Plaintiff (Law Firm Gyeong-Gyeong et al., Counsel for the plaintiff-appellant)

The Minister of National Defense

May 31, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's refusal to pay pension for wounds against the plaintiff on September 17, 2012 is revoked.

1. Details of the disposition;

A. On July 25, 1984, the Plaintiff entered a lower-ranking candidate and worked as lower-ranking officers from January 1, 1985 to around January 3, 1985. On May 22, 1985, the Plaintiff continued to participate in a training without receiving proper treatment for the left part of the shoulder at the △△ Hospital’s △△ Hospital on May 15, 1985, and the injury was aggravated, and was discharged from hospital on December 13, 1988 without completely treating the entire area. However, on October 15, 1985, the Plaintiff was discharged from the hospital at △△△△ Hospital on December 15, 1985, after receiving diagnosis of the lower-ranking and trauma secte infection (e.g., the plane between the end of the shoulder and the e., the e., the e., the e., g., the e., the e., the e., external cutting.

B. On April 14, 1992, the Board of Patriots and Veterans deliberated and resolved that the above injury constitutes a wound under Article 4 (1) 6 of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 6011 of Aug. 31, 1999), and applied for registration to the head of Daegu Regional Office on May 2, 1992, but on May 1992, the Plaintiff was not registered as a person of distinguished service to the State upon receiving an extra-examination conducted by the ○○ Hospital on May 19, 192.

C. The Plaintiff applied for registration of a person of distinguished service to the State again on January 27, 200, which was after a disability rating 7 was newly established under Article 6-4 of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Act No. 9079 of March 28, 2008; hereinafter “the Act”), but the head of the racing branch refused the Plaintiff’s application by making a decision below the rating standard on May 23, 200, according to the result of the physical examination conducted by △△△ Hospital for re-verification that the Plaintiff’s objective movement restriction was weak.

D. On December 23, 2002, the plaintiff filed a lawsuit against the head of the Daegu District Court seeking the revocation of the above grade judgment, and on December 23, 2002, the plaintiff was sentenced to a revocation of the above grade judgment on the ground that the plaintiff fell under class 7 of the disability rating since the plaintiff's completion of the relevant grade grade on the part of the national branch of the Korean branch of the Daegu District Court and the remaining persons who were in a fluent frame, and the above grade judgment became final and conclusive on January 10, 2003.

E. After that, on February 2003, the Plaintiff was judged at Grade 7 of the disability rating in a physical examination to verify the classification of disability ratings conducted by △△△ Hospital, and on March 6, 2003, the head of the racing branch decided the Plaintiff as a person of distinguished service to the State under Article 4(1)6 of the Act on Persons of Distinguished Service to the State.

F. On June 19, 2007, the Plaintiff, in a physical examination for disability rating conducted by the △△ Hospital, was determined as having a serious disorder on the part of the part of the shoulder gate, due to the flag’s aftermathing of the left part of the △△△ Hospital, he was determined as having a serious disorder in the flag’s function on the part of the shoulder gate. Accordingly, on June 19, 2007, the head of the race and veterans branch also promoted the Plaintiff’s disability rating as above.

G. Meanwhile, on June 24, 2010, the Constitutional Court rendered a ruling of inconsistency with the Constitution (hereinafter “decision of inconsistency with the Constitution”) to the effect that Article 23(1) of the former Military Pension Act (amended by Act No. 11042, May 19, 201) (hereinafter “former Military Pension Act”) provides that “A soldier whose disability became final and conclusive after retirement from office due to a disease or injury in the line of duty shall not be in conformity with the Constitution if the provision on the payment of a pension for wounds is not prescribed in the Constitution.” Meanwhile, the Constitutional Court made a ruling of inconsistency with the Constitution to the effect that the provision on the former Act shall continue to apply until the legislators revised the Act as of June 30, 201 (hereinafter “decision

H. On May 19, 201, Article 23(1) of the former Military Pension Act was amended and enforced on May 19, 201 to the effect that “if a soldier retires from office under the condition of disability due to a disease or injury caused by official duties,” as well as “if the soldier becomes disabled due to the disease or injury after retirement,” it was paid a pension for wounds from the time of his/her death (hereinafter “Article 23(1) of the current Military Pension Act”) and its retroactive application was not separately provided.

