2010Na2697 Compensation (as referred to in this paragraph)

Appellant Saryary appellant

1. Maximum ○○ (OO00 - 00000)

2. Maumo (OO00 - 00000)

The plaintiffs' address Busan ○○○-gu ○1 Dong ○○ - ○○

[Judgment of the court below]

Attorney Doh-man, Counsel for the plaintiff-appellant

Appellants and Appellants

Gyeongbuk-do

For the Representative of the Do Governor Kim Government

Attorney Nam-jin et al., Counsel for the defendant

Seoul Central District Court Decision 2008Gahap114705 Decided November 26, 2009

April 30, 2010

September 10, 2010

1. Revocation of a judgment of the first instance;

2. All of the plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

Defendant: 366, 682, 386 won to the largest ○○○; 363, 682, 386 won to the Plaintiff Jeong-○; and 1st, respectively.

from December 4, 2007 to the date of pronouncement of the first instance judgment, 5% per annum, and the date of full payment from the following day to the date of pronouncement of the first instance judgment;

For up to twenty percent per annum, each share of 20 percent shall be paid.

The part against the plaintiffs in the judgment of the court of first instance shall be revoked. The defendant shall each revoke to the plaintiffs 153, 189, 717

The date from December 4, 2007 to the date of the first instance judgment shall be 5% per annum for the Won and each of them, and the following day:

It shall pay 20% interest per annum from the date of full payment to the date of full payment.

The part against the defendant among the judgment of the first instance court is revoked. The plaintiffs' claims are dismissed in entirety.

1. Judgment on the grounds of the plaintiffs' claims

(a) Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in the statements and videos described in Gap evidence 1, 3, 4-1, 2, 3, 6-1 through 4, 14-1 through 15, 15-1 through 6, 15-1 through 14, 5-1 through 14, 5-2, 6-2, 9, and 5-2.

(1) Relationship between Parties

(A) The plaintiffs are the parents of the deceased (hereinafter referred to as "the deceased"). (b) The defendant is the management agency of the 626 local road (one day-time road in Ulleung-gun, Ulleung-gun, hereinafter referred to as "road of this case"). (2) The deceased's death guard (A) on September 1, 2006, was appointed as police officer on September 1, 2006, and was on duty at the ○ Police Station ○ Police Station ○○ Police Station ○○ Police Station.

(B) On December 3, 2007, the Deceased received a report that the instant accident occurred in front of the ○○○○○○-gun, a village sign board (hereinafter “the point where the instant accident occurred”) among the roads of this case while serving as a mixed waiting at the said police box around 20:0, and sent the same to the point where the instant accident occurred to regulate traffic.

( 다 ) 망인은 같은 날 18 : 30경 이 사건 사고 지점에 도착하였는데, 응급복구를 하고 있던 ○○군 ○면장 ( O面長 ) 정◆◆으로부터 반대방향에서 사고 지점으로 오는 차량에 대한 교통정리를 해달라는 부탁을 받고, 순찰차를 운전하여 이면 방면에서 ○○읍 방면으로 약 30m가량 이동하던 중, 같은 날 18 : 40경 순찰차 진행방향 왼쪽 산 ( 높이 약 150m ) 에서 떨어진 낙석 ( 소형차량 크기 정도 ) 이 순찰차 지붕을 덮쳐 현장에서 사망하였 ( 3 ) 이 사건 도로 및 사고 지점의 모습 등 ( 가 ) 이 사건 도로는 울릉도의 해안선을 따라 설치된 울릉군 일주도로로서, 1985 .

(2) On November 8, 195, 195, the area of the instant 4.2mm away from the point of the instant accident, which was located in the 0th of the 2nd of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 1st of the 5th of the 5th of the 1st of the 5th of the 5th of the 1st of the 5th of the 5th of the 1st of the 5th of the 1st of the 5th of the 1st of the 5th of the 1st of the 5th of the 1st of the 5th of the 1st of the 5th of the 1st of the 5th of the 2nd of the 5th of the 2nd of the 5th of the 2nd of the 2nd of the 1st of the disaster.

