2016Nu13203 Demanding revocation of the disposition of refusal to register persons of distinguished services to the State

A

Law Firm Governing Law, Counsel for the defendant-appellant

Attorney Ha-hee

The head of the Chungcheongnam-gu Veterans Branch Office

Daejeon District Court Decision 2016Gudan100517 Decided October 27, 2016

March 9, 2017

March 30, 2017

1. The part concerning the conjunctive claim in the judgment of the court of first instance is revoked. 2. The plaintiff's conjunctive claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

In the first place, the defendant's rejection disposition against the plaintiff on April 2, 2016 is revoked. In the second place, the defendant's rejection disposition against the plaintiff on April 2, 2016 against the plaintiff is revoked.1)

2. Purport of appeal

The decision of the court of first instance (the plaintiff, around April 2, 2016, sought revocation of the disposition of refusal to register the person who rendered distinguished services to the State against the plaintiff on April 2, 2016, and the disposition of refusal to register the person who rendered distinguished services to the State against the plaintiff on the same day, and the court of first instance dismissed the plaintiff's primary claim and accepted the conjunctive claim. Accordingly, the defendant appealed only to the plaintiff's conjunctive claim, and the scope of the court of first instance is

1. Details of the disposition;

The court's explanation on this part is the same as the statement of reasons in Paragraph 1 of Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the court's explanation on this part is the same as the statement of reasons in Paragraph 2 of Article 8 of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, in addition to "the disposition in this case" as "F apartment", "the third side 13 of the judgment" as "the third side 15-16 of the disposition in this case" (hereinafter "the disposition in this case").

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

As the deceased’s death is due to education and training or performance of duties, the deceased constitutes a person eligible for veteran’s compensation pursuant to Article 2(1)1 of the former Act on Support for Persons Eligible for Veteran’s Compensation (amended by Act No. 13608, Dec. 22, 2015; hereinafter “former Act”). In determining above, Article 2(1)1 of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation”), [Attachment 1] No. 15 [Attachment 1] No. 15 [Attachment 1] of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “Enforcement Decree of the Act on Persons Eligible for Veteran’s Compensation”), it shall not be considered in this case as it goes beyond the bounds of delegation of the mother’s Act, and thus becomes invalid. In other premise, the Defendant’s disposition of this case is unlawful.

(b) Related statutes;

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

C. Determination

1) Whether the provision of this case is invalid

In light of the fact that the legal system of the State itself forms a unification body, conflicts between the upper and lower rules should be excluded to the maximum extent possible, and that there is a need to avoid the harm caused by legal confusion and instability, etc. that may arise when a norm is declared null and void, and by the legal gap until a new norm is enacted, if it is possible to interpret the meaning of the lower statutes as consistent with the upper and lower statutes by comprehensively taking into account the contents, legislative intent, and history of the relevant statutes in a case where the provisions of the lower statutes are unclear, and where it is possible to interpret that the meaning of the lower statutes is in conflict with the upper and lower statutes, the lower statutes should not be readily declared null and void on the ground that they are in violation of the upper and lower statutes (see Supreme Court Decision 2014Du

In light of the aforementioned legal principles on the interpretation of subordinate statutes, the contents, structure, and legislative intent of the pertinent regulations and relevant regulations, the instant provision is deemed null and void as it violates the superior laws and regulations, taking into account the following circumstances acknowledged by adding the aforementioned facts and the purport of the entire arguments on evidence.

A) Of the persons who have made a sacrifice and contribution to the State for the State, those who need special honorable treatment from the State as persons of distinguished service to the State, and those who need compensation as persons who need to receive honorable treatment and support as persons of distinguished service to the State, was newly established in addition to the previous system of persons of distinguished service to the State in order to reform the veterans compensation system by classifying them as persons of distinguished service to the State. Accordingly, the Act on the Honorable Treatment and Support of Persons of distinguished service to the State, which was amended on September 15, 201 and enforced on July 1, 2012, should add "it is directly related to the protection and security of the State or the protection of the lives and property of the people" to "the Act on the Support for Persons of Distinguished Service to the State, which was enacted on September 15, 201 and enforced on July 1, 2012, has not been directly related to the performance of their duties or education and training requirements for the relevant persons of distinguished service."

B) Article 2(1)1 of the former Patriots and Veterans Compensation Act provides that “A soldier, police officer, or fire-fighting officer who died in the line of duty or during education and training not directly related to national defense or security, or the protection of the lives and property of the people (including a person who died in a disease)” refers to a soldier, police, or fire-fighting officer’s death in the line of duty or during education and training. Therefore, for the death stipulated in the above provision, there should be a proximate causal relationship between the soldier’s death in the line of duty or during his/her duty and the death in the line of duty or during his/her education and training, and the same applies to the death in the line of duty or during his/her death in the line of duty or during his/her education and training. Therefore, even if a soldier, etc. died in the line of duty while on duty, whether a proximate causal relationship exists between the soldier’s death in the line of duty or during his/her education and training should be determined depending on whether there is a proximate causal relationship between the soldier’s death in the line of duty or death.

C) Article 2(1) of the former Patriots and Veterans Compensation Act provides for a person, police officer, police officer, etc. of the same Act. Article 2(2) provides for the detailed criteria and scope of the Act. Accordingly, Article 2(1)1 and [Attachment 1] of the Enforcement Decree of the Patriots and Veterans Compensation Act lists cases falling under subparagraphs 1 through 15 of Article 2(1) of the Enforcement Decree of the Act on Veterans and Veterans Compensation and Compensation. In particular, the provision of this case provides for “a person who is a medical service officer and is medically recognized to have died due to self-injury in the state where free will is excluded from his/her duties or education and training due to the direct cause of such act.”