I. Accordingly, the Plaintiff filed an application for the payment of a wounded veterans' pension, but on September 17, 2012, the Defendant decided that it is not eligible for a wounded veterans' pension since the Plaintiff had a ground for benefits before the new provision became effective (hereinafter "instant disposition").

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 5, 6, Gap evidence 2-1, 2, Gap evidence 4-1, 2, 3, Gap evidence 7-1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) 원고는 새로 받은 신체검사 결과에 따라 2007. 6. 19. 국가유공자법에 따른 상이등급이 7급에서 6급 2호로 승급되었고, 2012. 7. 2. ☆☆☆☆☆병원에서 팔 신경총병증이 새롭게 발견되는 등 폐질이 계속 악화되어 왔으므로, 신법 조항이 장래효만 가진다고 하더라도, 원고는 상이연금의 지급대상에 해당한다.

(2) Inasmuch as the retroactive effect of the decision of unconstitutionality affects general cases of the same kind filed on the same ground, the plaintiff is included in the subject of a pension for wounds.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

(1) As to whether the new legal provision can be applied to the Plaintiff

(A) The scope of application of the new law provision

With respect to the applicable scope of a pension for wounds after the enforcement date of the new provision of the Act (amended by May 19, 201), the opinion that ① applies to a soldier retired from office after the enforcement date of the Act, ② that the provision applies to a soldier who established the requirements for payment of a pension for wounds after the enforcement date (this shall also apply to a person who retired from office before the enforcement date of the new provision of the Act, but became disabled after the enforcement date), ③ even if the requirements for payment of a pension for wounds have already been established before the enforcement date, the new provision of the Act shall apply to the case where the requirements for payment of a pension for wounds are continued after the enforcement date, and ④ The scope of payment of a pension for wounds shall be determined as from the enforcement date of the new provision of the Act, ④ the point that the legislative authority has a broad legislative authority to determine the scope of payment of a pension for wounds after the enforcement date of the Act, and it is difficult to apply the new provision of the Act to a person retired from office retroactively after the enforcement date of the Act, even if there are various social and economic conditions to establish the right to receive a retirement pension.

(B) The time when the plaintiff became disabled

The term " disability caused by a disease or injury" means a case where a disease or injury is cured but a permanent mental or physical damage remains. In this case, healing means that the effect of treatment of a disease or injury becomes impossible or the symptoms thereof becomes fixed (see Supreme Court Decision 87Nu121, May 24, 198), and evidence No. 11-3 and evidence No. 4 of 0, June 19, 2012, the plaintiff is deemed to have been diagnosed on the remaining part of 6th of the body as a result of a new 6th diagnosis of the injury rating under the Act on the Protection of Persons of Distinguished Services to the State and the Act on the Protection of Persons of Distinguished Services to the State and the Act on the Protection of Persons of Distinguished Services to the State and the Act on the Protection of Persons of Distinguished Services to the State and the Act on the Protection of Persons of Distinguished Services to the State and the Act on the Protection of Persons of Distinguished Services to the State and the Act on the Protection of Persons of Distinguished Services to the State.

(C) Sub-determination

Therefore, the plaintiff is not subject to the new law provisions as a person who reached the disability before the enforcement date of the new law provisions. The plaintiff's assertion on this is without merit.

(2) Whether the decision of inconsistency with the Constitution has a retroactive effect

As long as the Constitutional Court has become unconstitutional with respect to a certain provision of the law and has entrusted the legislative body with the duty to revise or abolish the provision of the law in a constitutional manner, whether to apply the law retroactively and the scope of retroactive application depends on the legislative body’s discretion in principle. However, considering the purport of the decision of inconsistency with the Constitution with the Constitution as to the provision of the former Act or the specific norm control of the judgment of inconsistency with the Constitution as to the case where the decision of inconsistency with the Constitution has become an issue as to whether the provision of the former Act has become unconstitutional or not and where the former Act has been pending in the court as at the time of the decision of inconsistency with the Constitution, the decision of inconsistency with the Constitution as to the relevant provision of the former Act has to affect the retroactive effect on the case. Thus, even if the former provision of the former Act does not apply to this case, and the new provision of the law where the unconstitutionality has been removed is not applied (see Supreme Court Decision 2008Du18856, Sept. 29, 2011).

3. Conclusion

The plaintiff's claim is dismissed and the costs of lawsuit are assessed against the losing party.

[Omission of Relevant Statutes]

Judge 164,500,000