(h) On August 2005, at the ○○○○○-gun, a large-scale landslide occurred (which seems to have been installed in this accident) in around 000 on the surface of ○○○-gun, ○○○○-gun, and thereafter, there were a large number of fallen rocks on a small scale. On the surface of ○○○-gun, a small scale of falling rocks was cut off and a small winded accident occurred frequently.

B. Occurrence of liability for damages

With respect to the defects in the construction and management of the road in this case, there was a need for the installation of a cryptop tunnel, etc. due to the dangers of falling rocks existing on the road in this case after the construction of the road in this case.

Thus, the defendant, who is the managing authority of the road of this case, can recognize the defects in the management of the road of this case in accordance with Article 5 (1) of the State Compensation Act, and since the deceased died due to the defects in the management of the road of this case, the defendant is liable to compensate the plaintiffs, who are the deceased's heir, for the damages

2. Judgment on the Defendant’s assertion of exemption under the proviso of Article 2(1) of the State Compensation Act

A. The parties' assertion

The defendant asserts that the accident of this case constitutes a case where the deceased, who is a police official, died on duty in relation to combat, training, etc., and that the plaintiffs, who are their bereaved family members, receive compensation such as survivor pension, etc. according to the "Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State Compensation Act", the plaintiffs cannot claim damages against the defendant pursuant to the proviso of Article 5 (1

As to this, the Plaintiffs’ amendment of the proviso of Article 2(1) of the State Compensation Act on July 13, 2005 to restrict claims for damages against the State or local governments only when they died or died in the line of duty from among the duties related to combat and training. As such, the Plaintiffs claim damages against the Defendant in the case of death on duty due to general duties, other than combat and training, such as this case.

B. Article 29(2) of the Constitution and relevant provisions of the Act (1) : A soldier, civilian military employee, police officer, or any other person prescribed by the Act shall not claim compensation for any damage incurred by a tort committed by a public official in the course of performing his/her duties, other than compensation prescribed by the Act. (2) The proviso to Article 2(1) of the former State Compensation Act (amended by Act No. 7584, Jul. 13, 2005): Provided, That where a soldier, civilian military employee, police officer, or homeland reserve member is involved in combat, training, or other performance of duties or for the purpose of maintaining national defense or public security, or where he/she or his/her bereaved family member was killed in action, on duty, on duty, on duty, on duty, or on duty, on duty, on duty and on duty, on duty and on duty, on duty and on duty and on duty, he/she or his/her bereaved family member may not claim compensation for such damage as disaster compensation, survivor pension, pension, etc. under this Act or other provisions of the Civil Act.

Although some of the above provisions have been amended, the basic contents of the above provisions are the same.

C. The Supreme Court's decision on the proviso of Article 2 (1) of the former State Compensation Act and the Constitutional Court's decision on the constitutionality of Article 2 (1) of the State Compensation Act (1): Article 2 (1) proviso of the State Compensation Act provides that where a soldier, civilian employee, police officer, or homeland reserve forces member was killed in action, died on duty, or died on duty in connection with combat, training, or other performance of duties, and where he was killed in action, died on duty, or was injured on duty in a facility, automobile, warship, aircraft, or other means of transport used for the purpose of national defense or maintenance of public order, it shall be deemed that the scope of delegation to the Supreme Court's decision under Article 29 (2) of the Constitution shall be extended to the extent that a soldier, civilian employee, police officer, or other person determined by the State Compensation Act suffers a loss or injury in connection with the performance of duties, such as combat, training, etc. under Article 29 (2) of the Constitution. Thus, Article 29 (2) proviso of the State Compensation Act shall not be limited to the extent of delegation to the Supreme Court.

