2012Nu20511 Demanding the termination of entitlement to disability pension and revocation of revocation of additional payment

A person shall be appointed.

Law Firm ○○○○

[Defendant-Appellant]

Attorney Kim Jae-soo ○○

Korea Labor Welfare Corporation

Representative ○○○○

Litigation performer ○○○

Seoul Administrative Court Decision 2011Gudan24999 decided June 15, 2012

May 3, 2013

May 31, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the defendant.

1. Purport of claim

On November 2, 2010, the Defendant issued a disposition to extinguish the entitlement to receive a disability pension and to pay a site for a disability pension against the Plaintiff.

(3) The claims of the complaint are written in writing on November 1, 2010.

2. Purport of appeal

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

1. Facts of recognition

The plaintiff as an employee belonging to the ○ industry, who is a part of the mechanical parts during the vessel cutting operation on March 19, 2005.

With the approval of the defendant's medical care by suffering from an inspection of the left side of the inner side of the inner side of the Danal dysium, the inner side of the left side of the Tribunal.

On April 9, 2005, at least 5§¯ left in the inner part while closing treatment (on April 9, 2005, the left-hand eye of the opinion of the host).

The bottom 7cm above, the top 3cm above the left-hand box, the front side of the defendant's advisory opinion, 5cm above the 5cm, 2.5cm below the defendant's advisory opinion) this "in appearance"

1) Determination of disability grade VII (No. 12) (No. 12) on the ground that it constitutes a case in which the remaining portion is obvious

The beneficiary received a disability compensation annuity from May 1, 2005 to October 31, 2010.

The plaintiff undergoes a sex surgery at his own expense after the completion of treatment, and the defendant on October 28, 2010 "Defendant ○○" on October 28, 2010

○ The current state of deliberation by the community of advice on branch offices shall be the Industrial Accident Compensation Insurance Act (hereinafter referred to as the "Act") 2

Article 58 (Disability Compensation Annuity) Article 58 (Act 3)

Following the payment of disability pension for the period from October 1, 2010 to October 31, 2010, following the extinguishment of entitlement to receive benefits.

As of November 1, 2010, the right to receive a disability pension is extinguished, and thus the payment of pension is suspended.

was made.

At present, the part of the plaintiff's inner part remains 6cm on the left-hand buck, 2.8cm above the upper alcohol, and the above 2.8cm above.

The chest is not well visible at a distance, but at a distance of two meters, people's eye.

[Evidence] Each description and image of Gap 1-3, 5, Eul 1-5 (including each number), ○ University Disease of party members

Part of the result of the physical appraisal commission against the Director, the purport of the whole oral proceedings

[Rejection Evidence] Part of the result of the above physical appraisal commission

2. Relevant statutes;

(a) Amendment of the provisions concerning disability grades due to the chest of a mother;

1) Enforcement Decree, Enforcement Rule, etc. of 2003

Enforcement Decree of the Act (Enforcement Decree of July 1, 2003, 2003, hereinafter 2003, hereinafter referred to as the "Enforcement Decree") amended by Presidential Decree No. 17977 on May 7, 200

The physical disability grade table in Article 31(1) related to Article 31(1) of the Enforcement Decree (attached Table 2) shall be referred to as "the mother who is obvious in the appearance."

A person remaining after Easy as Class B (No. 12), and "B (No. 12)" as a person remaining after Easy as a mother.

The provision was defined.

Enforcement Rule of the Act amended by Ordinance of the Ministry of Labor No. 193 on July 1, 2003 (Enforcement July 1, 2003; hereinafter 2003)

Article 42 related to the Enforcement Rule (attached Table 4) [Attachment 4] Determination of a disability grade by physical parts of the body shall be as follows:

obvious chest means, on the face of a face, the upper part of that Party of a size not less than that of the face (hereinafter referred to as ¡°demony of the face¡±);

(d) or “the length of not less than 5§¯ in length” or “the length of the line-shaped (hereinafter referred to as a vessel trace) or the head of 10 won.

Where there is an organization in excess of a size, it refers to at least at least a level of human eye, and "out" refers to external appearance.