D) However, among the provisions of this case, ‘the exclusion of ‘the state in which free will is excluded' means ‘the exclusion of ‘the exclusion of ‘the whole' without being received' in advance, and it is also possible to exclude ‘the state in which ‘the free will is excluded' as well as ‘the state in which ‘the considerable part of the free will' is included not only in the state in which ‘the free will is completely excluded' but also in the state in which ‘the considerable part of the free will is restricted.'

E) In addition, in relation to ‘medically recognized person' among the provisions of this case, it is difficult to view that the term ‘self-injury' as it is directly caused by 'oracopher, bomb, or cruel acts, etc. as it is, and thus, it is difficult to view that the death was clearly proven by self-injury in the state where free will is excluded from the free will. From a normative perspective, in full view of all the circumstances such as the result of appraisal, there is proof that there is a proximate causal relation between performance of duties or education and training, and death caused by self-injury (whether or not it is medically recognized is also reserved in the judgment of the judge according to the principle of free trial). Accordingly, the term ‘medically recognized person' among the provisions of this case can be interpreted sufficiently within the scope of proximate causal relation as provided by the higher law.

2) Whether the deceased constitutes a person eligible for veteran's compensation (if the deceased died in a disaster)

In the event that the death of a person obliged to serve mandatory service commits suicide, it shall be proved by the party asserting that the death was committed while the free will was excluded as a direct cause of the causal relationship between the performance of duties and the suicide, namely, the conduct of duty or education and training. In light of the following circumstances, it is not sufficient to recognize that the evidence submitted by the plaintiff was directly caused by the death of the deceased while serving in the E police station and the act of infringement on personality, etc. received from the appointed substitute members, and there is no other evidence to prove otherwise.

A) The Deceased, as C, was of the nature that he was able to play with the head of class gymnasium, the head of the gymnasium, and the head of the gymnasium with many friendships. The Deceased was on the leave of absence in the first grade of the University, and was on September 13, 2007, after entering the University, he was on the part of the Army and was on the part of the Army, and was on the part of the members. After entering the University, he maintained a smooth relationship with the gymnas and fymnas, and took advantage of the gymnas and the gymnasium.

B) Around 16:00 on November 2, 200, the Deceased was placed as the E police station of the Gyeonggi Provincial Police Agency on November 2, 2007 after completing a new training. On November 2, 2007, the Deceased: (a) around 19:53, Nov. 13:59, Nov. 4, 14:5, and around 200: (b) around 2007, the Deceased sent a telephone to four occasions; (c) on his/her family members and conversations with his/her family members; (d) on November 3, 2007 and Nov. 4, 2007; (d) on November 5, 2007, it was difficult for the Deceased to receive a simple physical movement and parents’ meeting; and (e) on November 16, 2007, it was difficult for the Deceased to receive a series of objective transportation records, etc. from a police station of the 15th day after being assigned to the EMM.

C) During the life of the deceased, L, like the deceased, was subject to a disciplinary action of 15 days in Chang-gu, on the ground that L had the deceased play a serious burden on the deceased, on the ground that he did not put the cancer, such as a call sign, a warless music, and a model identification method, and had the deceased go out only a day. For this reason, K at the ordinary times, on the ground that he/she caused a serious burden to the deceased on the deceased, he/she was a tension at the time when he/she was broken off, and that he/she took a serious burden on the deceased, on the ground that he/she caused a serious burden on the deceased, such as having the deceased put a bed once and put a bed on the part of the deceased at his/her own time due to difficult cocons, and caused a serious burden on the deceased. However, in light of these grounds for disciplinary action, it is difficult to readily conclude that the content and degree of the character of the appointed person’s suicide against the deceased and that it was excessive to the extent that his/her free will was excluded or restricted.

D) Even if the Deceased was placed under a mental and physical stress situation because he was unable to adapt properly to the new environment, such as internal affairs, after his placement, the Deceased did not make efforts to actively resolve grievances, such as consultation procedures with senior personnel management officers of the police station or senior medical institutions belonging to the competent police station or treatment of exclusive medical institutions, in order to solve this problem, and made a extreme choice of suicide at 4 days after his placement. Furthermore, even if the Deceased was in such a state of mental stress and tension, it is difficult to evaluate the Deceased as being subject to “an act of piracy, advice, or cruel, etc. related to the performance of duties or education and training.”

3. Conclusion

Therefore, the plaintiff's conjunctive claim of this case is dismissed as it is without merit. The plaintiff's conjunctive claim of this case is revoked in the first instance court which accepted the defendant's appeal and concluded otherwise, and the plaintiff's conjunctive claim is dismissed. It is so decided as per Disposition.

Allowable judges of the presiding judge

Judges Oo-hee

Judges

1) In the purport of the complaint, the plaintiff rejected the registration of a person who rendered distinguished services to the State and rejected the registration of a person eligible for veteran's compensation on April 2, 2016 by the defendant.

The plaintiff filed the lawsuit in this case in the simple form of the claim, stating "......... the person who rendered distinguished services to the State"

It is simultaneously recognized to request the revocation of a non-specific decision made by a person who has rendered distinguished services to the State and a non-specific decision made by a person eligible for veteran.

In principle, a claim for the cancellation of such two dispositions shall be deemed to be in an incompatible relationship with the person who rendered distinguished services to the State.

Inasmuch as a claim for a lawsuit is in the primary and preliminary relationship with which the claim is filed (see, e.g., Supreme Court Decision 2015Du48570, Aug. 17, 2016).

[See] We examine the claim of this case as the primary and fluorial relationship.