In this regard, the Supreme Court affirmed the application of the proviso of Article 2 (1) of the State Compensation Act to the case of combat, training, or performance of duties corresponding thereto, as well as the general performance of duties (see Supreme Court Decisions 96Da42420, Feb. 15, 2001; 80Da1600, Dec. 23, 1980): (2) The Constitutional Court's decision of Article 2 (1) of the State Compensation Act is based directly on Article 29 (2) of the Constitution that limits the right to claim State compensation, which is guaranteed under Article 29 (1) of the Constitution, in nature, by directly applying Article 29 (2) of the Constitution that limits the right to claim State compensation, which is guaranteed under Article 29 (1) of the State Compensation Act, and thus, it does not violate the Constitution (Supreme Court Decision 95Hun-Ba

(d) Amendment of the State Compensation Act; and

According to the statement No. 5-1 and No. 2 of Gap evidence 5-2, the first bill proposed at the time of the amendment of the above provision, as of 2005, is "..... It is necessary to limit damages against the State or local governments only in the case of duties related to combat and training, and to allow compensation for damages in the case of death or injury on duty due to general duties, other than combat and training, but the National Assembly Legislation and Judiciary Committee has to treat military personnel and civilian employees, etc., who are treated differently from police officers as being treated differently in the course of combat and training, and thus, it is pointed out that there is a problem that equality problems may arise. Accordingly, it can be acknowledged that the amendment of the current provision is made.

E. In full view of the statements in the evidence Nos. 18-1, 2, 3, and 4 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State and the purport of the entire arguments in the fact-finding with respect to the Minister of Busan Regional Veterans Affairs, the Plaintiff ○○ received veterans' benefits from April 2008 pursuant to Article 9 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State. The completion date of the payment of the above benefits is the month of the deceased's parents' death. The above veterans' contribution amount is KRW 938,00 per month as of 208 and KRW 985,00 per month as of 200 (the parent's compensation amount is KRW 88,000 + the amount of old allowances + KRW 97,000 per month as of 20 per month as of 209.

In this case, the defendant asserts that the amount of veterans' benefits received by the plaintiffs pursuant to the "Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State" and the total amount of veterans' benefits to be received in the future are deducted from 218,659,586 won.

F. As seen earlier, the Supreme Court and the Constitutional Court have interpreted the provision of the former State Compensation Act as the provision of Article 29(2) of the Constitution, which is substantially identical to that of Article 29(2) of the Constitution, as seen earlier.

In addition, the proviso of the Act provides that "in the event of combat, training, etc., the performance of duties" has been amended by the same expression as that of Article 29 (2) of the Constitution, so the actual contents of the Act seems to be the same despite the amendment. However, it is understood that the provision of the proviso was amended by "in combat, training, or any other", "in combat, training, etc.," and there is no special circumstance to see different in this case. In addition, the purpose of the proviso of Article 2 (1) of the current State Compensation Act is to limit the liability of the State or local governments for damages to the general public as well as to combat, training, or performance of duties corresponding to the provision of the Act before the amendment.

(2) In addition, we examine whether the above proviso of the State Compensation Act excessively infringes on the fundamental rights of the people.

The above proviso limits the liability of the State or local governments for compensation only in cases where the Military Pension Act or the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State can be paid with compensation under special Acts such as "Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State". However, as seen earlier, the above veterans' benefits are paid with the "Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State". The above veterans' benefits not only have the character of social security but also have the character of social security, but also have the honorable treatment of contributions and sacrifices for the State, and it differs from the purport or purpose of the compensation system that aims to compensate for losses caused by tort, but it cannot be denied that the above veterans' benefits perform functions similar

The amount of compensation paid at the time of the establishment of the provision of paragraph (2) was lower than the amount of compensation paid at the time of the establishment, and therefore, in the case falling under the above proviso, the amount of compensation less than the amount of the State compensation is made, and the problems of infringement of fundamental rights have been pointed out. However, as a result of the continuous increase of veterans' benefits by the increase of national finance and the improvement of the level of people's living until now, in the present, a considerable amount of compensation has been made under special Acts even if the State or a local government is exempted from liability pursuant to the above proviso. Accordingly, the problems that the above provision of the Constitution and the State Compensation Act, which have been pointed out in the past, are likely to excessively infringe on the people's fundamental rights, have been resolved, and the above provision of the Constitution and the State Compensation Act, even in the case falling under the above proviso, may cause a problem of discrimination against the other general public as a substantial double compensation if the State or a local government is permitted to compensate for damages. Accordingly, the defendant

3. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed, and since the judgment of the first instance is unfair with different conclusions, the defendant's appeal shall be accepted and the plaintiffs' claim shall be dismissed. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Kim Dokn

Judges Park Jin-hwan