For the inside of the mother, a plebre means a reflectors of the size of 10 won or more, or the term “3cm in length” means 3cm or more;

The term "onboards of the vessel" means at least a level of human eye being scambling.

Meanwhile, according to the Defendant’s inquiry (as 6602 - 1617, December 5, 2003, No. 4), a person’s eye is examined.

With respect to the standard of judgment exceeding the level of the body, "the distance of the body of the person" shall be the distance of the body of the person.

There is no express provision that is understood as a distance between people and people normally.

It is desirable to do so, and it is not accepted as a sound common sense and in special cases.

It is stated that it should not be interpreted as a distance from which the conversation may be possible.

2) Enforcement Decree and Enforcement Rule of 2008

Enforcement Decree of the Act (amended by Presidential Decree No. 20875, Jun. 25, 2008; July 1, 2008; hereinafter referred to as the "Enforcement Decree") amended by Presidential Decree No. 200875, Jul. 1, 2008

According to the criteria for disability grade under Article 53(1) related to Article 53(1) of the Enforcement Decree (attached Table 6), “the appearance may stimulate”

Any person who remains with a chest of the Do as Class B (Class 12) and any person who remains with a high chest in the appearance of the Do (Class 7);

Grade 9 (No. 18), "A person who remains with a scarcity in the outer mother" as "Class 11 (No. 13)," and "a mother" as "a woman in the outer mother".

A person who remains scar in Gyeong-do has been amended to Grade B (No. 13) and has reached the present.

Enforcement Rule of the Act amended by Ordinance of the Ministry of Labor No. 304 on July 1, 2008 (Enforcement July 1, 2008; hereinafter 2008, hereinafter referred to as the "Enforcement Rule").

Detailed criteria for determining disability grades by physical parts in relation to Article 48 of the Enforcement Rule (attached Table 5)

According to Section B, "A person who remains with extreme scarcity in the appearance of the mother," whose inside part is at least 100 km of the face of the inner part of the mother.

A person who has an organization of not less than 32m2m2 or a 32m2m2 or more, and a person who remains with a high chest in the appearance.

“A” means the upper part of the inner part of the parallel of not less than 50cm, or the upper part of not less than 16cm, or the upper part of not less than 20cm;

A person who has a trace remaining, and "a person who remains a pleyer of a middle-do on his/her mother" shall be deemed to have a 25 square meters inside the inside of his/her mother.

A person with a minimum of 8 m2 m2 and above the upper half of the world, an organized m20 m2 or more, "in excess of 10 m20 m2",

"A person who remains with a scar in the outer cap" shall be referred to as "a person who has at least 12§¯ in the inside of the inside of the city with a diameter of at least 12§¯," and "in the inside of the city

A person who remains a reflectr of a vessel;

(b) Legal provisions pertaining to disability compensation annuities;

Law amended by Act No. 6100 of December 31, 1999 (amended by Act No. 6100 of July 1, 2000; hereinafter referred to as the "Act of 2000")

C) According to Article 42(2) related to Article 42(2) [Attachment 1] disability benefit table, “Disability benefits shall be the first benefit of a disability grade.”

class 7 shall be a disability compensation annuity or lump-sum disability compensation, and class 8 through 8 of the disability grade;

14th degree of lump-sum disability compensation benefits shall be defined as " lump-sum disability compensation benefits," and the current Act Article 57 (2).

Relevant [Attachment 2] only changes in the location of the articles is the same as the contents.

(c) Establishment and amendment of regulations on changes in the state of disability;

1) Act, Enforcement Decree, Enforcement Rule, etc. of 2000

Article 42-2 of the Act, in 2000, shall be deemed to have died or other persons prescribed by the Presidential Decree.

If the right to receive benefits is determined, the provision was newly established.

Enforcement Decree of the Act (amended by Presidential Decree No. 16871, Jun. 27, 2000) amended by Presidential Decree No. 16871, Jul. 2, 2000

1. Article 31-2 of the Enforcement Decree of 200 (hereinafter referred to as the "Enforcement Decree of 200") shall be prescribed by the President under Article 42-2 of the Act;

(1) A beneficiary of disability compensation annuity:

2. Change in the status of disability:

If the beneficiary of the disability compensation annuity is excluded from the beneficiary of the disability compensation annuity, “(5)”.

