2016Guhap84481. Revocation of revocation of revocation of recognition as a deceased person

Gangwon ○

The Minister of Health and Welfare

May 18, 2017

June 15, 2017

1. On November 1, 2016, the Defendant revoked the disposition rejecting recognition of a doctor to the Plaintiff.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. On July 8, 2016, the Plaintiff’s husband’s husband’s deceased ○○○ (the deceased’s life on February 18, 1961, hereinafter referred to as “the deceased”): around 40: around 40, 2016, ○ University was demoted to seek Kim ○, who was on the river while she she she was in the vicinity of the Choyang Geng-gu’s Yeong-gu, Yan-gun, Gangwon-do (hereinafter referred to as “the instant accident”). However, at around 14, 201, she was able to seek a ○○, who was on the river, while she she was in the vicinity of the Choyang-gu’s Yeng-gu, Y

B. On August 2, 2016, the Plaintiff filed an application with the Defendant for recognition of a deceased person on the ground that the deceased’s above act satisfies the requirements of the deceased’s deceased and wounded noble person under the Act on Honorable Treatment of Persons, etc. of Distinguished Service for the Death and Injury (hereinafter “the Act on Honorable Treatment of Persons of Distinguished Service for the Death and Injury”). However, on November 1, 2016, the Defendant rejected the recognition of a deceased person on the ground that “the Plaintiff was unable to meet the requirements for recognition of a deceased person (the Plaintiff’s negligence, which was not related to structural activities, caused the death)” (hereinafter “the instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1, and pleadings

The purport of the whole

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Deceased appears to have taken the instant disposition on the ground that Kim○-○ was under the influence of drinking water, and the deceased was under the influence of her life jackets from the fluoral fluor, and was under the influence of her fluoral fluor, and was under the influence of her fluor at the fluoral fluor’s fluor’s fluorial fluor’s fluorial fluor’s fluor’s fluor’s fluorial fluor’s fluor’s fluor’s fluor’s fluorial fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s f.

(b) Related statutes;

As shown in the attached Form.

(c) Facts of recognition;

1 ) 이 사건 사고 발생 당시 현장에 있었던 수상안전요원 김●●이 사고 당일 경찰 에 출석하여 진술한 내용은 다음과 같다 . 김●●은 이 법원에 증인으로 출석하여 두 번째로 들어간 사람은 자신의 만류에도 불구하고 구명조끼를 입고 물에 들어갔고 , 첫 번째 사람은 얼굴이 벌겋고 해서 술을 마신 것 같은 느낌이 들었는데 , 두 번째 사람은 술을 마셨는지 안 마셨는지 잘 모르겠으나 마신 것 같지는 않았다고 증언하였다 .

A person shall be appointed.

2) The content of the written statement prepared on March 16, 2017 by Ha○○○ at the time of the instant accident is as follows. He appeared as a witness at this court and testified in the same content as the written statement on behalf of the deceased. He testified that Ha○○ was able to seek the deceased from the close distance between the air and Kim○, where the deceased did not drink at all, while the deceased was seated as a witness at a restaurant, and the deceased was sprinked with life jackets and her body, and the deceased was able to seek from the deceased at the same time.

A person shall be appointed.

3 ) 이 사건 사고 발생 당시 현장에 있었던 권○○은 사고 당일 경찰에 출석하여 '12 : 00경 도착하여 식사를 하면서 소주를 한잔씩 먹고 일부는 계곡에서 놀고 , 저와 김 ○○을 비롯한 7명은 고기를 잡으러 갔다 ' 고 진술하였으나 , 이 법원에 ' 일행 대부분이 음주를 하였으나 , 곧바로 이동이 예정된 팀의 운전을 담당해야 했던 망인은 음주를 하 지 않았다 ' 는 내용의 진술서를 제출하였고 , 일행 중 이○○ , 김□□ , 남○○ , 김■■ 역 시 망인은 술을 마시지 않았다는 내용의 진술서를 제출하였다 .

4) On the day of the instant accident, the water from the Choyang River was cut out and water was very rapid. The Deceased was present on the day of the instant accident on the day of the instant accident, and there was no number of people seeing that he was present on the day of the instant accident.

[Ground of recognition] Unsatisfy, Gap evidence 4 to 29, Eul evidence 1 and 2 (each number)

(B) Each statement and image of this case, the witness Kim Il-young, the witness Kim Il-young's testimony and the purport of the entire argument

D. Determination

1) According to Article 2 of the Act on the Honorable Persons of Distinguished Service for the Death and Injury of a deceased and wounded noble person, an act other than the duties is required to constitute a direct and affirmative rescue act to rescue another person’s life, body, or property in imminent danger and injury at risk, and should have died.

