(영문) 광주고등법원 제주재판부 2017.3.22.선고 2016누1082 판결

B. On February 27, 2013, the Defendant’s disposition of non-existence of a person eligible for veteran’s compensation against the Plaintiff is revoked.

2. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

On February 27, 2013, the Defendant’s disposition of non-existence of a person of distinguished service to the Plaintiff is revoked. Preliminaryly, on February 27, 2013, the Defendant revoked the Defendant’s disposition of non-recognition of a person of distinguished service to the State who rendered distinguished service to the Plaintiff (the Plaintiff sought a claim for revocation of non-recognition of a person of distinguished service to the State and a person of distinguished service to the State in the first instance trial in a simple and simple form, but the Plaintiff amended the purport

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

The reasons for this part are the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, they are cited by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion

원고는 군입대 후 2006년 9월경 뜀뛰기를 하던 중 허리를 다쳐 이 사건 상이를 입게 되었는바, 이는 국가의 수호·안전보장 또는 국민의 생명 · 재산 보호와 직접적인 관련이 있는 직무수행이나 교육훈련 중 상이를 입은 것이므로 공상군경으로서 국가유공자 요건에 해당하고, 가사 그렇지 않더라도 보훈보상대상자 요건에 해당한다. 따라서 주위적으로 국가유공자 비해당결정처분의 취소를, 예비적으로 보훈보상대상자 비해당결정 처분의 취소를 구한다.

3. Whether each of the dispositions of this case is legitimate

(a) Facts of recognition;

1) 원고는 군입대 전 요추 부위와 관련하여 진료를 받은 적이 없었는데, 입대 후 1개월경이 지난 2006년 9월경 신병훈련소에서 체력단련을 위한 뜀뛰기를 하던 중 허리를 삐끗하였다.

2) On November 13, 2006, the Plaintiff, on the ground of the climatic and non-radioactive radiation generated from September 2006, was transferred to the Cheongpyeong Hospital in the National Armed Forces. The Plaintiff was diagnosed with the climatic signboards, the climatic salt pans, and the tension, and received physical treatment at the said hospital after receiving the physical treatment.

3) On January 4, 2007, the Plaintiff was examined by the CT and MRI at the Armed Forces Water Service Hospital. As a result of the examination, the Plaintiff was hospitalized in the Armed Forces CT and MRI Hospital from January 5, 2007, and there was an opinion on the escape from the oriented signboard accompanied by the pressure of neutical pressure.

4) On January 24, 2007, during hospital treatment, the Plaintiff was discharged from military service on February 14, 2007 following a compulsory investigation into the fact that he/she is found to be unfit for active duty service.

5) After discharge on May 9, 2007, the Plaintiff was subject to RoI’s inspection at C Hospital on May 9, 2007, and as a result of the examination, there was a serious nephical pressure by the leap escape certificate No. 4-5.

6) On July 19, 2011, the Plaintiff received 4-5 publication in the Busan Veterans Hospital of 197 in the lusium 4-5 lusium and artificial cases.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1, 2 (including a branch number; hereinafter the same shall apply), Eul evidence Nos. 1, 3, and 5, and the result of the entrustment of the examination of medical records to the head of the Seoul Hospital at the court of first instance and the fact-finding, the result of the fact-finding on the head of the Seoul Hospital at the court of first instance before remand (hereinafter the above results of the examination of medical records and the results of each fact-finding on the head of the Seoul Hospital at the time of remand), the purport of the entire pleadings as a whole.

B. Determination on the legitimacy of the non-existence of a disposition that rendered distinguished service to the State

1) Requirements for persons who rendered distinguished services to the State

A) Article 1(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter “Act on the Honorable Treatment and Support of Persons, etc.”) provides that “military personnel, police officers, and fire-fighting officials discharged from military service, or retired from military service by suffering from wounds (including diseases) directly related to national defense and security, or to the protection of people’s lives and property, and thus, the degree of their disability determines “persons determined as disability ratings in physical examinations conducted by the Minister of Patriots and Veterans Affairs as soldiers and police officers who have rendered distinguished services to the State” as the requirements for the recognition of persons of distinguished services to the State

Meanwhile, Article 4(2) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State shall be delegated to the Presidential Decree on the basis of the delegation. Article 3 [Attachment Table 1] 2-1 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State”) provides for “military personnel who died or died from an accident or disease due to an existing accident or disease in the course of performing their duties, including the control of maritime tort, military crime investigation and trial, inspection, accident scene, accident scene, accident relief, disaster relief, etc.” (excluding Grade 22-1 “the person who died or died from an accident or accident due to a direct cause or disease due to an accident or disease due to the performance of duties by a person of distinguished service to the State” (excluding Grade 2-2).