Meanwhile, the Enforcement Rule of the Act amended by Labor Ministry No. 165 of July 29, 2000 (Enforcement Rule of July 29, 2000) (Enforcement Rule of the Act, enforced on July 29, 200)

Enforcement Rule of 200) is a business due to pneumoconiosis under Section 5 (Articles 45 through 59).

A separate provision concerning the recognition, diagnosis, determination, medical care standards, invalidity grade standards, and disability grade standards;

Article 53 of the Act on the Prevention of Pneumoconiosis and Protection, etc. of Pneumoconiosis Workers (hereinafter referred to as " pneumoconiosis").

Determination and reexamination of classification of pneumoconiosis control under Articles 17 and 18 of the Workers Protection Act (the Workers Protection Act);

Pneumoconiosis workers notified of the decision on the request shall be subject to the procedures referred to in Articles 47 through 52.

claim for disability benefits without going through the Corporation. In this case, Article 17 of the Pneumoconiosis Workers Protection Act; and

the decision on classification or review of pneumoconiosis control under Article 18 shall be made.

The pneumoconiosis determination referred to in paragraph (2) of Article 52 shall be deemed to be the pneumoconiosis determination under paragraph (2) of the Pneumoconiosis Workers Protection Act.

Article 12 (1) of the Act (amended by Act No. 8374 of Apr. 11, 2007) shall apply to dusty work for not less than one year.

A person who has engaged in a job but has been able to undergo a health examination for retired workers each year at his/her request after departure.

The disease requires continuous observation and treatment due to its characteristics.

in the light of the fact that the symptoms are highly likely to change, at least one year, the right to apply for additional medical care.

It guarantees appropriate treatment according to symptoms appearing at each time, and in lieu thereof;

Any further determination of a disability grade shall be made as a result of the precise diagnosis in response to the level of occasional changes.

That is.

According to the defendant's inquiry at the time of questioning (the salary standard team 2294, December 29, 2005), according to "the changes in the conditions of disability"

the time and procedure of revaluation of disability status even though the right to receive a pension has been extinguished;

there is no specific provision that it is difficult to regularly operate but it is evident that the state of disability has changed.

(if it is possible to establish the Corporation by filing a petition or an application for medical care).

If a change in entitlement to benefits is reported by suspending payment and reporting a change in entitlement to benefits, such change shall be deemed a disability.

It is reasonable to determine the grade. Accordingly, it is reasonable to determine the grade of the disability in the changed condition of disability or the rate of disability.

If a claim for gold is terminated, the grade of disability of the king shall be extinguished, and the future shall be based on the date of re-determination.

It is stipulated that disability benefits should be paid according to the newly determined disability grade.

2) Law of 2008

Law amended by Act No. 8694 of Dec. 14, 2007 (amended by Act No. 8694 of Jul. 1, 2008; hereinafter referred to as the "Act of 2008")

(C) Article 58 of the Act refers to the number of disability compensation annuities, if the beneficiary falls under any of the following subparagraphs:

1. In the event of death, 2. A beneficiary of a disability compensation annuity who was a national of the Republic of Korea;

b) leaves Korea to lose nationality or to reside in a foreign country;

3. Departure of the beneficiary of disability compensation annuity who is not a national of the Republic of Korea, to reside in a foreign country;

4. If the disability grade changes and is excluded from the beneficiary of a disability compensation annuity, the disability grade shall be changed:

Since the provision was enacted, the above provision remains thereafter, and it was enforced in 2008 ( July 1, 2008).

The Act of 2008 shall apply from the person to whom the causes for claiming disability benefits have occurred after recovery (Article 6 of the Addenda), and

At the time of enforcement, a non-Korean national resides in a foreign country and receives a disability compensation annuity.

Notwithstanding the amended provisions of Article 58, the previous provisions shall apply (Article 21 (1) of the Addenda).

(d) Establishment of new regulations concerning the determination of disability grades;

Article 59 of the Act of 2008 provides for "(1) The Corporation shall provide for the state of disability among beneficiaries of disability compensation annuities."