In order to commemorate the noble intent of a deceased or wounded noble person and his/her bereaved family members or his/her family members by properly treating and supporting the sacrifice and degree of damage (Article 1), and contribute to the realization of social justice (Article 1), the issue of whether an act constitutes the above rescue activity shall be included not only in the legislative intent of the Act on the Persons of Distinguished and wounded for Public Good and in the contents of honorable treatment, such as awarding honor to a deceased or wounded noble person or his/her family members, commemorative projects, and payment of compensation, but also in the case of a person’s subjective relief intent, in addition to the offender’s subjective relief intent, the offender’s act should be included not only in the situation at the time of the act’s occurrence and degree of danger that the actor should bear, the specific form and appropriateness of the relief act, the degree of urgency and possibility of harm caused by another person’s self-help, but also in the case of a person’s act that requires safe and smooth and safe and safe performance or 4th degree of harm caused by an objective disaster situation.

On the other hand, Article 3(2) of the Act on the Honorable Treatment of Persons who Died or Lost for Public Good does not apply to a person who falls under any of the following subparagraphs, notwithstanding Article 3(1). Article 3(1) of the Act on the Honorable Treatment of Persons who Died or Lost for Public Good provides that "A person who was killed or wounded while making rescue efforts for a person who is in danger or harm due to his/her own act," and "a person who was killed or wounded due to his/her own gross negligence, which is not related

In light of the legislative purpose of the Act on the Honorable Persons of Distinguished Service for the Death and Injury, the above provision provides that the actual quality of the pertinent rescue act is insufficient to serve as a social model. In the case of Article 3(2)2, the risk of causing a different from the previous examination situation due to the gross negligence of the rescue actor under the balance between Article 3(2)1 and Article 3(2)2, and thereby, it should be deemed that the person who performed the rescue act was killed or wounded.

2) Based on the facts of the above recognition and the statements of Gap evidence 13 to 25, 30 and 31

In full view of the following circumstances known, the deceased's life or body at a bathing beach, river, valley, or any other place, where he/she died while enjoying physical play, etc., meets the requirements for rescue activities under Article 3 (1) 6 of the Act on the Persons Wounded and wounded for Public Good, and does not meet the requirements for exclusion under Article 3 (2) 2 of the same Act. Thus, the disposition of this case made on a different premise is unlawful, and the plaintiff's assertion is with merit.

① Although there are some differences between the relevant persons’ statements about the specific situation and circumstances up to the occurrence of the instant accident, it is evident that the deceased was up to his/her sub-water under the influence of seeking Kim○, it does not affect the establishment of rescue activities, even if the deceased died without reaching the full rescue activities.

1. ② The Defendant determined that: (a) based on the statement made by the police, the deceased was against the river without objectively grasping the present situation at the time, on the day of the instant accident; (b) however, in light of the following: (a) the testimony or statement made by the Kim Il-young’s testimony or the right ○○○, as seen earlier; and (c) the Plaintiff divided conversations on December 24, 2016, “I would like to come back with the deceased for the last time; and (b) the son I would like to come back for the first time; and (c) whether I would have been aware that I would have been aware of how I would drink later; and (d) in light of the fact that I would have been aware of whether I would have been drinking, I would like to make a statement on whether I would have been drinking.

③ On the day of the instant accident, the Deceased appeared to have been present at the Dongdaemun-gu meeting on the day of the instant accident, and most of the members were in a state of drinking without shooting. In addition, the Plaintiff and relevant persons stated that they did not drink on the day of the instant accident because the Deceased was scheduled to drive a line on the day of the instant accident and return to Daejeon. Furthermore, even if the Deceased were to drink a little amount of alcohol, in light of the purport of the Act on the Honorable Persons of Distinguished Services and Injury to the Deceased and Injury of the Deceased, the Deceased could not be evaluated as a gross negligence solely on the basis of the fact of drinking, unless the Deceased was unable to take a normal body or did not reach the degree of having a different ability. Rather, there is no evidence that the Deceased was in a state of drinking as such at the time of the instant accident, and rather, it appears that the Deceased was sufficiently aware that he was in a dangerous condition by wearing the life jackets, etc., and that he was sufficiently aware that he was in a situation of the risk of ○○○.

④ The Defendant asserts that the situation at the time of the instant accident was very dangerous and that it was gross negligence without objectively grasping the deceased’s situation, and that it was gross negligence. However, the Defendant assumes that the requirement for recognition of the deceased and wounded noble person, “to rescue another person’s life, body, or property at risk of his/her own life or body,” in itself, was a very dangerous situation to the extent that the ordinary person would have caused danger to his/her own life or body, and thus, the establishment of rescue activities under the Act itself may be denied. Although the situation at the time of the instant accident was consistent with the situation at the time of his/her testimony, considering the situation at the time of his/her testimony, it seems that the attempt to rescue operation was insignificant, or that it was absolutely impossible to rescue the situation at the site of the water safety personnel.

Since the 1942-years have received 4 hours' education, the structure by them could not be expected, and there is no more appropriate structural method.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judgment of the presiding judge;

Judges Kim Tae-won

Maximum Judge

Related Acts and subordinate statutes

/Act on Honorable Treatment of and Support for Persons Wounded or wounded for Public Good

Article 1 (Purpose)

The purpose of this Act is to commemorate sublime the noble purport of deceased and wounded noble persons and contribute to the realization of social justice by providing proper treatment and support for persons killed or wounded while making rescue efforts for the life, body, or property of another person in peril or in danger with no duty to do so and their bereaved family members, surviving or dependent, according to the degree of their sacrifice and damage and other relevant facts.

