2016Nu62186. Revocation of a decision made on persons who rendered distinguished services to the State and persons ineligible for veterans;

A

Head of Gyeonggi-Nam Veterans Branch Office

Suwon District Court Decision 2013Gudan5245 Decided August 17, 2016

March 22, 2017

April 5, 2017

1. The judgment of the court of first instance is modified as follows.

A. The plaintiff's main claim is dismissed.

B. The Defendant’s decision on September 11, 2013 and the Plaintiff’s non-conformity with a person eligible for veteran’s compensation is revoked.

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

In the first instance judgment, the decision of the court below is revoked. In the first instance judgment, the decision that the Defendant rendered against the Plaintiff on September 11, 2013 and the corresponding decision of the person who rendered distinguished services to the State shall be revoked. In the first instance, the decision that the Defendant rendered against the Plaintiff on September 11, 2013 shall be revoked.

1. Quotation, etc. of the judgment of the first instance;

The reasoning of the judgment of this court is as follows, except for the modification of the last 2 pages of the judgment of the court of first instance to 5 pages 12 as follows, and it is identical to the reasoning of the judgment of the court of first instance (excluding the part of the judgment of the court of first instance). Thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420

b. Determination as to the legitimacy of the determination on a non-competent disposition of a person of distinguished service to the State (principal claim)

1) Unlike the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Act No. 11041, Sep. 15, 201; hereinafter “former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State”), Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State”) provides as one of the requirements to recognize persons of distinguished service to the State, such as soldiers or police officers wounded in the performance of their duties or during education and training directly related to national defense and security or to protect people’s lives and property (hereinafter “national defense, etc.”). Unlike the foregoing, those wounded in the performance of duties or education and training which are not directly related to national defense, etc. fall under persons of distinguished service to the State, and thus, those who need to be recognized as persons of distinguished service to the State under the Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State.

Article 3 [Attachment 1] 2 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter referred to as the "Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State") provides that "an accident or accident that occurred directly due to the performance of duties or the performance of duties," "an accident or accident that occurred directly due to the performance of duties or education and training," and "medically recognized disease that occurred due to an acute cause" as the criteria for persons of distinguished service to the State. On the other hand, Article 2 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State, Article 2 [Attachment 1] 2 of the Enforcement Decree of the Act on the Support for Persons, etc. of Distinguished Service to the State (hereinafter referred to as the "Enforcement Decree of the Act on the Persons, etc. of Distinguished Service to the State"), and Article 11 of the Enforcement Decree of the Act on the Persons, etc. of Distinguished Service to the Act clearly prescribes the criteria and language.

In full view of the contents and legislative developments of the above provisions of the Acts and subordinate statutes as well as the literal differences in the text and text of the provisions on the Act on Persons of Distinguished Services to the State and the Act on the Compensation for Veterans and Veterans, it is reasonable to view that “the direct cause relationship” required to be recognized as a soldier or policeman on duty under the Act on Persons of Distinguished Services to the State is insufficient to simply have a proximate causal relationship between the performance of duties, education, training, death, or wounds, and that the death

Therefore, where a person’s negligence or private circumstance, even though his/her performance of duties or education and training had partly affected the death or wound, is highly competing to the cause of the death or wound, it cannot be deemed that his/her performance of duties or education and training has become a “the cause of death or wound”, such as where his/her own physical talent or living habits, or where his/her existing disease has been partially deteriorated due to his/her performance of duties or education and training, it is difficult to deem that it falls under the scope of recognition of persons who have rendered distinguished services to the State (see, e.g., Supreme Court Decisions 2015Du4694, Jul. 27, 2016; 2014Du46034, Aug. 30, 2016).

2) According to the evidence revealed earlier, Gap evidence Nos. 2, 3, and 4 were examined, and there was no specific pain or treatment on the right pelvis before entering the military. However, during the military service, the plaintiff was diagnosed by the National Armed Forces Chuncheon Hospital, etc. at the National Armed Forces (U.S.), which was given treatment at an Ansan-si Hospital, A.S. Hospital, Hanam-si Hospital, and Seoul T.S. Hospital, on the right pelvis-si, after being given treatment at the National Armed Forces Hospital, etc., on three occasions, after undergoing an operation on the right pelvis-si on three occasions. On the part of official duties issued on February 18, 2013, the head of the 27 Assistant 79 Joint Hospital issued by the Plaintiff to the effect that "the plaintiff was undergoing night training at the New Disease Education Hospital on May 18, 2011, and entered the fact that the plaintiff was under the duty to undergo rehabilitation training at the National Armed Forces hospital and the military hospital’s waiting."