(b) If the degree of disability determined at the time of cure is likely to be changed due to aggravation, the number thereof;

(2) Disability, etc. referred to in paragraph (1) may be re-determined, either ex officio or upon request of a person with a disability right.

If the disability grade is changed as a result of the re-determination of the class, disability benefits shall be paid according to the changed disability grade.

(c) The re-determination of a disability grade under paragraphs (1) and (2) shall be conducted once, but the persons subject to such re-determination, time and re-determination;

Methods of paying disability benefits according to the results of the determination shall be prescribed by Presidential Decree.

The above amendment provisions have been cured since the enforcement of the law in 2008 ( July 1, 2008) and have been cured for disability benefits.

(Article 6 of the Addenda) and the previous regulations at the time of the enforcement of the law in 2008.

A person who is receiving a disability compensation annuity according to the prescribed terms and conditions, notwithstanding the amended provisions of Article 59, the disability grade;

section 21(2) of the Addenda.

Articles 55 and 56 of the Enforcement Decree of the 2008 shall be subject to the re-determination of a disability grade under Article 59 (3) of the Act.

A person shall be in accordance with the neutism, mental function, leutism, arms, legs, fingers, leutism or pneumoconiosis.

a disability, and the re-determination of the disability grade is the date when the payment of the disability compensation annuity has been decided; and

the date when the grade of disability is cured after additional medical care (if the grade of disability is changed, the payment of disability compensation annuity resulting therefrom.

(1) within one year after the date on which the decision was made. The term "as defined in this section" shall be

(c)

As such, re-determination of a disability grade can change from among persons who receive a disability pension.

That is, only the remaining person of the disability, and that there is a possibility of a change in the state of the disability;

There are four parts, i.e. negoretic disorder, spinal disorder, anti-functional disorder, pneumoconiosis, etc., and the head of the Gu;

Re-determination of a sea level shall be made within one year after two years have passed since the date the disability grade was determined.

In addition, as the re-determination system of disability grade was introduced on July 1, 2008, the disability pension was cured before that.

A person who is subject to the judgment is not subject to the ruling but is subject to the disability pension before July 1, 2008.

A person who completed medical care after July 1, 2008, even if he/she received additional medical care, is two years after the completion of additional medical care.

If you have passed, they should be tried.

3. Determination on the legality of the instant disposition

A. Determination on the initial reason for disposition (whether the entitlement to a disability compensation annuity is extinguished under the law of 2008);

Disability benefits under the Act shall be the completion of treatment for a worker suffering from an injury or disease due to his/her duties.

(2) If there is a physical disability after the completion of treatment, such physical disability shall be paid

The employee acquires the right to claim the payment of disability benefits at the time of the occurrence of the reasons for such payment.

Disability grade determination for the payment of disability benefits also is the time when the right to claim disability benefits is acquired.

In principle, it is in accordance with the law at the time of occurrence of reasons for payment (Supreme Court Decision 2004Du204 Delivered on February 22, 2007).

12957).

Defendant’s disability status of the Plaintiff [Attachment 2] and Enforcement Rule of 2003 [Attachment 4]

A person who has a well-known chest in his/her mother (Article 7 subparag. 12 of grade 7, and a person who has a trace of being 5cm or more in length of the inner part);

to the extent that he/she remains in his/her eye) "Enforcement Decree of 2008 [Attached Table 6] and Enforcement Rule of 2008 [Attachment Table 5]

person who remains with a sniveter of the latitude (as defined in class 13, class 13, class 5cm in length of the inner part, remaining in the upper half of the longitude);

(8) The entitlement to a disability compensation annuity under section 58 of the Act, 2008, on the premise that the change was made.

However, the plaintiff completed treatment on April 9, 2005, and at the expense of the plaintiff after the completion of treatment.

Even if the state of disability was somewhat improved through a sex surgery, treatment is completed after July 1, 2008.

As such, the plaintiff is cured before July 1, 2008 and causes for claiming disability benefits have occurred.

Pursuant to Article 6 of the Addenda of the 2008 Act, the time of 2008, and the time of 2008

Article 42-2 and Article 31 of the Enforcement Decree of 2000, not subject to the Enforcement Rule, but subject to the application of the Enforcement Rule.