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "rescue efforts" means the life or bodily harm of another person in imminent peril or injury at the risk of his/her own risk;

The term "direct action" means a direct action to seek a body or property.

2. The term "dead noble person" means a deceased noble person who was killed ( wounded noble person due to his/her injury) while making rescue efforts outside of his/her duties;

A person recognized by the Minister of Health and Welfare as a deceased person pursuant to this Act shall be included in the case of a deceased person.

4. The term "person killed or wounded for a reason" means a deceased or wounded noble person or a wounded noble person;

5. The term "bereaved family members of a medical doctor" means the spouse (including a person in a de facto marital relationship; hereinafter the same shall apply) or a child of a medical doctor;

Parents, grandparents, brothers, or sisters.

Article 3 (Scope of Application)

(1) This Act shall apply to any of the following cases:

6. Life of another person in peril or injury while playing water play, etc. at a bathing beach, river, valley, or any other place;

When a person is killed or wounded while making rescue efforts for his/her body;

(2) Notwithstanding paragraph (1), this Act shall not apply to any of the following persons:

1. A person who has been killed or wounded while making rescue efforts for another person put in danger by his/her own act;

2. Death as a direct cause by his/her gross negligence, which is not related to rescue activities or other activities closely related thereto.

A person who has been injured or injured;

Article 4 (Committee for Review of Persons Wounded or wounded for Public Good)

(1) In order to review and resolve the following matters, a committee for examination of deceased and wounded noble persons (hereinafter referred to as the "committee") shall be established under the Ministry of Health and Welfare:

1. Matters concerning the recognition of deceased and wounded noble persons and determination of the degree of injury of wounded noble persons under Article 5;

(2) The Committee shall be comprised of not more than 15 members, including one chairperson and one vice chairperson, and the Minister of Health and Welfare shall appoint or commission the chairperson, vice chairperson and other members from among persons with abundant knowledge and experience in respect of honorable treatment and support under this Act.

(3) The term of office of the members commissioned pursuant to paragraph (2) shall be two years and they may be reappointed.

(5) Matters necessary for the composition and operation of the Committee shall be prescribed by Presidential Decree.

Article 5 (Application for Approval, etc.)

(1) A person who intends to be governed by this Act shall apply for recognition as a deceased or wounded noble person to a Mayor (including an administrative city under the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City; hereinafter the same shall apply)/Gun/Gu (limited to the head of an autonomous Gu; hereinafter the same shall apply) having jurisdiction over his/her domicile or rescue activity, as prescribed by Presidential Decree.

(2) Upon receipt of an application for recognition under paragraph (1), the head of a Si/Gun/Gu shall, without delay, request the Minister of Health and Welfare to determine whether to recognize a deceased or wounded noble person through the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Do Governor, or a Special Self-Governing Province Governor (hereinafter referred to as "Mayor/Do Governor").

(4) Upon receipt of a request under paragraphs (2) and (3), the Minister of Health and Welfare shall determine whether to recognize a deceased or wounded noble person for a period not exceeding 60 days, subject to examination and resolution by the Committee: Provided, That the period may be extended by up to 30 days in extenuating circumstances, such as verifying whether a person has performed a rescue.

Article 6-2 (Filing Objections)

(1) A person who is dissatisfied with the decision of the Minister of Health and Welfare concerning matters referred to in Article 4 (1) 1 or 2 may file an objection with the Minister of Health and Welfare within 30 days from the date he/she is notified of the decision, as prescribed by Ordinance of the Ministry of Health and Welfare.

(2) The Minister of Health and Welfare shall make a decision on an objection under paragraph (1) within 60 days after deliberation and resolution by the Committee, and notify the objector of the result thereof: Provided, That where it is impracticable to make a decision within such period due to extenuating circumstances, the period may be extended by up to 30 days.

(3) A person who has filed an objection under paragraph (1) may seek an administrative appeal under the Administrative Appeals Act, regardless of such objection.

/ Enforcement Decree of the Act on Honorable Treatment and Support of Persons Wounded or wounded

Article 10 (Notification, etc. of Results of Recognition of Persons Wounded or Dead for Public Good)

(1) When the Minister of Health and Welfare determines whether to recognize a deceased or wounded noble person pursuant to Article 5 (4) of the Act, he/she shall notify the head of a Si/Gun/Gu who has received an application pursuant to Article 9 (1) and the Mayor/Do Governor under Article 9 (3) of the Act. In such cases, upon receipt of notification from the Mayor/Do Governor having jurisdiction over the place of rescue activities and the head of a Si/Gun/Gu, he/she shall notify the notified head of a Si/Gun/Gu having jurisdiction over the domicile of the applicant for recognition of a deceased or wounded noble person under Article 9 (1) (hereinafter referred to as "applicant for recognition").

(2) The head of a Si/Gun/Gu having jurisdiction over the domicile notified under paragraph (1) shall, without delay, notify the applicant for recognition and the person subject to the issuance of certificates of deceased or wounded noble persons, etc. under paragraph (3).