitute a military person and police officer, on the ground that there is no proximate causal relation between the instant wound and the Plaintiff’s performance of duties

3. Conclusion

The plaintiff's primary claim is dismissed for lack of reasonable grounds, and the conjunctive claim is accepted for lack of reasonable grounds.