No. 2 of the Act, the Enforcement Decree of 2003, the Enforcement Rule, the Enforcement Rule shall apply. Accordingly, the Plaintiff shall be subject to the law of 2008.

Article 58, the Enforcement Decree of 2008 [Attached Table 6], and the Enforcement Rule of 2008 [Attached Table 5], shall change the grade of disability.

Since the payment of disability compensation annuity cannot be discontinued, the defendant applied Article 58 of the Act in 2008.

The disposition of this case was unlawful (if the plaintiff was cured after the enforcement of the law in 2008, the Disability Benefit Agency

Article 6 of the Addenda of the 2008 Act does not apply if any ground for the Gu occurred, and Article 58 of the 2008 Act does not apply.

Article , the Enforcement Decree of 2008 [Attached Table 6], the Enforcement Rule of 2008 [Attached Table 5], and the Enforcement Rule of 2008 [Attachment Table 5] shall change the grade of disability.

The payment of disability compensation annuity can be suspended.

B. Determination on the grounds for additional disposition

1) Whether the right to receive a disability compensation annuity under the Act of 2000 and the Enforcement Decree thereof is extinguished

The defendant has a significant chest in appearance in the Enforcement Decree of 2003 and the Enforcement Rule of 203.

person(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s))

The Enforcement Decree of 2003 and the Enforcement Rule of the 2003 shall apply to persons who remain pleasy in the appearance (Grade 14, 12, 14, 200

Article 42bis of the Act, 2000, as a result of a change to the body of people in line with 3cm or above;

Pursuant to subparagraph 2 of Article 31-2 of the Enforcement Decree of 2000, the Plaintiff’s entitlement to disability compensation annuity has ceased to exist.

Therefore, the instant disposition asserts that it is lawful.

The disability that remains at present in the Plaintiff shall be 6cm on the left-hand knivem, 2.8cm above the upper alcohol.

A person who remains with a scarcity in the appearance of the mother under the Enforcement Decree of 2008 and the Enforcement Rule of 2008 (Grade 13, 13);

Although there is room to regard the Plaintiff as falling under “B” in the event of a balance of at least 5 meters in the length of the inner part.

according to the Enforcement Decree of 2003 and the Enforcement Rule of 2003, whether or not the margin of the inside part of the ship is “ obvious”

As to whether or not a person is able to find in a distance ordinarily between people, "B" in length.

Since the plaintiff is only based on the standard of judgment and does not have any other standard of judgment, the plaintiff is also in a sexual surgery.

Despite the fact that the face of not less than 5 cm in length remains, and this dialogues in close distance.

In case of discovery, it is still possible to discover, and "the mother is obvious to the appearance" in the Enforcement Decree and the Enforcement Rule of 2003.

person who has left the ter constitutes “A”. Accordingly, when the plaintiff’s disability was caused by a sex surgery in 203.

A person who remains with a particularly chest in the appearance" under the Enforcement Rule of the Republic of Korea. "Seman who remains with a chest in the appearance"

The defendant's above assertion is without merit because it cannot be seen that there was a change in sight.

2) Whether withdrawal of a beneficial administrative act is permissible

The defendant has changed in circumstances where the disposition of this case is no longer necessary to maintain the original disposition.

(1) If such action has been brought or is necessary for a significant public interest, such action shall become void.

It is based on the legal principle that the plaintiff may withdraw from the form of a single administrative act, and the plaintiff may conduct a sex surgery.

of this case, the Industrial Accident Insurance Fund has been confirmed to have a significant defense beyond the medical history of nature.

Article 58 of the Act of 2008 applies to cases where there is a need for significant public interest, such as fairness in operation.

Even if it is not pursuant to subparagraph 2 of Article 31-2 of the Enforcement Decree of the 2000 to Articles 42-2 and 31-2 of the Act;

The instant disposition asserts that it is lawful.

The agency which has performed an administrative act has no particular defect at the time of the disposition, and after the disposition,

(b) the original disposition needs to be maintained even if there is no separate legal basis to withdraw such action.