However, in full view of the aforementioned facts and circumstances, comprehensively taking into account the following facts and circumstances, which can be acknowledged based on the evidence Eul evidence Nos. 3 and 4, the result of the request for appraisal of medical records to the head of the first instance court and the head of the Guro Hospital affiliated to the Korea University of University, and the purport of the entire pleadings, the Plaintiff’s injury and disease in the instant case is merely a partial aggravation of the disease caused by his personal person due to the form and scientific transformation or malfunction of the classical transformation of the class, and it cannot be deemed that the Plaintiff’s duty or education and training was “the cause of the injury and training of the instant soldier.” The Plaintiff’s primary assertion is without merit

○ Basically, high-speed collision cliffic group refers to a pathmatic phenomenon that entails symptoms, such as high-speed pain and restriction on the scope of movement, due to the occurrence of a natural or submeric disease, etc., in the course of growth, which causes a repeated collision between the breath and the breath, or between the breath, and the breath, in the event of a high-speed movement, causing a repeated collision between the breath and the breath, thereby causing damage to the breath of the breath and the surrounding breath. These symptoms are often caused by active young adults or middle-year adults, which have been actively engaged in physical activities or light breath, etc., and the symptoms are worse by a continuous physical activity, such as continuous walking, etc.

According to the opinion of the medical record appraisal, in the MRI prosecutor of MRI prior to the operation of the plaintiff, the opinion of the ejaculation of the ejaculation (if the ejaculation was laid down or inside the ejaculation) caused by repeated collisions between the plaintiff and the plaintiff is being observed (if the ejaculation was laid down or inside the ejaculation), and the ejaculation of the ejaculation was progress more than the ejaculation, the ejaculation is observed at the right ejaculation, and the ejaculation is observed at the right ejaculation. The above opinion of the medical record appraisal shows that the plaintiff himself/herself conflicts with the ejaculation and the ejaculation for a considerable period of time without being aware of his/her symptoms or the ejaculation for a considerable period of time before the plaintiff entered the military, the plaintiff himself/herself has also become worse due to the lack of symptoms before his/her entry into the military.

○ Furthermore, the medical record appraisal showed that even though the pain after entering the military in the case of the Plaintiff, even though the pain of the Plaintiff aggravated, the fundamental cause occurred due to the form and error of the Plaintiff’s senior colon, and determined that the contribution rate of the king was about 70% on the symptoms of the Plaintiff’s senior coloned collision.

(c) Determination as to the legitimacy of the disposition of determining whether a person eligible for veteran's compensation is a person eligible for veteran's compensation;

1) Article 2 of the Veterans Compensationer Act and Article 2 [Attachment Table 1] 11 of the Enforcement Decree of the Veterans Compensation Act provides that “a person who has died or was injured due to a disease medically recognized to have a substantial causal relationship with the performance of his/her duties or education and training (referring to the rapid aggravation of the natural progress)” as a person eligible for veteran’s compensation. The existence of proximate causal relationship should be proved on the part of the assertion of such proximate causal relationship. However, it is not necessarily required to be proved medical or natural science, but it is presumed that there is a proximate causal relationship between education and training, performance of his/her duties, and injury or disease when considering various circumstances, and it is also included in cases where the basic disease or existing disease that can normally work in usual has caused training or overwork and that has rapidly aggravated at a speed above the natural progress (see, e.g., Supreme Court Decisions 2006Du6772, Sept. 6, 2007; 2013Du13839, Sept. 13, 2014).

2) According to the first instance court and the purport of the entire arguments on the appraisal of medical records for the head of the medical hospital affiliated with the university and college of Korea in this court, the following circumstances can be acknowledged by the entrustment of the examination of medical records to the head of the medical department affiliated with the university and college of Korea in this court, i.e., the examination of medical records: (i) it is general that the symptoms gradually worsen due to the absence of symptoms in daily life or due to the lack of physical activities, or due to the excessive physical activities; (ii) it is assumed that the symptoms gradually worsen due to the increase of physical activities after the entry of the military; and (iii) it is reasonable to 70% of the Plaintiff's contribution rate to the aggravation of the symptoms following the collision of the military; and (iv) it is reasonable to 25% (20% or 30%) of the participation of the military life in the military after entering the military; and (iv) it is acknowledged that there is no possibility that there was a conflict or high possibility that there was a conflict between the plaintiff's life and the right side in the military education and training.

Nevertheless, the Defendant’s disposition of determining whether the person was eligible for veteran’s compensation on the ground that there is no proximate causal relation with the performance of his/her duties is unlawful. The Plaintiff’s conjunctive assertion is reasonable.

2. Conclusion

Therefore, the plaintiff's primary claim seeking revocation of the decision corresponding to the person who rendered distinguished services to the State is dismissed as it is without merit, and the plaintiff's preliminary claim seeking revocation of the decision corresponding to the person holding distinguished services to the State should be accepted as reasonable. Since the judgment of the first instance court which partially different conclusions are unfair, it is so decided as per Disposition 1-A and Paragraph (b)

Judges Kim Yong-hoon

Judges Park Jae-woo

Judgment of the Supreme Court