B) Therefore, in order to recognize that the performance of duties or education and training as stipulated in Article 3 [Attachment I] of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, it is insufficient to simply have a proximate causal relation between the performance of duties, education and training, and death or wound, and it is reasonable to view that the death or wound should be the main reason for the performance of duties or education and training, which are directly related to the national defense, security, or the protection of the lives and property of the people. In such a case, the sacrifice may be determined in line with the legislative intent and purpose of the Act on Persons of Distinguished Services to the State, which intends to contribute to national integration, by putting the sacrifice therefrom

Therefore, even if the performance of duties or education and training has partly affected the death or wound, it cannot be deemed that the performance of duties or education and training is the principal cause of the death or wound, such as where it is mainly caused by the physical personality, personality, or living habits of the principal, or where it is merely aggravated due to the performance of duties or education and training.

2) Determination

이 사건에서 보건대, 위 인정증거에 의하면 원고는 2006, 8. 7. 논산훈련소에 입대하여 2006년 9월경 체력단련을 위한 뜀뛰기를 하다가 허리를 삐끗하여 이 사건 상이를 입게 되었고, 원고의 경우 이미 추간판 퇴행이 진행된 상태에서 급성적으로 추간판탈출증이 발생된 것으로 보이는바, 그렇다면 원고가 입대하기 전에 이미 진행된 추간판의 퇴행이 이 사건 상이의 발병에 적지 아니한 영향을 미쳤으므로, 이 사건 상이는 국가유공자법 시행령 제3조 [별표 1] 제2-2호에서 정한 "교육훈련이 직접적인 원인이 되어 발생한 사고 또는 재해로 상이를 입은 경우, 또는 제2-8호에서 정한 "직무수행 또는 교육훈련이 직접적인 원인이 되어 급성으로 질병이 발생하였다고 의학적으로 인정된 질병에 걸린 경우"에 해당한다고 볼 수 없다.

3) Sub-determination

Therefore, the defendant's disposition of non-existence of a person who rendered distinguished service to the State is legitimate, and the plaintiff's primary argument is without merit

C. Determination as to the legitimacy of a disposition non-existence of a person eligible for veteran’s compensation

1) Requirements for persons eligible for veteran's compensation;

Article 2(1)2 of the Act on Support for Persons Eligible for Veteran's Compensation (hereinafter referred to as the "Act on Persons Eligible for Veteran's Compensation") provides that "A soldier, etc. who has been killed or wounded due to an accident or a disaster other than education and training under subparagraph 2-1 through 2-8 of the Enforcement Decree of the Act on Persons Eligible for Veteran's Compensation (hereinafter referred to as the "Enforcement Decree of the Act on Persons Eligible for Veteran's Compensation") shall be construed as "a person who has been killed or wounded due to an accident or a disaster other than education and training under subparagraph 2-2-1 through 2-8 of the Enforcement Decree of the Act on Persons Eligible for Veteran's Compensation (hereinafter referred to as the "Decree on Persons Eligible for Veteran's Compensation"). Article 2 of the Act on Persons Eligible for Veteran's Compensation and Compensation and Article 2 of the Enforcement Decree of the Act on Persons Eligible for Veteran's Compensation and the Enforcement Decree of the Act on Persons Eligible for Veteran's Compensation and the Act on Persons Eligible for Veteran's Compensation."

2) Determination

위 인정사실에 갑 제1, 2호증, 을 제1, 3, 5호증의 각 기재, 진료감정결과, 변론 전체의 취지에 의하여 알 수 있는 다음과 같은 사정들 즉, ① 원고는 군 입대 전까지 허리와 관련된 진료나 치료를 받은 적은 없었는데 2006년 9월경 체력단련을 위한 뜀 뛰기를 하다가 허리를 삐끗하여 이 사건 상이를 입게 되었고 이로 인하여 의병전역을하게 된 점, ② 이 사건 상이(요추 추간판탈출증)의 원인은 복합적인데 원고의 경우 추간판 퇴행이 진행된 상태에서 위와 같이 군대에서의 훈련과정에서 허리를 삐끗하여 급성적으로 추간판탈출증이 발생된 것으로 보이는 점, ③ 원고가 이 사건 상이 발병 이후 치료를 받아 왔으나 계속 악화되어 2011년 7월경에는 요추 부위에 요추궁감압술 등의 수술을 받기에 이른 점 등을 종합하면, 원고는 국가의 수호·안전보장 또는 국민의 생명 · 재산 보호와 직접적인 관련이 없는 직무수행이나 교육훈련 중 이 사건 상이를 입었고, 이 사건 상이의 발생 또는 악화가 원고의 직무수행이나 교육훈련과 상당인과관계가 있다고 봄이 상당하다.

3) Sub-determination

Nevertheless, the Defendant’s disposition of non-existence of a person eligible for veteran’s compensation was unlawful on the ground that the instant difference had no causal relationship with his/her duty performance. Therefore, the Plaintiff’s conjunctive assertion

4. Conclusion

Therefore, the plaintiff's primary claim seeking the revocation of the decision corresponding to the person who rendered distinguished services to the State of this case is dismissed as it is without merit, and the plaintiff's conjunctive claim seeking the revocation of the decision corresponding to the person holding distinguished services to the State of this case shall be accepted as it is with merit. Since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by accepting part of the defendant's appeal