(1) Where there has been a change in circumstances or there has been a need for a significant public interest, the validity thereof.

(b) the beneficial administrative action, or the beneficial administrative action; or (c) the beneficial

cancellation or withdrawal of a portion, it would infringe upon the people's rights to benefit already granted.

Therefore, even if there is a reason for cancellation, etc., the exercise of the right of cancellation, etc. is an infringement of the right of acquisition.

necessary for the important public interest or for the protection of a third party’s interest to justify such action;

shall be determined by comparing with the disadvantage suffered by the other party, and due to such disposition

Where the disadvantage of the other party is enormous than the need for public interest, the limitation of discretionary power

It is in itself illegal (Supreme Court Decision 2003Du10251, Nov. 26, 2004, 10268)

[Judgment]

① Disability status except for pneumoconiosis disorders in the Act, Enforcement Decree, Enforcement Rule, etc. of 200

any provision regarding a disability for which the right to a disability compensation annuity is scheduled to be extinguished due to any change in the status;

(2) Disability caused by a scarcity shall be re-issued of the disability grade as prescribed in Article 59 of the Act, 2008.

In the case of a disability subject to re-determination of a disability grade but not subject to determination of a disability grade, the law of 2008 shall also apply.

The previous provision at the time of enforcement of the Act in 2008, which is cured before

(2) If a person receives a disability compensation annuity pursuant to the applicable subparagraph, the person is not subject to the disability grade;

(Articles 6 and 21(2) of the Addenda to the Act, 2008, which shall be determined by the disability grade under the previous system

It is intended to protect the rights of beneficiaries receiving disability compensation annuities; and 3.

In the case of remaining chests, sex surgery due to natural progress or the development of medical technology shall be conducted in the case of a scarcity.

Throughout this, the legislators generally have a greater preference to the original state, and the legislators consider such circumstances.

The criteria for disability grade were prescribed, and the defendant also determined the disability grade under these circumstances.

In light of the fact that the plaintiff's sex surgery seems to have been conducted at his own expense, the state of disability is somewhat somewhat different from that of the plaintiff.

This constitutes a change in circumstances that could withdraw the initial disposition even if it was previously set aside; or

It is necessary for the important public interest to withdraw the original disposition until it impairs the plaintiff's vested right; and

It is difficult to see that there is a need to protect the interests of a third party and otherwise recognize it.

Since there is no evidence, the defendant's above assertion is without merit.

4. Conclusion

If so, the disposition of this case is unlawful and thus, the plaintiff's claim seeking its revocation is justified.

Therefore, the judgment of the court of first instance is just and reasonable, and the defendant's appeal is dismissed.

this decision is delivered with the judgment of the court.

Judges Lee Jae-won

Judges Gangseo-Appellee

Judge Shin Jae-hun

1) It is based on the enforcement decree of 2003, which is seen later.

2) As seen earlier, the law of 2000.

3) As seen earlier, the law of 2008.

4) 1. Where a national beneficiary emigrates to a foreign country; 2. Where a foreign beneficiary leaves Korea;

5) Article 41 of the Act amended by Act No. 8373 on April 11, 2007 is “the beneficiary of a disability compensation annuity dies or other cases prescribed by Presidential Decree.”

The right to receive benefits is extinguished. The location of a provision was transferred from the former Article 31-2 to Article 41, and the Enforcement Decree was amended by the above amendment.

This amendment has not been made.

6) The Enforcement Decree of the 2000 Enforcement Decree provides the contents under the law.

7) The term "curology" means a therapy that results in a state in which an injury or disease has been completely cured or in which the effect of treatment cannot be expected any longer, and its symptoms are fixed.

(Article 5(4) of the Act, 2008.

8) A disability grade was changed from the Enforcement Decree of 2003, from class 7 (No. 12) to the Enforcement Rule of 2008, and class 13 (No. 13) to the Enforcement Rule of 2008, and the Enforcement Rule of 2008.

Since the disposition of this case was taken on the premise of B, Article 42-2 of the Act of 2000 and Article 31-2 subparagraph 2 of the Enforcement Decree of 2000 did not present as the basis law.

The article 58 of the law of 2008 is presented as a basis law.